JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.), Vadodara (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition No. 330/2008 by which the learned Tribunal has partly allowed the said claim petition has awarded a total sum of Rs.35,99,400/- to the original claimants and towards compensation for the death of deceased who died in a vehicular accident, the original opponent No. 3 - ICICI Lombard General Insurance Co. Ltd. - insurer of Dumper No. GJ-02-Z-308 involved in the accident has preferred the present First Appeal. 2. In a vehicular accident which occurred on 22.12.2007 between Dumper No. GJ-02-Z-308 and the Maruti Car No. GJ-01-AR-7438, deceased Sanjaykumar Hasmukhlal Shah died. Therefore, the original claimants - heirs and legal representatives of the deceased filed the aforesaid claim petition before the learned Tribunal claiming Rs.50 lakh towards compensation under different heads. 2.1. It was the case on behalf of the original claimants that on 22.12.2007, the deceased Sanjaykumar Shah was proceeding from Gandhinagar to Vatrak on Dahegam - Bayad road by driving his Maruti Car No. GJ-01-AR-7438 and that he was driving slowly and on the left side of the road. According to the claimants, when he reached near the bus-stand of village Jesana Muvada, at that time, original opponent No. 1 came from opposite direction driving his Dumper rashly and negligently at a very high speed and in attempting to overtake one vehicle, he dashed his Dumper against the Maruti car driven by the deceased and due to the impact of this accident, the deceased was pressed under the car and he sustained grievous head injuries and he succumbed to the injuries and died. It was the case on behalf of the original claimants that at the time of accident the deceased was aged 40 - 41 years. That he was a commerce graduate and after completion of his graduation, he was working as Commission Agent in the cloth market. He also visited abroad for the expansion of his business. It was the case on behalf of the original claimants that at the time of accident the deceased was running proprietary firm known as Krishna Textile and he was carrying on business of commission agent as well. He also visited abroad for the expansion of his business. It was the case on behalf of the original claimants that at the time of accident the deceased was running proprietary firm known as Krishna Textile and he was carrying on business of commission agent as well. According to the claimants the deceased was earning Rs.2.50 lakh - Rs.3 lakh net profit per annum in the year 2007; that he was earning Rs.3 lakh - Rs.4 lakh per annum at the time of accident. According to the original claimants if the deceased would not have died in the accident, he would have earned at least Rs.5 lakh to Rs.7 lakh per annum in the years to come. Therefore, the original claimants claimed Rs.50 lakh towards compensation under different heads. 2.2. The claim petition was opposed by the original opponents. The original opponent Nos. 1 and 2 - driver and owner of the offending vehicle opposed the claim petition by filing the written statement at Exh. 10. They denied all the facts and allegations made in the claim petition. They also denied that the accident had occurred due to rash and negligent driving on the part of the opponent No. 1. According to them the deceased was solely negligent for the accident. Alternatively, it was submitted that if the original opponent Nos. 1 and 2 are held liable, the original opponent No. 3 - insurance company would be liable to pay the compensation, because the offending vehicle was insured with the original opponent No. 3 at the time of accident. That the claim petition was also opposed by original opponent No. 3 - insurance company of the dumper. Written statement at Exh. 19 was filed on behalf of the original opponent No. 3 denying all the material facts and allegations in the claim petition. 2.3. That the learned Tribunal framed the issues at Exh. 22. That thereafter the original claimants as well as the original opponent No. 3 - insurance company adduced the evidence oral as well as documentary and relied upon the following oral as well as documentary evidences. Oral Evidence Sr. No. Particulars Exh. No. 1 Affidavit in lieu of Chief Examination of the claimant No. 1 viz. Nisha Sanjay Shah (wife of deceased 25 2 Affidavit in lieu of Chief Examination of the claimants' witness viz. Rajendrakumar Kantibhai Patel 29 3 Deposition of opponent No. 1 viz. Oral Evidence Sr. No. Particulars Exh. No. 1 Affidavit in lieu of Chief Examination of the claimant No. 1 viz. Nisha Sanjay Shah (wife of deceased 25 2 Affidavit in lieu of Chief Examination of the claimants' witness viz. Rajendrakumar Kantibhai Patel 29 3 Deposition of opponent No. 1 viz. Khodabhai Bhikhabhai Thakor (Driver of offending vehicle) 53 Documentary Evidence Sr. No. Particulars Exh. No. 1 Certified copy of the FIR dated 22.12.2007 lodged against the opponent No.1 regarding the present accident. 