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2014 DIGILAW 458 (CHH)

Rameshwari v. Suresh Yadav

2014-12-12

P.SAM KOSHY

body2014
ORDER 1. This is the appellants/claimants appeal under Section 173 of the Motor Vehicles Act (for short the Act) seeking enhancement of the award. By way of the instant appeal, the claimants had sought for the modification of the order dated 26.3.2002 passed by the Additional Motor Accidents Tribunal, Bilaspur (for short the Tribunal) in Claims Case No. 18 of 2001. 2. The facts in nutshell are that the deceased who is the husband of appellant No. 1 and father of appellants No. 2 to 4 and the son of appellant No. 5 met with an accident on 8.2.2001. The accident arose when the deceased Gouri Shankar along with his friend, was going on a bicycle which hit with a truck bearing registration No. MP 26 D 2993 loaded with coal being driven by respondent No. 1, owned by respondent No. 2 and insured by respondent No. 3. 3. It is the claim of the appellants/claimants that at the time of the accident, deceased Gouri Shankar Shyam was working as an Assistant Teacher under the State Government and was working at a Primary School, Janakpur and his monthly salary at that time of accident was Rs. 7,261/-. On account of the death of the deceased Gouri Shankar Shyam, the claimants i.e. the widowed wife, widowed mother and 3 minor children of the deceased had filed a claim application under Section 166 of the Act seeking compensation on account of the death of their sole bread earner of the family in the said accident that took place on 8.2.2001. 4. After the pleadings were complete and the evidence was also recorded, the Tribunal vide the impugned award dated 26.3.2002, held that the appellants/claimants are entitled for payment of compensation to the tune of Rs. 6,53,300 with interest @ 9% per annum from the date of application till realization. 5. While calculating the compensation, the Tribunal has reached to a conclusion that the compensation payable towards loss of income was Rs. 5,93,280. In addition, the appellants/claimants were also granted an amount of Rs. 10,000 under each head towards loss of consortium and loss of estate to the widowed wife, Rs. 10,000 each to the 3 minor children and the mother i.e. Rs. 40,000 and these amounts clubbed together comes to Rs. 6,53,280 and rounding it of comes to Rs. 6,53,300 which was the total amount awarded by the Tribunal. 6. 10,000 under each head towards loss of consortium and loss of estate to the widowed wife, Rs. 10,000 each to the 3 minor children and the mother i.e. Rs. 40,000 and these amounts clubbed together comes to Rs. 6,53,280 and rounding it of comes to Rs. 6,53,300 which was the total amount awarded by the Tribunal. 6. It is this award which has been assailed by the appellants/claimants. 7. Counsel for the appellants/claimants submits that the impugned judgment deserves to be set aside/modified and the amount of compensation deserves enhancement on more than one ground. Firstly, according to the counsel for the appellants, the multiplier which has been applied by the Tribunal for the purpose of calculating the compensation is definitely not in accordance with the Schedule given in the Act. The admitted position in the case is that the age of the deceased at the time of accident was about 33 years and the multiplier applied by the Tribunal is only 8 whereas under the Act, the multiplier ought to had been at least 16. Secondly, counsel for the appellants submits that the Tribunal has also not properly taken into consideration the future increase in the income of the deceased for the purpose of calculating the compensation. According to him, the deceased at the relevant time, was a Government Teacher and was getting a salary wherein, his basic pay as per the salary certificate issued by the Department was Rs. 5,100 with 41% Dearness Allowance and the gross salary according to salary slip was Rs. 7,261. According to him, today the Dearness Allowance of a Government employee is more than 105% and as such, this itself would establish the substantial increase in the future income of the deceased. In addition, counsel for the appellants further submits that in due course of time, because of the revision of pay that has come into force, the salary of a Government Teacher has also increased substantially and it is definitely much more than the double income what the deceased would have been drawing at the time of the accident. 8. In addition, counsel for the appellants further submits that in due course of time, because of the revision of pay that has come into force, the salary of a Government Teacher has also increased substantially and it is definitely much more than the double income what the deceased would have been drawing at the time of the accident. 8. Thus, counsel for the appellants submits that the impugned award may be modified to the extent of calculating the compensation by modifying the multiplier applied by the Tribunal and also the future increase in the income of the salary of the employee may also be properly taken into account for the purpose of calculating the compensation. 9. Per contra, counsel for the respondent/Insurance Company fairly submits that so far as the multiplier is concerned, the calculation made by the Tribunal is not proper and submits that the multiplier has to be taken into consideration as has been reflected in the Schedule annexed with the Act. As far as the future income of the deceased for the purpose of calculating the compensation is concerned, he submits that the recent trend of the Supreme Court as well as various High Courts is that the future increase in the salary at best could have been only 50% and not more than that. He relies upon the judgment of the Hon'ble Supreme Court rendered in the matter of Rajesh and Others vs. Rajbir Singh and Others, (2013) 9 SCC 54 , wherein the future income of the deceased was taken at 30% more and also in the decision of Smt. Sarla Verma and Others vs. Delhi Transport Corporation and Another, 2009 (2) TAC 677 (SC) wherein the Supreme Court, in the case of (supra), has depicted the method of calculation to be taken note of while calculating the compensation. 10. Considering the rival contentions put forth by the counsel for either parties and taking note of the factual aspects in the instant case wherein the admitted position undisputedly, is that the deceased Gouri Shankar Shyam at the time of accident was an Assistant Teacher in a Government Primary School and that the gross salary, at the relevant time, as per Annexure P-1 which has been exhibited before the Tribunal was Rs. 7,261/-. The other factor which is also not disputed is that the age of the deceased at the time of accident was 33 years. 