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2014 DIGILAW 177 (ORI)

Anjana Das v. Gopinath Ray

2014-03-18

A.K.RATH

body2014
JUDGMENT : A.K. RATH, J. 1. Aggrieved by and dissatisfied with the award dated 5.9.2008 passed by the learned 1st M.A.C.T. Puri in MAC No. 98 of 2005, the claimants have filed this appeal for enhancement of the compensation amount. 2. The case of the claimants is that the deceased Mahendra Kumar Das was working as a cashier in United Commercial Bank, Nachuni Branch. On 14.2.2005, while he was proceeding from Balugaon to Nachuni in his motorcycle bearing registration number OR-07-C-8743 to attend his duty, on NH-5 at Baradi Chhak at about 9.30 A.M. a bus bearing registration number OR-02L-0189 came from the opposite direction being driven in a rash and negligent manner dashed against the motorcycle, as a result of which he fell down and succumbed to the injuries on the spot. 3. Though notice was issued to the owner of the offending bus he chose not to appear and as such he was set ex parte, Pursuant to show cause notice, opposite party No.2, insurer of the offending bus, entered appearance and filed the written statement denying its liability. On the basis of the pleadings of the parties, learned Tribunal struck five issues. To prove the case, the claimants examined four witnesses and on their behalf, nine documents were exhibited. On behalf of opposite party No.2 one document was exhibited. 4. On an analysis of the evidence on record, both oral and documentary and pleadings of the parties, learned Tribunal came to hold that Mahendra Kumar Das died due to rash and negligent driving of the driver of the offending bus. Having held so, learned Tribunal awarded a sum of Rs. 12,87,020/- and directed the insurer to pay the same with interest at the rate of 8% per annum from the date of claim i.e. 6.4.2005. 5. Heard Mr. S. Swain, learned counsel for the appellants and Mrs. S.B. Panda, learned counsel for respondent no.2. 6. Mr. Swain, learned counsel for the appellants, submits that learned Tribunal has committed patent error in not adding 30% of actual salary to the actual salary income of the deceased towards future prospects. 7. Per Contra, Mr. Panda, learned counsel for the respondent No.2, supports the award passed by the learned Tribunal. 8. Deceased was working as a cashier in United Commercial Bank, Nachuni Branch. Taking note of the salary certificate of the deceased, Ext. 7. Per Contra, Mr. Panda, learned counsel for the respondent No.2, supports the award passed by the learned Tribunal. 8. Deceased was working as a cashier in United Commercial Bank, Nachuni Branch. Taking note of the salary certificate of the deceased, Ext. 5, learned Tribunal came to hold that the net salary of the deceased was Rs. 10,646/-. Deducting 2/3rd from the same, learned Tribunal applied 15 multiplier. 9. In Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , after having survey the earlier decisions, the Hon'ble apex Court in paragraph-24 held as follows:- "(i) Addition to income for future prospects: 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. (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 the deceased is more than 50 years. Though 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. 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 the made only in rare and exceptional cases involving special circumstances." 10. The ratio of the said judgment applies with full force in the present case. Deceased was 42 years at the time of accident. He was working as a Cashier in United Commercial Bank. In view of the same, if 30% of actual salary of the deceased is added to the actual salary towards future prospects, then the compensation would be to Rs. 16,61,040/- (Rs. 10,646 + Rs. 3,193 X 2/3 X 12 X 15). 11. He was working as a Cashier in United Commercial Bank. In view of the same, if 30% of actual salary of the deceased is added to the actual salary towards future prospects, then the compensation would be to Rs. 16,61,040/- (Rs. 10,646 + Rs. 3,193 X 2/3 X 12 X 15). 11. In view of the analysis made in the preceding paragraphs, the award is modified to the aforesaid extent. Since the learned Tribunal has awarded interest @ 8% per annum from the date of claim, the enhanced award amount will carry out the interest @ 8% from the date of claim. Respondent No.2 is directed to pay the enhanced compensation amount to the claimants within two months from the date of the order. The appeal is allowed to the extent indicated above. Appeal allowed to the extent indicated.