33 2 Certified copy of the panchnama of the place of occurrence 34 3 Certified copy of the Inquest Panchnama of the deceased Sanjay Shah 35 4 True copy of P.M. Note of the deceased Sanjay Shah issued by C.H.C., Dehgam 36 5 Certified copy of charge-sheet field against the opponent No.1 for commission of the accident 37 6 Original Passport of deceased Sanjay Shah 38 7 Income Tax Return filed by the deceased for the year 2004 at USA Tax Department 39 8 Original PAN Card of the deceased issued by Income Tax Department, Govt. of India 40 9 Original acknowledgement of Income Tax Return filed by the deceased for the Assessment Year 2006-07 41 10 Original Intimation letter issued by Income Tax Department for the payment of tax for the A.Y. 2006-07 42 11 Original receipt showing the tax-paid by the deceased 43 12 Original acknowledgement of Income Tax Return filed by the deceased for the A.Y. 2007-08 44 13 Original Intimation letter issued by Income Tax Department for the payment of tax for the A.Y. 2007-08 45 14 Original receipt showing the tax paid by the deceased 46 15 Original acknowledgement of Income Tax Return filed by the deceased for the A.Y.2008-09 47 16 True Copy of Degree Certificate of B.Com. obtained by deceased from Gujarat University 48 17 Statement of Account of ICICI Bank Ltd. in the name of deceased for the period from 01.09.2005 to 28.02.2006 49 18 Statement of Account of Indian Bank in the name of deceased for the period from 01.04.2005 to 11.02.2013 50 19 Statement of Account of the Kalupur Commercial Co-op. Bank Ltd. in the name of deceased for the period from 01.01.2006 to 04.01.2010 51 2.4. That on appreciation of evidence the learned Tribunal has held the original opponent No. 1 - driver of the Dumper sole negligent for the accident. Bank Ltd. in the name of deceased for the period from 01.01.2006 to 04.01.2010 51 2.4. That on appreciation of evidence the learned Tribunal has held the original opponent No. 1 - driver of the Dumper sole negligent for the accident. That on appreciation of evidence and considering the income tax returns produced on record the learned Tribunal assessed the income of the deceased at Rs.2,56,000/- per annum. Adding 30% towards future rise in income and after deducting 1/3rd towards the total expenses of the deceased and thereafter applying the multiplier of 14, the learned Tribunal has awarded Rs.34,94,400/- towards future loss of income and thereby has awarded a total sum of Rs.35,99,400/- under different heads as under:- Loss of dependency Rs.34,94,000/- Loss of consortium Rs.40,000/- Loss of love and affection to children Rs.30,000/- Loss of love and affection to parents Rs.25,000/- Funeral Expenses Rs.10,000/- Total Compensation Rs.35,99,400/- 2.5. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal in holding the original opponent No. 3 - driver of the Dumper sole negligent for the accident and also on quantum the original opponent No. 3 - insurer of the Dumper - ICICI Lombard General Insurance Co. Ltd. has preferred the present First Appeal. 3. Shri Sunil Parikh, learned advocate appearing on behalf of the appellant herein - insurance company has vehemently submitted that the learned Tribunal has materially erred in holding the original opponent No. 1 - driver of the Dumper involved in the accident sole negligent for the accident. It is vehemently submitted by Shri Parikh, learned advocate appearing on behalf of the appellant that as there was a head on collision between the two vehicles, the learned Tribunal ought not to have held the opponent No. 1 - driver of the Dumper sole negligent for the accident. It is submitted that as there was a head on collision between two vehicles and the manner in which the accident has taken place, the learned Tribunal ought to have either held the driver of the maruti car - deceased sole negligent for the accident and/or contributory negligent to a larger extent. 3.1. It is submitted that as there was a head on collision between two vehicles and the manner in which the accident has taken place, the learned Tribunal ought to have either held the driver of the maruti car - deceased sole negligent for the accident and/or contributory negligent to a larger extent. 3.1. It is further submitted by Shri Parikh, learned advocate appearing on behalf of the appellant that as the deceased was a businessman, the learned Tribunal has materially erred in awarding future loss of income adding 30% rise in future while considering the prospective income. Relying upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 , it is vehemently by Shri Parikh, learned advocate appearing on behalf of the appellant that as the deceased was a businessman, the learned Tribunal has materially erred in adding 30% towards future rise in income while awarding future loss of income. Making above submissions and relying upon above decision, it is requested to admit/allow the present First Appeal. 4. Present appeal is vehemently opposed by Shri S.A. Chhabaria, learned advocate appearing on behalf of the original claimants, who is on caveat. It is submitted that in the facts and circumstances of the case the learned Tribunal has not committed any error in holding the original opponent No. 1 - driver of the Dumper sole negligent for the accident. 4.1. It is vehemently submitted by Shri Chhabaria, learned advocate appearing on behalf of the original claimants that the finding recorded by the learned Tribunal while holding the original opponent No. 1 - driver of the Dumper sole negligent for the accident is on appreciation of evidence on record more particularly the overall evidence as well as panchnama of the place of accident. 