Hon'ble Mahendra Dayal, J.
Heard Mr. Dinesh Kumar, counsel for the appellant-Insurance Company and Mr. Manoj Kumar Singh holding brief of Mr. Pankaj Dhar Dwivedi, counsel for the respondents Nos. 1 to 4.
As consented by the counsel for the appellant and counsel for the respondents Nos. 1 to 4, we proceed to hear the matter finally.
The instant FAFO has been filed by the appellant-Insurance Company, assailing the judgment and award dated 16.7.2012 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.9, Gonda in claim petition No. 22 of 2011 : Ashok Kumar Verma & others Vs. Shri Pavittar Singh & others, whereby the Tribunal awarded a sum of Rs.24,83,368/- along with interest at the rate of 6% per annum from the date of filing the claim petition till realization of the awarded amount.
The factum of accident and resultant expiry of deceased Sunita Rani Srivastava on 1.1.2011 has not been disputed by either of the parties.
The only submission raised by the counsel for the appellant-insurance company is that while passing the impugned award, the Tribunal erred in awarding 20% of the salary towards future prospects to the claimants, insofar as at the time of accident, deceased-Sunita Rani Srivastava was aged about 51 to 55 years and as per law laid down by the Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and another : 2009 (2) T.A.C. 677 (S.C.) and Reshma Kumari and others Vs. Madan Mohan and another : 2013 (2) T.A.C. 369 (S.C.), no addition should be made where the age of the deceased is more than 50 years.
Per contra, counsel for the respondents submits that in K.R. Madhusudhan & others Vs. Administrative Officer & Another : AIR 2011 SC 979, the Apex Court, on taking into consideration Sarla Verma (supra), observed that the rule of thumb evolved in Sarla Verma (supra) is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects and further held that even though the deceased was above 50 years of age, he shall be entitled to increase in income due to future prospects. Therefore, the Tribunal, after hearing the entire materials on record, has rightly granted 20% of the income of the deceased towards future prospects to the claimants. Thus, there is no illegality and infirmity in the impugned award.
We have heard counsel for the parties and perused the record.
While deciding the controversy involved in Sarla Verma (supra), the Hon'ble Supreme Court revisited number of its previous judgments including General Manager Kerala SRTC v. Susamma Thomas :(1994) 2 SCC 176, Tamil Nadu State Transport Corporation Limited Vs. S. Rajapriya and Others : 2005 (2) TAC 305 (SC) and Sarla Dixit (Smt.) and Another Vs. Balwant Yadav and Others : (1996) 3 SCC 179 and summarized various principles of law to be followed in such cases. On the question of future prospects, their Lordships held that in view of imponderables and uncertainties, the Court was in favour of adopting as a rule of thumb, an addition of 50% towards future prospects, where the deceased had a permanent job and was below 40 years. Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax'. The addition should be only 30% if the age of the deceased was 40 to 50 years. Their Lordships held that there should be no addition, where the age of deceased is more than 50 years. However, it was further observed that a departure therefrom should be made only in rare and exceptional cases involving special circumstances.
But, the Supreme Court, of course, in a later decision in K.R. Madhusudhan (supra), has made a deviation in a matter in which deceased was a government servant and was aged about 53 years at the time of accident. The Supreme Court observed that this case stands on different factual basis where there is clear and incontrovertible evidence on record that the deceased was entitled and in fact bound, to get a rise in income in the future, a fact which was corroborated by evidence on record. It was therefore held that rule of thumb laid down in Sarla Verma(supra) is to be applied in those cases where there was no cogent evidence to arrive at income of future prospects. The father of the claimant in that case stated that had the deceased been alive, he would have got promotion and would have received salary of Rs.20,000/- per month. In K.R. Madhusudhan (supra), it has been held that if the evidence justifies, the court can make departure from the rule of thumb, and the matter should then be taken to fall within the exceptional case, wherefor deviation would be permissible even as per the exception carved out by Sarla Verma itself.
In the present case, from perusal of the impugned award, it reflects that while deciding issue No. 6, the Tribunal, after hearing the parties and scrutinizing the evidence on record, has recorded a specific finding that at the time of accident, deceased Sunita Rani Srivastava was working as B.H.W.(woman) in Primary Health Centre and she was State Government Employee. As per service record, the date of birth of deceased was recorded as 28.10.1960. On looking to the date of birth mentioned in High School Marksheet as well as service record, the Tribunal came to the conclusion that age of the deceased, at the time of accident, was 50 years 2 months and 4 days. The Tribunal has further recorded that had she been alive, she would retire from the government service on 31.10.2020, which means that at the time of accident, about 9 years and 10 months were left in service to attain the age of retirement. Therefore, on perusing the pay-slip of the deceased as well as other documents and on placing reliance upon K.R. Madhusudhan (supra), the Tribunal has rightly came to the conclusion that there is enough evidence to justify deviation from the rule of thumb laid down by the Supreme Court in Sarla Verma (supra), on the aspect of future prospects, and if not double, at-least 20% can be added to the proven salary of the deceased by way of future prospects and, this can be done on the analogy that evidence justifies to make a departure from that rule of thumb. Therefore, there is no illegality and infirmity in the impugned award.
It may be added here that in Reshma Kumari (supra), the Apex Court in paragraph 36 has approved the method of standardization of addition to income for future prospects in achieving certainty in arriving at appropriate compensation and has also held that a departure from the principle can only be justified in extraordinary circumstances and very exceptional cases. Further, in Reshma Kumari (supra), the ratio laid down in K.R. Madhusudhan (supra) has not been discussed.
For the reasons aforesaid, we are of the view that there is no illegality and infirmity in the impugned award.
Accordingly, FAFO is dismissed. There is no order as to costs.
Order Date : 16.9.2014 Ajit/-