1. The appellants herein have challenged the award dated 28.11.1996 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar in Motor Accident Claims Petition No. 13 of 1996 so far as the Tribunal awarded Rs. 4,04,000/- by way of compensation to the original claimants along with 12% interest if compensation is paid within six months or else 15% if the compensation is paid after six months of the date of award.
2. It is the case of the appellants that on 20.12.1995 while the deceased was travelling in a public carrier bearing registration no. GJ- 4- T 5416 driven by the original opponent no. 1 in a rash and negligent manner, another carrier bearing registration no. GTA 1223 driven by the original opponent no. 4 also in a rash and negligent manner came from the opposite side and collided with the public carrier in which the deceased was travelling. As a result of the said accident, the deceased sustained serious injuries. He succumbed to those injuries. The claimants being legal heirs and representatives of the deceased therefore filed claim petition for compensation to the tune of Rs. 6,00,000/-. The Tribunal after hearing the parties passed the aforesaid award.
3. Learned advocate appearing for the appellant-Insurance Company submitted that the Tribunal erred in quantifying the award at Rs. 4,04,000/- . He submitted that the dependency loss of Rs. 3,84,000/- awarded by the Tribunal is on the higher side and therefore the same is required to be reduced. He also submitted that the Tribunal erred in considering the monthly income of the deceased at Rs. 4000/- in absence of any cogent evidence on record. He submitted that infact considering the income at Rs. 2200/- per month and in view of the decision of the Apex Court in the case of Smt Sarla Dixit & Anr Vs. Balwant Yadav & Ors, reported in 1996 AIR 1274 (=1996 SCC (3) 179) the income ought to have been doubled and added to the present income and then the dependency loss ought to have been assessed on the average of the same which comes to Rs. 2200/- per month.
4. Learned advocate appearing for the respondent supported the impugned award and submitted that the award having been passed after considering the evidence in detail does not call for any interference by this Court. He submitted that the Tribunal has rightly assessed the income assessed by the Tribunal. He has relied on the decision of the Apex Court in the case of Sarla Verma & Ors Vs. Delhi Transport Corp. & Anr. Reported in 2009(6) SCC 121 and submitted that in view of the same, the Tribunal has erred in deducting 1/3rd from the income when it ought to have been 1/4th. He submitted that no compensation under the head of funeral expenses has been awarded.
5. The Tribunal has gone into the evidence in detail and has come to the conclusion that the accident in question happened because of the negligence of the both the drivers. However, the income assessed by the Tribunal seems to be on a higher side. No concrete evidence is produced on record to substantiate the claim of the claimants as far as income is concerned. The Tribunal has observed that there is no documentary evidence on record to show the actual income and inspite of the said fact the Tribunal ought not to have assessed the income at Rs. 4000/- on mere pleadings. In such an event, assessment of income at Rs. 2200/- per month would have been just and proper.
5.1 Considering the formula laid down in the case of Smt. Sarla Dixit (supra) the income of the deceased is to be calculated. The income should be doubled and actual gross income should be added. By doubling, the amount would come to Rs. 4400/- and by adding current income of Rs. 2200/- it would come to Rs. 6600/-. Average monthly income can be derived by dividing the same by 2. Therefore the average income would come to Rs. 3300/-.
6. In the case of Sarla Verma & Ors Vs. Delhi Transport Corp. & Anr. Reported in 2009(6) SCC 121 it is held as under:
“In Susamma Thomas this Court increased the income by nearly 100%. In Sarla Dixit the income was increased only by 50% and in Abat Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties,w e are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the decased towards future prospects, whee 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 fo the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Thouugh the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Wehr e the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.) the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
Where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family numbers is 2 to 3, one- fourth (1/4th), where the number of Dependant family members is 4 to 6, and one-fifth (1/5th) where the number of Dependant family members exceed six.
Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because ti is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parents/s and siblings is likely to be cut drastically. Further subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a Dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be Dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a Dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and Dependant on the income of the deceased, as in the case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
6.1 Therefore considering the dependents to be five in number, 1/4th is required to be deducted. Accordingly, deducting 1/4th from the total income for personal expenses, the amount dependency loss per month shall come to Rs. 2475/- (rounded off to Rs. 2500/-) and Rs. 30,000/- per annum. The multiplier of 12 adopted in the present case is just and proper and accordingly the future dependency loss shall come to Rs. 3,60,000/-. Against this, the Tribunal has awarded Rs. 3,84,000/- which is excessive.
7. The Tribunal ought to have awarded Rs. 5000/- for funeral expenses. As regards the rest of the award under various heads is just and proper and no interference is required. Therefore the claimants are in all entitled to Rs. 3,85,000/- as compensation (Rs. 3,60,000 for future loss of income + Rs. 5000 for funeral expenses and Rs. 20000 for loss to estate and consortium). The Tribunal has awarded Rs. 4,04,000/- as compensation and therefore an amount of Rs. 19000/- is required to be refunded to the appellant insurance company.
8. The interest of 15% imposed by the Tribunal is on a higher side. This court is of the view that interest of 12% ought to have been imposed by the Tribunal. The award is required to be modified to the aforesaid extent.
9. Accordingly, appeal is partly allowed. The claimants shall be entitled to only Rs. 3,85,000/- by way of total compensation. The balance amount along with proportionate interest shall be refunded to the insurance company. The appellant shall be liable to pay interest @ 12% instead of 15% from the date of claim petition till realisation. The amount deposited by the appellants qua 3% interest shall be refunded. The proportionate amount in FDR shall be paid to the claimants. The award of the Tribunal is modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//