4.2. It is further submitted that it is not true that there was a head on collision between two vehicles as contended and submitted on behalf of the appellant. It is submitted that the maruti car did not dash with the Dumper in the middle. It is submitted that looking to the panchnama of the place of accident and the oral evidence the right hand side driver's portion of the Dumper dashed with the maruti car on its right driver side. It is submitted that the maruti car did not dash with the Dumper in the middle. It is submitted that looking to the panchnama of the place of accident and the oral evidence the right hand side driver's portion of the Dumper dashed with the maruti car on its right driver side. It is submitted that as per the panchnama of the place of accident, right hand side front portion of the Dumper and the headlight on the right side was damaged. It is submitted that therefore it cannot be said that there was head on collision between the two vehicles as contended on behalf of the appellant. It is submitted that therefore the learned Tribunal has rightly held the original opponent No. 1 - driver of the Dumper sole negligent for the accident. 4.3. Now, so far as the quantum and the compensation awarded by the learned Tribunal more particularly adding 30% towards future rise in income is concerned, considering the income tax returns which are on record, which are for the period prior to the date of accident, there is a periodical rise in income and therefore, the learned Tribunal is justified in adding 30% towards future rise in income while awarding future loss of income. Learned advocate appearing on behalf of the original claimants has heavily relied upon the recent decision of this Court in the case of New India Assurance Co. Ltd. v. Manishaben Sanjaybhai Tribhovandas Modi & Ors. rendered in First Appeal No. 2366/2014. It is submitted that in the aforesaid decision the Division Bench had an occasion to consider the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) as well as other decisions of the Hon'ble Supreme Court on the point and thereafter it is held that in an appropriate case and if on evidence it is found that there was a periodical rise in income of a businessman, the future rise can be considered and there can be addition towards future rise in income. It is submitted that therefore no error has been committed by the learned Tribunal in adding 30% towards future rise in income while awarding future rise in income. Making above submissions, it is requested to dismiss the present First Appeal. 5. Heard learned advocates appearing for respective parties at length. We have gone through the impugned judgment and award passed by the learned Tribunal. Making above submissions, it is requested to dismiss the present First Appeal. 5. Heard learned advocates appearing for respective parties at length. We have gone through the impugned judgment and award passed by the learned Tribunal. We have re-appreciated the entire evidence on record produced by the learned advocate appearing on behalf of the appellant, produced for perusal of the Court. 5.1. As observed hereinabove, the impugned judgment and award passed by the learned Tribunal is assailed on the ground that the learned Tribunal has committed grave error in holding the original opponent No. 1 - driver of the Dumper involved in the accident sole negligent for the accident and also on the ground that while awarding future rise in income the learned Tribunal has materially erred in adding 30% towards future rise in income. 5.2. It is the case on behalf of the appellant that as there was head on collision the learned Tribunal has materially erred in holding the driver of the Dumper - original opponent No. 1 sole negligent for the accident. However, on re-appreciation of entire evidence on record more particularly considering the panchnama of the place of accident and the oral evidence, it cannot be said that there was head on collision between the two vehicles. The front right portion of the Dumper - driver side was dashed with the right hand side portion of the maruti car. The aforesaid is established from the panchnama of the place of accident. Therefore, it cannot be said that there was head on collision between two vehicles as submitted by the learned advocate appearing on behalf of the appellant. In the facts and circumstances of the case and the manner in which the accident has taken place, which is evident from the panchnama of the place of accident, when on appreciation of evidence the learned Tribunal has held the original opponent No. 1 - driver sole negligent for the accident, the same is not required to be interfered with by this Court in exercise of the appellate jurisdiction. Under the circumstances, we confirm the finding recorded by the learned Tribunal holding the original opponent No. 1 - driver of the Dumper sole negligent for the accident. 5.3. Under the circumstances, we confirm the finding recorded by the learned Tribunal holding the original opponent No. 1 - driver of the Dumper sole negligent for the accident. 