The challenge in this appeal is to the common judgment and award dated 20/3/1998 rendered by the Ld. M.A. C. Tribunal [Aux. 2], Nadiad, in M.A.C. Petition No. 365/1989 as well as M.A.C. Petition No. 366/1989. The appellants herein, who are original claimants in M.A.C. Petition No. 365/1989 preferred this appeal feeling aggrieved by and dissatisfied with the amount of compensation awarded to them by the Tribunal. In the appeal, seeking enhancement of the compensation, it is requested that the enhancement is claimed of Rs.3 lac more. 2. Mr. BP Munshi, Ld. Advocate for the appellants – original claimants, at the outset, submitted that despite the fact that there was sufficient oral and documentary evidence on record regarding monthly income of the deceased, the Tribunal only assessed Rs.3,000/- p.m., as income of the deceased. It is submitted that the deceased was aged about 35 years and he had a very bright academic career as he was D. Pharm and initially he was employed in Railway Hospital and thereafter, he resigned from said service and started his own business as share broker and my attention was drawn to the claim petition wherein it has been stated that the deceased was running his share broker business in the name and style of 'Parikh Investment Services' and he was agent of NSC, LIC, UTI, etc., and that he was earning handsome amount by way of commission and that he was tax payer. My attention was drawn to the deposition of widow of the deceased name Vibhaben Parikh, examined before the Tribunal and submitted that in her examination-in-chief, she stated that her husband, at the time of death, was earning Rs.5,000/- p.m. It is submitted that on behalf of the Insurance Company, said aspect is not challenged and the only fact placed in her cross-examination was pertaining to income tax returns. Mr. Munshi, Ld. Advocate for the appellants, however, submitted that it is true that the copies of relevant income tax returns were not placed before the Tribunal, but Challans showing the payment of tax came to be produced. It is further submitted that even considering the Challans, it clearly transpires that the monthly income of the deceased can never be less than Rs.5,000/-.
2.1. Alternatively, Mr. Munshi, Ld. Advocate for the appellants submitted that the Tribunal did not take into consideration any future prospective income of the deceased. It is further submitted that the amount awarded by the Tribunal towards other heads namely loss of expectation of life, consortium, etc., is on a very lower side. It is, therefore, submitted that the appeal may be allowed.
3. Mr. Shah, Ld. Advocate for the respondent – New India Insurance Co., at the outset, supported the impugned judgment and award rendered by the Tribunal and submitted that the Tribunal was completely justified in coming to the conclusion that the deceased was earning Rs.3,000/- p.m. It is submitted that the widow, in her evidence deposed that the deceased was earning Rs.5,000/- p.m., but in support thereof, the relevant copies of income tax returns have not been produced. It is further submitted that so far as the amount awarded by way of compensation by the Tribunal under the other head, namely loss of expectation of life, consortium, etc., comes to Rs.30,000/- and in connection with that, claim petition was filed in the year 1989 and Rs.30,000/- awarded by the Tribunal cannot be said to be on lower side. However, Mr. Shah submitted that it is true that the Tribunal did not take into consideration the future prospective income of the deceased, but considering the fact that in absence of any cogent and clear evidence when the Tribunal assessed the monthly income of the deceased at Rs.3,000/- p.m., and further considering the fact that the deceased succumbed to the injuries in a vehicular accident which occurred in the year 1989, the assessment made by the Tribunal regarding monthly income of the deceased was even otherwise on higher side and, therefore, it is submitted that viewing the appeal from any angle, it deserves dismissal.