7,261/-. The other factor which is also not disputed is that the age of the deceased at the time of accident was 33 years. Another aspect which has to be borne in mind is that the total members of dependents in the family of the deceased solely depending upon the income of the deceased was 5 i.e. his widowed wife, widowed mother and 3 minor children. 11. In the light of the decisions of the Supreme Court delivered in the recent past whereby the mode of calculation for arriving at the just compensation is that the multiplier shown against the age group, as per the Schedule, would be the multiplier for the calculation and in respect of the deceased, who is aged about 30-33, the multiplier is 17 but as per the judgment of Sarla Verma 2009 (2) TAC 677 (SC) (supra), the multiplier applicable in the case of the deceased who is aged between 30-35 years shall be 16. Thus, apparently, the Tribunal has committed an error at the time of calculating the compensation by applying a wrong multiplier and the multiplier in the instant case as per the judgment of Sarla Verma should be 16 and if 16 is taken into consideration as the multiplier, the just compensation payable to the appellants/claimants would be Rs. 11,86,560. 12. Further, if we take into consideration the fact that the increase in the future income of the deceased has not been properly considered by the Tribunal while calculating the compensation, it appears that the Tribunal has, for some reason, missed this aspect at the time of calculating the compensation. If we take into consideration the recent judgment of the Supreme Court, it clearly establishes that the future increase in the income of the deceased can be 100% also. In the instant case, the admitted position is that the deceased, being a Government Teacher, was drawing a gross salary package of about Rs. 7,261/- which has subsequently been revised because of the revision of pay that has taken place in due course of time and as such the salary would have been definitely increased much more than what the deceased was getting at the time of accident. 7,261/- which has subsequently been revised because of the revision of pay that has taken place in due course of time and as such the salary would have been definitely increased much more than what the deceased was getting at the time of accident. With the passage of time, the Dearness Allowance payable to a Government Teacher also has been increased to more than 100% and thus the salary of the deceased as on date itself would had been more than double the salary what he was drawing at the time of the accident and therefore, applying the ratio laid down by Hon'ble Supreme Court, the appellants/ claimants are definitely entitled for enhanced compensation against the head of future increase of income and which, for the purpose of calculation, taking into account the periodical revision of pay as well as the increase in the Dearness Allowance can be taken as 100% increase. 13. In a recent decision of the Hon'ble Supreme Court rendered in the matter of Vimal Kanwar and Others vs. Kishore Dan and Others, (2013) 7 SCC 476 , the Lordships of the Supreme Court, while deciding the said case, have considered the aspect of the salary increase of an employee and accordingly observed that for the purpose of calculating the compensation, 100% increase in the future income of the deceased should be taken note of. For ready reference, the relevant portion of para-32 of the said judgment is reproduced as under:- "Admittedly, the date of birth of deceased Sajjan Singh being 1-2-1968; the submission that he would have continued in service up to 1-2-2026, if 58 years is the age of retirement or 1-2-2028, if 60 years is the age of retirement is accepted. He was only 28 years 7½ month old at the time of death. In normal course, he would have served the State Government minimum for about 30 years. Even if we do not take into consideration the future prospect of promotion to which the deceased was otherwise entitled and the actual pay revisions taken effect from 1-1-1996 and 1-1-2006, it cannot be denied that the pay of the deceased would have doubted if he would have continued in services of the State till the date of retirement. Even if we do not take into consideration the future prospect of promotion to which the deceased was otherwise entitled and the actual pay revisions taken effect from 1-1-1996 and 1-1-2006, it cannot be denied that the pay of the deceased would have doubted if he would have continued in services of the State till the date of retirement. Hence, this was fit case in which 100% increase in the future income of the deceased should have been allowed by the Tribunal and the High Court, which they failed to do." Thus, for the foregoing reasons, the impugned award passed by the Tribunal deserves to be and is accordingly ordered to be modified and the award passed by the Tribunal stands modified to the extent that the income which has been taken into account by the Tribunal for the purpose of calculation accepting the same to be the salary, the multiplier applied would be of 16 instead of 8 wherein, the compensation would be enhanced to Rs. 11,86,560/-. As far as the future increase of the salary for the purpose of calculating compensation is concerned, it should be 100% which ought to be applied for calculating the compensation against the future increased in salary. 14. The impugned award stands accordingly modified in as much as the multiplier in the instant case is enhanced from 8 to 16 and the calculation of compensation against future increase of salary will be 100%. The remaining part of the award as has been awarded by the Tribunal under the different heads would remain in tact including that of the interest awarded. As such, the total compensation awarded to the deceased would get enhanced to Rs. 18,39,840/- with interest of which the amount already paid by the Insurance Company i.e. Rs. 6,53,300/- with interest shall be adjusted and the balance amount shall be paid by the Insurance Company within a period of 60 days from today. 15. In the result, the instant M.A. is partly allowed and the impugned award stands modified to the above extent. Appeal Partly Allowed.