5.3. Now, so far as submission on behalf of the appellant that while holding future loss of income, the learned Tribunal has materially erred in adding 30% towards future rise in income and the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) and the submission on behalf of the appellant that as the deceased was a businessman there shall not be any addition towards future rise in income is concerned, it is required to be noted that looking to the evidence on record more particularly income tax returns produced on record of the years 2006-07 and 2007-08, which were for the period prior to the date of accident, there seems to be a periodical rise in the income of the deceased. In the assessment year 2006-07, his taxable income was Rs.1,29,960/-. In the assessment year 2007-08, his taxable income was Rs.3,08,055/- and in the assessment year 2008-09 the income of the deceased was Rs.3,28,458/-. The accident occurred on 22.12.2007. Therefore, there was a rise in the income of the deceased prior to the date of accident, which is evident from the above income tax returns. Identical question came to be considered by this Court in Manishaben Sanjaybhai Tribhovandas Modi (Supra), after considering various decisions of the Hon'ble Supreme Court on the point including the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) and the subsequent decision of the Hon'ble Supreme Court, in paras 5 to 9, it is held as under. "5.0. Heard the learned advocates for the respective parties at length. The short question which is posed for the consideration of this Court is whether while awarding future economic loss and while determining the loss of dependency in case the deceased is self employed/businessmen, whether actual income at the time of death without any addition to income for future prospects is required to be considered or any addition is required to be made like in the case of a deceased who had a permanent job? 5.1. While considering the aforesaid question, few decisions of the Hon'ble Supreme Court as well as this Court are required to be referred to and considered. 5.1. While considering the aforesaid question, few decisions of the Hon'ble Supreme Court as well as this Court are required to be referred to and considered. In the case of Sarla Verma (supra) in para 24, the Hon'ble Supreme Court has observed and held as under: 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 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 14 increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations 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 there from should be made only in rare and exceptional cases involving special circumstances 5.2. In the case of Syed Basheer Ahamed and Others (supra), which was delivered in the year 2009, in para 15, the Hon'ble Supreme has observed and held as under: In our view, though the entries in the current account (Ex. P-38) of the deceased and his transactions with his client, namely, Vasu Agarbathi (Ex. P-23) may not per se be cogent evidence to determine the yearly or monthly income of the deceased from the business's he was carrying on, yet we feel that these are some indicators in support of the appellants' plea that the business income of the deceased in the succeeding years could be more than what was declared for the year ended 31st March, 1998. But it is again in the realm of speculation, particularly when, unlike income from salaries, earnings in a business may increase with the buoyancy in business and at the same time may diminish with a recession in trade. 5.3. However, thereafter in the case of Shakti Devi (supra) in para 12, the Hon'ble Supreme Court after considering the circumstances of the case, as the deceased was to get employment in the forest department after retirement of his father, the Hon'ble Supreme Court observed that actual income at the time of deceased's death needs to be revised and taking into consideration the special circumstances of the case, the Hon'ble Supreme Court fixed the monthly income of the deceased at Rs.2,000/- (against his actual income at Rs.1000/- per month from the business). In para 12, the Hon'ble Supreme Court has observed and held as under: So far as the present case is concerned, at the time of accident, the deceased was 22-year old and not married. He was running a general store from his house and earning about Rs.1000/- per month from the business. In Sarla Verma 3, this Court stated that where the deceased was self-employed, the court shall usually take only the actual income at the time of death; a departure from there should be made only in rare and exceptional cases involving special circumstances. Does the present case involve special circumstances? In our view, it does. The evidence has come that the deceased was to get employment in the forest department after the retirement of his father. Obviously the evidence is based on the government policy. The deceased, thus, had a reasonable expectation of the government employment in near future. In the circumstances, the actual income at the time of deceased's death needs to be revised and taking into consideration the special circumstances of the case, in our view, the monthly income of the deceased deserves to be fixed at Rs.2000/-. As regards the personal expenses, since the deceased