4. Considering the impugned judgment and award rendered by the Tribunal, the undisputed fact which emerged from the record of the case is that the vehicular accident occurred on 30/1/1989 and in the accident the deceased succumbed to the injuries. About the academic career of the deceased, no major dispute is raised. Even about the age of the deceased being 35 years is not in serious dispute. In the claim petition, there is no dispute that the claimants pleaded that at the time of the death, the monthly income of the deceased was Rs.5,000/-. It further transpires that after completing his studies, initially the deceased joined service in Railway Hospital, but thereafter he resigned and started his own business in the name and style of 'Parikh Investment Services' and he was agent of NSC, LIC, etc., and he was earning out of the commission amount. Considering the oral evidence in the form of deposition of widow of the deceased, namely Vibhaben Parikh, in her evidence she stated that her husband was earning Rs.5,000/- p.m., and that she has produced relevant documentary evidence like income tax return, etc. She further stated that in the year in which her husband died, his taxable income was Rs.60,000/-. In her cross-examination, she admitted that except income tax returns, she has no other documentary evidence to substantiate her say regarding the income of her deceased husband. There is no dispute that what was produced before the Tribunal was Challans showing payment of tax. It further transpires that if the claimants did not possess any copies of past income tax returns, the same could have been procured by them from the Income Tax Department or considering the nature of business of the deceased, the claimants could have produced certain other documentary evidence in the form of books of accounts or other relevant documents, but nothing whatsoever was done. In above view of the matter, it transpires that the assessment arrived at by the Tribunal that considering the bright academic career of the deceased and further the fact that the accident occurred in the year 1989, the monthly income assessed by the Tribunal at Rs.3,000/- per month cannot be said to be on lower side.
5. However, one glaring defect which emerges from the impugned judgment and award rendered by the Tribunal is that though at the time of death, the deceased was about 35 years and though the actual monthly income of the deceased at the time of death was assessed by the Tribunal at Rs.3,000/-, the Tribunal failed to consider the future prospective income of the deceased. Even in the impugned judgment and award, no reasons are assigned by the Tribunal as to why the future prospective income of the deceased has not been considered.
6. Seen in the above context, this Court is of the opinion that the Tribunal should have awarded just and fair amount of compensation keeping in mind the future prospective income of the deceased. In the instant case, the Tribunal came to the conclusion that the actual monthly income of the deceased at the time of his death was Rs.3,000/- p.m. The deceased was aged about 35 years. In above view of the matter, this Court is of the opinion that the Tribunal should have taken into consideration the future prospective income of the deceased at-least at Rs.4,500/-
p.m. As per the calculation arrived at by the Tribunal, the deceased was a married person having family to maintain and in that case, 1/3rd amount came to be deducted towards self expenses of the deceased. Deducting 1/3rd amount out of Rs.4,500/- p.m., the net monthly loss to the future dependency to the claimants comes to Rs.3,000/- p.m., and Rs.36,000/- p.a. The Tribunal granted yearly multiplier of 16 years. Under such circumstances, the amount of loss to the dependency benefit comes to Rs.5,76,000/-
[36,000 x 16]. The Tribunal awarded Rs.3,84,000/- by way of compensation under the said head and, therefore, deducting Rs.3,84,000/- from Rs.5,76,000/-, the net amount of difference comes to Rs.1,92,000/-, which the appellants - claimants are entitled to receive by way of enhancement.
7. It has been submitted that the Tribunal failed to consider other heads namely, funeral charges, loss to estate, loss to the expectation of life, consortium, etc. To this, Mr. Shah, Ld. Advocate for the respondent – Insurance Company submitted that even considering para. 15 in the impugned judgment and award, the Tribunal awarded lumpsum amount of Rs.30,000/- in-all under these heads and in connection with the vehicular accident and death which occurred in the year 1989, according to Mr. Shah, Rs.30,000/- cannot be said to be on lesser side. Considering the facts and circumstances of the case, this Court comes to the conclusion that the amount of Rs.30,000/- awarded by the Tribunal under the different other heads cannot be said to be on lesser side.
8. The net result is that the appellants are entitled to recover Rs.1,92,000/- more under the head of loss to the dependency benefits. In the impugned judgment and award, the Tribunal granted running interest @ 12% p.a., from the date of claim petition till the realization. The respondent – Insurance Company has not preferred any separate appeal or any cross objection and, therefore, the impugned judgment and award qua the interest and proportionate costs, etc., shall have to be maintained and upheld.
9. For the foregoing reasons, the appeal is partly allowed and maintaining the impugned judgment and award dated 20/3/1998 rendered by the Ld. M.A.C Tribunal [Aux.II], Nadiad, in M.A.C. Petition No. 365/1989 and other cognate matter, it is hereby ordered that the appellants original claimants are entitled to recover Rs.1,92,000/- [Rupees one lac ninety two thousand only] more by way of compensation with the same rate of interest and proportionate costs awarded by the concerned Tribunal. After the deposit of said amount with the concerned Tribunal, the concerned Tribunal shall pass appropriate order for disbursement on the same line in which the initial order of disbursement was passed. There shall no no order as to costs.
(J.C.UPADHYAYA, J.) * Pansala.