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2014 DIGILAW 136 (GUJ)

New India Assurance Co. Ltd. v. Hiraben

2014-01-30

K.J.THAKER

body2014
JUDGMENT : K.J. Thaker, J. By way of the present appeal, the appellant - Insurance Company has felt aggrieved by the judgment and order dated 31.12.2009 passed by the Motor Accident Claims Tribunal (Main), Sabarkantha @ Himmatnagar in MACP No.1216 of 2002 awarding a sum of Rs. 18,42,620/- together with interest @ 6% p.a. 2. The facts of the case are that on 13.8.2002, deceased Motibhai was going towards Bhiloda as pillion rider on scooter of the respondent No.2 herein and at about 10.00 a.m., the respondent No.2 parked his scooter on the road side and went towards his In-law's house for giving message and at that time, the driver of Jeep came and dashed the said scooter due to which Motibhai had sustained fatal injuries. The claimants have claimed Rs. 20,00,000/- under different heads. 3. The contention of the Insurance Company is that as per the decision of the Hon'ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, 2009 (6) SCC 125, for the salaried class for the age of 50 years, prospective income is not required to be considered. The Tribunal has considered the future prospective income of the deceased at Rs. 20,677/-. Hence, there is an error committed by the Tribunal as the deceased was aged 51 years at the time of accident and was doing job in Sabarkantha District Central Cooperative Bank, Bhiloda. 4. After the decision in the case of Sarla Verma, the Honble Apex Court in the case of K.R. Madhusudan and others v. Administrative Officer and another, AIR 2011 SC 979 , has held as under :- "8. The law regarding addition in income for future prospects has been clearly laid down in Sarla Varma (Smt.) & Others v. Delhi Transport Corporation & another [ (2009) 6 SCC 121 ] and the relevant portion reads as follows :- In Susamma Thomas this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased 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. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where 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." 9. In the Sarla Verma (supra) judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances. We are of the opinion 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. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same." 5. In this case, it is an admitted position of fact that the deceased was having a job. His future prospect and age were considered. The choice of multiplier cannot be found fault with. All that the appellant Insurance Company has challenged is doubling of the income and the calculation made thereon, though in 2009, this was the formula normally applied on the basis of the judgment in the case of Sushma Thomas. 6. His future prospect and age were considered. The choice of multiplier cannot be found fault with. All that the appellant Insurance Company has challenged is doubling of the income and the calculation made thereon, though in 2009, this was the formula normally applied on the basis of the judgment in the case of Sushma Thomas. 6. In the decision of K. Madhusudan and others, the decision of Sarla Verma has been reiterated. However, considering the latest decision of the Division Bench of this Court in the case of GSRTC v. Mrs. Sandya, the appellants are entitled to receive compensation as under :- The income of the deceased considered by the Tribunal is Rs. 13,765/- and 50% will have to be added and from the said amount, 50% is to be deducted towards the personal expenses of the deceased as he was a service person. Therefore, the income of the deceased would be Rs. 10,000/- per month and hence, the annual income of the deceased is considered at Rs. 1,20,000/-. The deceased was aged 51 years at the time of accident and hence, multiplier of 11 given by the Tribunal is just and proper and is not required to be disturbed and hence, the claimants are entitled to get Rs. 13,20,000/- towards future loss of dependency instead of Rs. 18,19,620/- as awarded by the Tribunal. The amounts awarded under the other heads are not disturbed. 7. In the result, the appeal is partly allowed. The judgment and award passed by the Tribunal which is under challenge is modified to the above extent. In all, the claimants are entitled to an amount of Rs. 13,47,000/- instead of Rs. 18,42,620/-. From the Fixed Deposit amount lying with the Tribunal, the Insurance Company shall be entitled to refund of the amount. No order as to costs. Appeal partly allowed.