was not married, we are satisfied that the principle stated in Sarla Verma 3 that 50% should be treated as the personal and living expenses of the bachelor may be applied. Seen thus, the annual loss of dependency would come to Rs.12,000/-. Insofar as multiplier is concerned, the Tribunal applied the multiplier of 8. Seen thus, the annual loss of dependency would come to Rs.12,000/-. Insofar as multiplier is concerned, the Tribunal applied the multiplier of 8. Learned counsel for the appellant argued that the multiplier of 18 should have been applied keeping in view the age of the deceased. The argument is devoid of any substance. In a case where the age of the claimant is higher than the age of the deceased, the age of claimant and not the age of the deceased has to be taken into account for the capitalization of the lost dependency. It is so because the choice of multiplier is determined by the age of the deceased or that of the claimant, whichever is higher. The exact age of the claimant has not come on record. As per the evidence of AW1 (Pankaj Kumar Sinha), on the date of his deposition, the claimant's age was about 63 years. The date of deposition of AW-1 is not available. The accident occurred in 1991 and the date of decision of the Tribunal is June 6, 2000. Ordinarily, the Tribunal would not have taken much time after the evidence was complete. We may assume that the statement of AW-1 was recorded somewhere in 1998 or 1999. If that be so, the age of the claimant on the date of the accident would be about 54-55 years. As per the table prepared in Sarla Verma 3, the multiplier of 11 would, therefore, be applicable. By multiplying the annual loss of dependency (Rs.12000/-) with the multiplier of 11, the claimant becomes entitled to the compensation in the sum of Rs.1,32,000/-. The compensation determined by the Tribunal at Rs.60,000/- and confirmed by the High Court in the appeal is manifestly erroneous and is enhanced to Rs.1,32,000/-. 5.4. That thereafter, in the case of Santosh Devi (supra) while considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra), in para 14 to 18, the Hon'ble Supreme Court has observed and held as under: 14. 5.4. That thereafter, in the case of Santosh Devi (supra) while considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra), in para 14 to 18, the Hon'ble Supreme Court has observed and held as under: 14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Vermas case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave (sic) to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. 15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self- employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. 16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. 17. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. 17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. 18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Vermas judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. 5.5. That thereafter, in the case of Reshma Kumari and Ors (supra) which is a three Judge Bench judgment, while approving the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra), the Hon'ble Supreme Court in para 35 and 36 has observed and held as under: 35. 5.5. That thereafter, in the case of Reshma Kumari and Ors (supra) which is a three Judge Bench judgment, while approving the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra), the Hon'ble Supreme Court in para 35 and 36 has observed and held as under: 35. With regard to the addition to income for future prospects, in Sarla Verma, this Court has noted earlier decisions in Susamma Thomas, Sarla Dixit and Abati Bezbaruah and in paragraph 24 of the Report held as under: 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 there from should be made only in rare and exceptional cases involving special circumstances. 36. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases. 5.6. At this stage, it is required to be noted that in the case of Reshma Kumari and Ors (supra) two Judge Bench of the Hon'ble Supreme Court referred the matter to the Larger Bench on two common questions namely (1) Whether multiplier specified in the Second Schedule appended to the Motor Vehicles Act, 1988 should be scrupulously applied in all cases and (2) Whether the determination of the multiplicand, the 1988 Act provides for any criterion, as regards dimension and future prospects. 5.7. However, subsequently and thereafter in the case of Rajesh and others (supra) after following/considering the decision of the Hon'ble Supreme Court in the case of Santosh Devi (supra), the Hon'ble Supreme Court has observed and held that in the case of self employed or on fixed wages, in case deceased victim was below 40 years, there must be the addition of 50% to the actual income of the deceased while computing future prospects and it is further observed and held that actual income should the income after paying the tax if any. However, at this stage, it is required to be noted that in the case before the Hon'ble Supreme Court in the case of Rajesh and others (supra) earlier three Judge Bench decision of the Hon'ble Supreme Court in the case of Reshma Kumari and Others (supra) was neither cited and/or brought to the notice of the Hon'ble Supreme Court and therefore, the Hon'ble Supreme Court had no occasion to consider three Judge Bench decision of the Hon'ble Supreme Court in the case of Reshma Kumari and Others (supra). 