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2016 DIGILAW 1553 (RAJ)

Sunita Devi W/o Late Shri Vishwapati Sharma v. Narayan Das S/o Shri Moti Lal

2016-10-27

VIJAY KUMAR VYAS

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JUDGMENT : 1. The appeal has arisen out of award dated 02.01.2007 passed by MACT-cum-ADJ (Fast Track) Bahror (Alwar) in MAC No.328/2016 (86/2006), whereby an award of Rs.11,66,730/- was passed in favour of appellants and against the respondents jointly and severely. The appeal has been preferred for enhancement of the award. 2. In brief facts of the case are that on 15.12.2005 at 5.30 p.m. Vishwapati Sharma, after doing his duty in Punjab National Bank, Branch Harsora was returning to his village on a motorcycle, a tata sumo No.RJ02/U0165, driven rashly and negligently hit the motorcycle as a result Vishwapati Sharma died on the spot. Legal heirs of the deceased preferred this claim petition for an award of Rs.84,79,000/-. After hearing the matter, learned Tribunal vide judgment passed the impugned award as stated hereinabove. 3. Learned counsel for the appellants submits that when computing loss of income, learned Tribunal has not considered the prospects of future increase in income. In view of future increment in the income the salary per month of the deceased should have been assessed double of the last salary drawn by him. In support, he placed reliance on 1. Smt. Neeta W/o Kallappa Kadolkar and Ors. etc. Vs. The Divisional Manager MSRTC, Kolhapur, 2015 (1) T.A.C. 340 (S.C.). 2. Vimal Kanwar and Ors. vs. Kishore Dan and Ors., MACD 2013 (SC) 169. 3. K.R. Madhusudan (Sri.) and Ors. Vs. The Administrative Officer and Anr., MACD 2011 (SC) 59. 4. Learned counsel submits that looking to the age of the deceased, the multiplier applied by the learned Tribunal is on lower side. 5. Learned counsel further submits that looking to the meagre income it should have been presumed that only 1/3rd of the salary would be spent as self expenses. 6. Learned Tribunal has not awarded anything in various other heads as claimed by the appellant in their claim application which ought to have been at least Rs. one lakh. 7. Per contra, respondents opposed the appeal and submitted that there is no ground for enhancement of claim awarded by learned Tribunal. 8. I have given thoughtful consideration to the rival submissions and went through the material available on record. one lakh. 7. Per contra, respondents opposed the appeal and submitted that there is no ground for enhancement of claim awarded by learned Tribunal. 8. I have given thoughtful consideration to the rival submissions and went through the material available on record. The Apex Court in K.R. Madhusudan's case (supra) has observed; “The present case stands on different factual basis where there is clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to get a rise in income in the future, a fact which was corroborated by evidence on record. Thus, we are of the view that the present case comes within the 'exceptional circumstances' and not within the purview of rule of thumb laid down by the Sarla Verma (supra) judgment. Hence, even though the deceased was above 50 years of age, he shall be entitled to increase in income due to future prospects.” 9. In the instant matter, a certificate of income (Ex.14) is available on record. As per this certificate, the deceased was working as head cashier in Punjab National Bank and at the time of death, he was drawing salary basic 11120 + allowances = 14778.56. His date of birth was 09.07.1954 and date of retirement was 31.7.2014. It has also shown the basic pay upto year of superannuation, by adding admissible annual increment from year 2006 to year 2014. As per this certificate in the year 2014, at the time of retirement, his basic pay would have been Rs. 14,950/-, whereas at the time of death his basic salary was Rs.11,120/-. Thus the present case comes within the exceptional circumstances and not within the purview of rule of thumb laid down by Sarla Verma's case. Hence even though the deceased was above 50 years of age, he shall be entitled to increased income as future prospects. While taking mean of the basic pay at the time of death and at the time of superannuation, it comes nearly about 20 per cent increase in the salary. Learned Tribunal, while computing loss of income, added only dearness allowance in basis pay of the deceased that is 11,120 + 2001 = 13,121/-. This computation of monthly salary is not under challenge before me. Therefore, considering all the relevant aspects, it would be appropriate to add 20 per cent of Rs. 13,121/-, as loss future increase in the income. Learned Tribunal, while computing loss of income, added only dearness allowance in basis pay of the deceased that is 11,120 + 2001 = 13,121/-. This computation of monthly salary is not under challenge before me. Therefore, considering all the relevant aspects, it would be appropriate to add 20 per cent of Rs. 13,121/-, as loss future increase in the income. Thus, after adding 20 per cent, the monthly salary becomes 13121 + (13121 X 20/100) = 15,745.2. 10. So far multiplier is concerned, learned Tribunal has applied multiplier of 11 which is in accordance with the 2nd Schedule appended to the M.V. Act and in doing so learned Tribunal has committed no error. Thus loss of income along with future prospects comes our 15,745.2 X 12 X 11 = 2078366.4. 11. In Sarla Verma's case (supra), it has been held that where deceased was married, the deduction towards personal and living expenses of the deceased, should be 1/3rd where the number of dependent family members is 2-3, 1/4th where the number of dependents family members is 4-5, and 1/5th where the number of dependent family members exceed six (6). 13. In the instant matter learned Tribunal has deducted 1/3rd of salary as personal and living expenses. Looking to the number of dependents i.e. 4, appropriate deduction towards personal and living expenses should have been 1/4th. On doing so, 2078366.4 – (2078366.4 X ¼) = 1558774.8 = 1558775 is found to be appropriate loss of dependents. 14. Learned Tribunal has held the claimants entitled for interest on admissible compensation at the rate of six per cent per annum. In the facts and circumstances of the case, I do not find any reason to interfere in this finding. 15. In the result, the compensation awarded in different heads by the Tribunal and enhanced by this court are as under : Sr. No. Head As per Tribunal Amount as per this Court 1 Loss of Income, including Future Income & Prospects 11,54,736/- 15,58,775/- 2 Loss of Love, Care and Guidance to Children 10,000/- 10,000/- 3 Funeral Expenses 2000/- 2000/- Total 11,66,736/- 15,70,775/- 16. Thus, the total compensation payable to the appellants in enhanced by Rs.4,04,039/- as detailed out above. The appellants will be entitled to interest on the enhanced amount of compensation @ 6% p.a. from the date of filing the claim application, till the date of realisation. 17. Thus, the total compensation payable to the appellants in enhanced by Rs.4,04,039/- as detailed out above. The appellants will be entitled to interest on the enhanced amount of compensation @ 6% p.a. from the date of filing the claim application, till the date of realisation. 17. Accordingly, the appeal is allowed in the above said terms. The enhanced compensation awarded shall be apportioned amongst the appellants in the ratio of 61% to the widow and 13% each to the sons. Half of the compensation payable to each claimant shall be invested in Fixed Term Deposits of Nationalized Bank. The respondents shall either pay the amount of compensation by way of Demand Draft/s in favour of the appellants or deposit the same with interest as awarded, even on the enhanced compensation, before the Tribunal after deducting the amount already paid to the appellants within six weeks from the date of receipt of certified copy of this judgment.