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2012 DIGILAW 330 (BOM)

Vanita w/o. Bharat Dake v. Kashinath s/o. Girjappa Baikare

2012-02-13

M.T.JOSHI

body2012
Judgment Admit. Heard finally with consent of both sides. 2. First Appeal No.2582 of 2011 is arising out of M.A.C.P. No.74 of 2008 filed by the original claimants i.e. legal representatives of deceased, aggrieved by lesser amount of compensation. First Appeal No.2514 of 2011 is filed by the injured claimant against the award passed in M.A.C.P. No.73 of 2008, for enhancement of compensation than the compensation awarded by learned Member, Motor Accident Claims Tribunal, Udgir, Camp at Ahmedpur. 3. Since the original respondents have not challenged award passed by the learned Member, Motor Accident Claims Tribunal, the issue as to who was rash and negligent in driving the vehicle, has now already been decided finally and the findings of the learned Member has attained finality. In view of this matter, we are concerned with the grant of quantum of compensation in both the Appeals. First Appeal No.2582 of 2011 : 4. So far as First Appeal No.2582 of 2011 is concerned, deceased Bharat Dake was working as Asstt. Teacher. His age was 47 years at the time of untimely death. Learned Member considered the actual salary of the deceased at the time of his death. He did not take into consideration the prospect of increase in the salary of deceased in future though definite evidence regarding recommendations of sixth pay commission and the actual process for payment of the same was in the womb at the time of recording of evidence. 5. Learned counsel for the appellant submits that in view of the ratio laid down by the Apex Court in the case of Sunil Sharma & ors. Vs. Bachitar Singh & ors, 2011 AIR (SCW) 2811, the learned Member ought to have granted 30 % increase in the multiplicand. It is further submitted that after considering the fact that the deceased had five family members, learned Member, instead of deducting 1/3rd of income towards the personal expenditure of the deceased, ought to have assumed that the deceased used to expend 1/5th of his income on himself and therefore, from the entire income of deceased, deducting 1/5th instead of 1/3rd, compensation should have been granted. 6. Learned counsel for the respondent -insurer, on the other hand, submits that the pay revision though was recommended, yet it was not paid even at the time, the witness from the employer had entered the witness box. 6. Learned counsel for the respondent -insurer, on the other hand, submits that the pay revision though was recommended, yet it was not paid even at the time, the witness from the employer had entered the witness box. He further submits that the deductions and personal expenditure appreciated by the learned Member is just and proper. 7. On the basis of this material, following point arise for my determination Whether the quantum of compensation as granted by the learned Member is just? My answer to point is negative for the reasons to follow. REASONS 8. In the present case, there was definite evidence that there would be increase in the salary of the deceased, had he not met with accidental death. In the case of Sunil Sharma and ors (supra), considering the various earlier decisions of the Apex Court particularly, Sarla Varma and ors Vs. Delhi Transport Corporation & anr., JT 2009 (6) SC 495, the Apex Court accepted a 'rule of thumb' that in addition to the regular income, additional 30% of the income should be granted in the age group of deceased between 40 years and 50 years. In the circumstances, learned Member has wrongly observed that since the hike in the salary was yet to be paid, same cannot be considered. 9. Considering this fact, rise of 30% in the admissible salary of the deceased i.e. minus statutory deductions, would just indicate the income of the deceased. Since the deceased has five dependents, relying on the ratio in the case of Sarla Varma (supra), deduction of 1/4th towards personal expenses would be just and proper. Thus, upon addition of 30% to the actual income of the deceased, 1/4th would be deductible towards personal expenditure of the deceased. 10. The deceased was 47 years' old and the multiplier of 13 as applied by the learned Member is just and proper. Thus, the loss of dependency would come to Rs.25,36,875/-, as per the following table: Gross Salary Rs.16,879/- Professional Tax (-) Rs.200/- Monthly Income Rs.16,679/- Annual Income Rs.16,679/-x 12 = 2,00,148/- 1/4th deduction Rs.50,037/- Multiplicand Rs.2,00,148-Rs.50,037=Rs.1,50,111/- Loss of Income Rs.1,50,011/-x 13 = Rs.19,51,443/- 30% addition of future increase Rs.5,85,432.90/-Total Loss of Income Rs.19,51,443/-+ 5,85,432/-= Rs,25,36,875/-Compensation payable 1) Total loss of income Rs.25,36,875/-2) Consortium Rs.5,000/-3) Funeral expenses Rs.2,000/-4) Loss of estate Rs.2,500/-TOTAL Rs.25,46,375/- 11. In view of above fact, First Appeal No.2582 of 2011 Appeal is allowed. In view of above fact, First Appeal No.2582 of 2011 Appeal is allowed. Upon deposit of deficit Court fees by the appellants, the respondents are directed to jointly and severally pay additional compensation of Rs.12,78,875/-i.e. Rs.25,36,875/-minus Rs.12,58,000/-, with interest at the rate of 9% per annum from the restoration of petition before learned Member till the realisation of the entire awarded amount and thereafter, on the difference between the award of the learned Member and the compensation as granted by this Court with proportionate costs. 12. As regards investment to be made for securing the future of some of the appellants claimants, the order that is passed by the learned Member shall also remain applicable so far as enhanced amount of award is concerned. First Appeal No.2514 OF 2011: 13. In the present appeal, learned counsel for appellant submits that though the employer of the insured and claimants-appellants had entered into witness box and deposed that the appellant was getting salary of Rs.40,000/-per annum, learned Member did not believe notional income and salary of Rs.3,000/-per month was presumed. 14. Learned counsel for respondents, however, pointed out the fact that though, according to the witnesses as well as appellants, the documentary evidence regarding employment of appellant in the nature of Form No.16 of the income tax was available, the same was not produced. Learned Member drawn an adverse inference against the appellant for non production of documentary evidence to show that he was employed with a petrol pump. 15. No fault can be found with the finding of the learned Member. Appeal, therefore, deserves to be dismissed without costs. First Appeal No.2514 of 2011 is dismissed without costs.