5.8. 5.8. Recently in the case of Sanjay Verma (Supra) after taking note of all the decisions of the Hon'ble Supreme Court in the case of Sarla Verma (supra), Santosh Devi (supra), Rajesh and others (supra), Reshma Kumari and others (supra) and Shakti Devi (supra) and taking into account the age of the claimant (25 years) and the fact that he had steady income as evidenced by the income tax returns, the Hon'ble Supreme Court made addition of 50% to the income that the claimant was earning at the time of accident. It is required to be noted that in the said decision, the Hon'ble Supreme Court while taking note of the decision of the Hon'ble Supreme Court in the case of Reshma Kumari (supra) and Sarla Verma (supra) and after taking note of law laid down by the Hon'ble Supreme Court, in the said decision it is observed that in respect of a person who was on a fixed salary without provision for annual increments or who was self employed, the actual income at the time of death should be taken into account for determining the loss of income, unless there are extraordinary or exceptional circumstances. That thereafter, the Hon'ble Supreme Court has observed that though the expression exceptional and extraordinary circumstance is not capable of any precise definition, in Shakti Devi v. New India Insurance Company Limited and Another, there is practical application of the aforesaid principle. However, at this stage, it is required to be noted that in the case before the Hon'ble Supreme Court in the case of Sanjay Verma (supra) it was a case of accidental injury and it was not a case of fatal accident. 5.9. In the case of Sheelaben W/o. Jayeshbhai Ramchandra Dave (supra) the Division Bench of this Court had an occasion to consider both the decisions of the Apex Court in the case of Sarla Verma (supra) as well as Santosh Devi (supra), and thereafter the Division Bench has observed and held that the case of a businessmen stands totally on different footing as there would not be automatic rise in the profit of the businessmen with the rise in the cost of living. In para 12, the Division Bench has observed and held as under: Having considered the facts and circumstances mentioned above and the authorities cited before us, we are of the opinion that, as in the case on hand, the deceased was not a self-employed person or a person drawing fixed wages etc., but he was a businessman, the judicial note of various aspects like rise in salary with the rise in cost of living etc., taken by the Apex Court in the case of Santosh Devi (supra) for awarding of 30% prospective income in absence of the evidence cannot be applied in the facts and circumstances of the case. The case of a businessman stands totally on different footing as there would not be automatic rise in the profit of the businessman with the rise in the cost of living. A businessman would be required to put strenuous efforts before his profit rise, and such strenuous efforts can be inferred only if the evidence to the effect that the businessman who died in the accident had such business skill as would have allowed him to prosper in future. Therefore, on the facts of the case, we do not find any error in the judgment of the Tribunal on this count. 5.10. At this stage, it is required to be noted that in the aforesaid decision, the Division Bench has observed that in the case of Sarla Verma (supra) before the Hon'ble Supreme it was a case of the self employed or a person who is paid fixed wages and nowhere the Hon'ble Supreme Court dealt with the issue of prospective income of the businessmen. 5.11. In the case of Gujarat State Road Transport Corporation v. Thacker Narottam Kalyanji and others reported in 2001 (1) ACJ 391 in para 20 while dealing with similar issue, the Division Bench of this Court has observed and held as under: No hard and fast rule can be uniformly applied to all the cases of compensation arising out of the death of the deceased. The cases in which the men are engaged in service or professional skill are far easier to be dealt with because total average earning can be determined and also the dependency benefits. In the case of business flourishing and going on substantially if not wholly because of the business skill of the deceased do not present any difficulty. The cases in which the men are engaged in service or professional skill are far easier to be dealt with because total average earning can be determined and also the dependency benefits. In the case of business flourishing and going on substantially if not wholly because of the business skill of the deceased do not present any difficulty. In a case like this whatever is earned by the deceased can be legitimately thought to be the outcome of the acumen of the businessman concerned but where the business was not commenced and it was proposed to be started it cannot be said in what manner the skill of the deceased was going to play part in successful running of such business. In ordinary business many factors contribute to make the business a successful going concern, for example capital, goodwill earned in the past, place of business and also the past factors of the business had to be taken into account. Business calibre of the deceased and proper supervision and control by the entrepreneur are very important factors in determining the income of the deceased. Consequently, those who put forth claims arising out of the death of such businessman should produce reasonable evidence on the record to show the nature of business, its dimensions, its potentialities and latent dangers and also the contribution of the personal skill of the businessman in mending and manning the business. 