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2012 DIGILAW 433 (ORI)

Saraswati Patra v. Sahu Transport Corporation

2012-09-28

V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. : The legal representatives of the deceased Narayan Prasad Patra have filed the present appeal being aggrieved by the impugned judgment and award dated 21.1.1998 passed by the Second Motor Accident Claims Tribunal, Cuttack (for short ‘Tribunal’) in Misc. Case No.747 of 1990 awarding compensation of Rs.1,17,500/- with 9% interest from the date of filing of the case till payment urging various facts and legal contentions. 2.It is not necessary to advert to the various facts in this judgment for the reason that on the basis of the findings recorded on the contentious issues framed by the Tribunal with reference to the pleadings, the Tribunal awarded compensation of Rs.1,17,500/- which has already been satisfied by the insurance company. Therefore, the grounds urged in this appeal in justification of the enhancement of compensation are to be stated for proper appreciation of the rival legal contentions with a view to find out as to whether the appellants are entitled for enhancement of compensation, if so, to what amount. 3.Mr. Tahali Charan Mohanty, learned senior counsel appearing on behalf of the appellants, submits that while computing the compensation the Tribunal has not taken into consideration the pleadings and legal evidence on record particularly with regard to potential employment of the deceased on the date of accident and death. He further submits that the deceased was in Government service and he had another three years of service to this credit at the time of accident. During the said period he would have got increments and promotional benefits and there was also likelihood of pay revision. If that would have been taken into consideration, the compensation would have been much more than what has been awarded. Further the Tribunal has not taken into consideration all the relevant aspects of the case including what he would have contributed to the family, if he would have alive. The last pay certificate marked Ext.7 revealed that the deceased was getting salary of Rs.4256.00. The tribunal accepted the evidence of the widow of the deceased that the deceased was contributing Rs.3,000.00 per month for the maintenance of the family and calculating on that basis the tribunal found that his annual contribution would come to Rs.36,000/-. The last pay certificate marked Ext.7 revealed that the deceased was getting salary of Rs.4256.00. The tribunal accepted the evidence of the widow of the deceased that the deceased was contributing Rs.3,000.00 per month for the maintenance of the family and calculating on that basis the tribunal found that his annual contribution would come to Rs.36,000/-. Since by the time of the accident, the deceased had only three years of service left, the tribunal held that the total loss of dependency would be Rs.36,000.00 x 3 = Rs.1,8,000.00/ and adding a sum of Rs.9,5000.00 for the loss of consortium, loss of estate and funeral expenses, the tribunal held that the appellants are entitled to compensation of Rs.1,17,500.00. This approach of the tribunal, according to Mr. Mohanty, learned senior counsel appearing on behalf of the appellants, is contrary to the judgment of the apex Court in the case of Santosh Devi v. National Insurance Company Ltd., 2012 AIR SCW 2892 on which he has placed strong reliance. He submitted that the deceased was a government servant and after retirement he would have been entitled to pension and other service benefits and the Tribunal did not take into consideration the said aspects and granted compensation taking into consideration the period of service left which is contrary to the judicial pronouncements. 4.Mr. Nayan Behari Das, learned counsel for the respondent No.3 sought to justify the correctness of the compensation awarded in favour of the appellants contending that the Tribunal being the fact finding authority, on the basis of the facts and legal evidence on record, awarded just and reasonable compensation. Therefore, the same need not be interfered with by this Court in exercise of appellate jurisdiction as the impugned judgment is not vitiated either on erroneous reasoning or error in law. 5.In the present case, the deceased was a government servant belonging to the Orissa Administrative Service. He was getting a total salary of Rs.4265.00 per month at the time of accident as mentioned in the salary certificate Annexure-7 which has been accepted by the Tribunal. Mr. Mohanty placed strong reliance upon judgment in Santosh Devi (supra) and submitted that the same is applicable to the case of the appellant and therefore compensation payable in the present case may be calculated on the principle decided in Santosh Devi case. Mr. Mohanty placed strong reliance upon judgment in Santosh Devi (supra) and submitted that the same is applicable to the case of the appellant and therefore compensation payable in the present case may be calculated on the principle decided in Santosh Devi case. In that case the deceased was self-employed and applying the principle laid down in Sarala Verma’s case that where the deceased is self-employed or is on a fixed salary without provision for annual increment, the Courts will usually take only the actual income at the time of death for calculating the compensation, the Tribunal and the High Court calculated the compensation by taking different multiplier without giving the benefit of 30 per cent increase in the income of the deceased which he would have earned for the next 25 years. The apex Court in Santosh Devi held that the benefit of 30% increase should also be applied to self-employed or fixed salary group and that for a person whose monthly income is Rs.1,500.00, he would at best spend 1/10th of his income on himself or use that amount as personal expenses and leave the rest for his family. In this case the deceased was a government servant who was entitled to increment every year and other service benefits and pension after retirement. Therefore, the case is squarely covered by the decision in Sarala Verma’s case (supra) and not Santosh Devi’s. Undisputedly, the deceased was getting a salary of Rs.4256.00 per month at the time of accident, he was aged 55 years and had only three years of service left before superannuation. Therefore, there should be no addition to the actual salary income towards future prospects in view of the decision in Sarala Verma’s case (supra). The number of dependant family members of the deceased being 5, 1/4th, i.e. Rs.1054.00 is to be deducted towards personal and living expenses of the deceased. Hence, the contribution to the family per month would come to Rs.3192.00 which would be Rs.38,304.00, or Rs.38,300 per annum. Having regard to the age of the deceased, multiplier 11 is to be applied and applying the same, the total dependency would come to Rs.4,21,300.00. Adding Rs.50,000.00 towards compensation on other conventional heads such as loss of consortium, love and affection, loss of estate, funeral expenses etc. Having regard to the age of the deceased, multiplier 11 is to be applied and applying the same, the total dependency would come to Rs.4,21,300.00. Adding Rs.50,000.00 towards compensation on other conventional heads such as loss of consortium, love and affection, loss of estate, funeral expenses etc. as held by the apex Court in the case of Kerala SRTC v. Susamma Thomas, AIR 1994 SC 1631 , the total compensation payable will be to Rs.4,72,400.00. Accordingly, it is directed that the appellants are entitled to compensation of Rs.4,72,400.00. The enhanced amount of compensation, i.e. Rs.3,54,900.00 (Rs.4,72,400.00-1,17,500) shall carry interest at the rate of 7 per cent from the date of application till realization. Respondent No.3- insurance company is directed to pay to the appellants the enhanced compensation within a period of six weeks from the date of receipt of this order. The Registry is directed to draw up the modified award in the aforesaid terms. Ordered accordingly.