5.12. In the case of Anujdevi W/o. Surendrasinh Bhati and others rendered in First Appeal No. 5201 of 2007 with First Appeal No. 1901 of 2007 after following decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra) and in the case of death of businessmen, it is held by the Division of this Court that nothing is to be added if the deceased is businessmen. 6.0. Now, some of the decisions of this Court, upon which, much reliance has been placed by the learned advocate for the original claimants are required to be referred to and considered. In the case of Mohinaben Mahendrabhai Shah and Ors in First Appeal No. 2808 of 1993 in the case of businessmen having various types of business and after considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) has added 30% of the actual income at the time of death while considering the future prospects. In the case of Mohinaben Mahendrabhai Shah and Ors in First Appeal No. 2808 of 1993 in the case of businessmen having various types of business and after considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) has added 30% of the actual income at the time of death while considering the future prospects. However, it is required to be noted that in the said decision the Division Bench has not specifically considered the observations made by the Hon'ble Supreme Court in the case of Sarla Verma (supra) made in para 24. 6.1. That thereafter, in the case of Oriental Insurance Company v. Manjulaben Wd/o Jayantilal Rughnathji Brahmbhatt and 5 others rendered in First Appeal No. 1681 of 2005 having noted that deceased was in the business of tiles and marble and therefore, had future prospects in such type of business, the Division Bench had added 50% of the actual income at the time of accident/death while considering the prospective income. 6.2. In the case of Oriental Insurance Company Limited v. Pasmina Wd/o Pravinsinh Parmar and others rendered in First Appeal No. 3141 of 2006 with Cross Objection No. 159 of 2009 in case where deceased was Civil Engineer and active partner in the partnership firm doing the business of construction and in the case of deceased aged only 29 years, added 50% towards prospective income. However, it is required to be noted that in the said decision there is no detail discussion on the issue and even subsequent decisions referred to herein above were not brought to the notice of this Court and therefore, the Division Bench had no occasion to deal with and consider the aforesaid issue in detail. On the similar ground, the decision of the Division Bench of this Court in the case of Deviben Rajabhai Odedara v. Driver Mukundsingh Nandsingh Rajavat rendered in First Appeal No. 1923 of 2006 shall not be of any assistance to the original claimants. 6.3. On the similar ground, the decision of the Division Bench of this Court in the case of Deviben Rajabhai Odedara v. Driver Mukundsingh Nandsingh Rajavat rendered in First Appeal No. 1923 of 2006 shall not be of any assistance to the original claimants. 6.3. In the case of National Insurance Company Limited v. Urmilaben Ashokbhai Patel rendered in First Appeal No. 2163 of 2014 deceased who was having the dining hall in the case of situated very close to one of the biggest hospital in the State and having observed that it would be obviously frequented by large number of patients and relatives every day year around and having found that the business thus had an excellent potential, the Division Bench has confirmed the decision of the Tribunal granting 30% increase for the future rise in income. 7.0. Having heard the learned advocates for the respective parties on the issue and and considering the aforesaid decisions of the Hon'ble Supreme Court as well as this Court and having differed views, we are of the opinion that even if the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra) (Para 24) is considered, it appears that the observations made by the Hon'ble Supreme Court in the said decision are with respect to deceased who is self employed or who is paid fixed wages. Even in the case of death of self employed or a person who was on fixed salary without provision for annual increments etc., it is observed that the Courts will usually take only the actual income at the time of death and a departure there from should be made only in rare and exceptional cases involving special circumstances. Thus, considering the above, we are of the opinion that it cannot be said that in no circumstances, there shall be addition of future rise in income while considering the prospective income. However, it is required to be noted that the said observations are made with respect to deceased self employed or on a fixed salary without provision for annual increments etc. Even, as observed by the Hon'ble Supreme Court in the case of Santosh Devi (supra), the observations made by the Apex Court in the case of Sarla Verma (supra) are with respect to deceased, a self employed or was on a fixed salary and not with respect to deceased who was a businessmen. Even, as observed by the Hon'ble Supreme Court in the case of Santosh Devi (supra), the observations made by the Apex Court in the case of Sarla Verma (supra) are with respect to deceased, a self employed or was on a fixed salary and not with respect to deceased who was a businessmen. It is required to be noted that in the present case the question is with respect to death of a businessmen. 8. Now, so far as decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) and the observations made by the Hon'ble Supreme Court in the said decision with respect to future prospects/addition to be made with respect to prospective income is concerned, it is required to be noted that even in the said decision there is no absolute proposition of law laid down by the Hon'ble Supreme Court that in no case there shall be any addition while considering the prospective income and that where the deceased was self employed or was on a fixed salary, only the actual income at the time of death is to be considered while awarding future economic loss. It is true that in para 24, the Hon'ble Supreme Court has observed that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts would usually take only the actual income at the time of death. However, it is further observed that departure from this rule should be made only in rare and exceptional cases involving special circumstances. Thus, even as observed by the Hon'ble Supreme Court, it is permissible to take income more than actual income at the time of death while considering the future economic loss, however the same shall be in rare and in exceptional cases involving special circumstances. Thus, if on leading evidences, a case is made out that there was periodical rise in income regularly, while awarding future economic loss even in the case of death of businessman and/or self employed while awarding future economic loss some rise in income is permissible. At this stage, it is required to be noted that in the case before the Hon'ble Supreme Court in the case of Sarla Verma (Supra) it was not a case of death of businessman. 9. At this stage, it is required to be noted that in the case before the Hon'ble Supreme Court in the case of Sarla Verma (Supra) it was not a case of death of businessman. 9. Considering the above, we are of the opinion that no hard and fast rule can be uniformly applied to all the cases of compensation arising out of the death of the deceased businessmen. In the case of business flourishing and going on substantially if not wholly because of the business skill of the deceased, whatever is earned by the deceased can be legitimately thought to be the outcome of the acumen of the businessmen concerned. In ordinary business many factors contribute to make the business a successful going concern. For example capital, goodwill earned in the past, place of business and also the past factors of the business had to be taken into account. As observed in the case of Thacker Narottam Kalyanji and others (supra) by the Division Bench of this Court, Business caliber of the deceased and proper supervision and control by the entrepreneur are very important factors in determining the income of the deceased and consequently, those who put forth claims arising out of the death of such businessmen should produce reasonable evidence on the record to show the nature of business; its dimensions; its potentialities and latent dangers and also the contribution of the personal skill of the businessmen in mending and managing the business. Meaning thereby, if on the basis of the evidence on record, nature of business; its dimensions; its potentialities, more and constant rise in the income in last few years which can be curled out from the income tax returns there can be addition towards rise while considering the prospective income and which awarded future loss of income. However, as observed above, for that there must be a cogent and reasonable evidence on record to justify the claim of addition of future rise in the income while determining the prospective income and awarded future loss of income." 5.4. Considering the aforesaid decisions and the facts and circumstances and the evidence on record, it cannot be said that the learned Tribunal has committed any error in adding 30% towards future rise in income while awarding future loss of income. 6. Considering the aforesaid decisions and the facts and circumstances and the evidence on record, it cannot be said that the learned Tribunal has committed any error in adding 30% towards future rise in income while awarding future loss of income. 6. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and award passed by the learned Tribunal. Under the circumstances, present First Appeal deserves to be dismissed and is, accordingly, dismissed. CIVIL APPLICATION NO. 5372/2016 In view of dismissal of main First Appeal, Civil Application also stands dismissed.