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2016 DIGILAW 1765 (GUJ)

Kalpanaben Rajiv Harane v. Rasubha Bhraji Chauhan

2016-08-19

A.S.SUPEHIA, M.R.SHAH

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JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the Motor Accident Claims Tribunal (Main), Kutchchh at Bhuj in MCAP No. 193/2001, by which, the learned Tribunal has partly allowed the claim petition and has awarded the total sum of Rs. 15,70,000/- to the original claimants towards the compensation of the death of the deceased Rajiv Gulabrav Harane, the original claimants have preferred the present First Appeal. 2. At the out set, it is required to be noted that it is not in dispute that the deceased Rajiv Gulabrav Harane died in a vehicular accident, which occurred on 22.5.2001. It is also not in dispute now that the accident occurred due to the rash and negligent driving on the part of the original opponent No. 1. That by the impugned judgment and award, the learned Tribunal has awarded total sum of Rs. 15,70,000/- under different heads, which reads as under:- Future loss of income Rs. 13,44,000/- Loss of Consortium Rs. 1,00,000/- Loss of estate and love and affection Rs. 1,00,000/- Funeral expenses Rs. 26,000/- Total amount of compensation Rs. 15,70,000/- 3. At the time of accident, the salary of the deceased was Rs. 7131/- per month. He was serving with the District Panchayat. The deceased, at the time of accident, was aged 32 years of age. Adding 50% towards the future raising income, the learned Tribunal has considered the prospective income at Rs. 10,500/- per month and after deducting 1/3 towards personal expenses of the deceased, and thereafter, applying multiplier of 16, the learned Tribunal has awarded Rs. 13,44,000/- towards future loss of income. 4. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal in so far as considering the prospective income at Rs. 10,500/- only and deducting 1/3 towards personal expenses of the deceased, while awarding future loss of income, the original claimants have preferred the present First Appeal. 5. Mr. Mehul S. Shah learned advocate appearing for the original claimants has vehemently submitted that the learned Tribunal has materially erred in awarding future loss of income considering the salary of the deceased at the time of accident. 6. It is vehemently submitted by Mr. 5. Mr. Mehul S. Shah learned advocate appearing for the original claimants has vehemently submitted that the learned Tribunal has materially erred in awarding future loss of income considering the salary of the deceased at the time of accident. 6. It is vehemently submitted by Mr. Mehul S. Shah learned advocate appearing for the original claimants that there is no rules of thumb, more particularly, in the case of Sarla Verma v. Delhi Transport Corporation, reported in AIR 2009 SC 3104 , that in all cases, while awarding loss of income the salary of the deceased at the time of accident requires to be considered. It is submitted that the claimants are entitled to the loss of income considering the future income which the deceased would have received, if he would not have died, and in that case, loss of future income is required to be awarded considering the evidence on record. He has vehemently submitted that in the present case, the claimants have produced on record the salary slip of the co-employee one Shri Uday Velani produced at Exh.61 and as per the said certificate, in the year 2013, his salary was Rs. 24,187/- per month. It is submitted that therefore, it has come on record that in the year 2013 the deceased would have received same salary if he would not have died. Therefore, it is requested to consider the appropriate amount towards prospective income. 7. In support of his above submissions, he has heavily relied upon the decision of the Division Bench of this Court in the case of United India Insurance Co. Ltd. v. Hemlataben Wd/o Dilipbhai Chimanlal Thakkar & Ors. in First Appeal No. 2449 of 2006. It is further submitted by Mr. Shah learned advocate appearing for the appellants herein-original claimants that even otherwise the learned Tribunal has materially erred in deducting 1/3 towards personal expenses of the deceased. He has submitted that looking to the number of claimants/dependents, at the time of death of the deceased, only 1/4 was required to be deducted towards the personal expenses of the deceased. It is submitted that in the present case, at the time of death of the deceased and even at the time of filing of the claim petition, there were four claimants, out of which, one died after a period of seven years i.e. in the year 2008. It is submitted that in the present case, at the time of death of the deceased and even at the time of filing of the claim petition, there were four claimants, out of which, one died after a period of seven years i.e. in the year 2008. It is submitted that therefore, only 1/4 was required to be deducted towards personal expenses of the deceased. Making above submissions, he has requested to allow the appeal to the aforesaid extend and to modify the award passed by the learned Tribunal. No other submissions have been made. 8. Mr. Ajay Mehta learned advocate has appeared on behalf of the Insurance Company. He has vehemently submitted that in the facts and circumstances of the case, the amount awarded by the learned Tribunal cannot be said to be on lower side. It is submitted that as the amount awarded by the learned Tribunal in the present case can be said to be just compensation. It is submitted that even the Insurance Company was aggrieved by the impugned judgment and award, and therefore, they preferred First Appeal before this Court and the Division Bench of this Court earlier dismissed the said First Appeal preferred by the Insurance Company. It is further submitted by Mr. Ajay Mehta learned advocate appearing on behalf of the Insurance Company that the amount awarded by the learned Tribunal under the head of future loss of economy considering the salary of the deceased at the time of accident and thereafter adding 50% towards future rise/prospective income is absolutely just and proper and in consonance with the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (supra). It is submitted that the view taken by the Hon'ble Supreme Court in the case of Sarla Verma (supra) that the future loss of income is required to be assessed and considered considering the salary of the deceased at the time of accident has been further approved by the Hon'ble Supreme Court subsequently in the case of Santosh Devi v. National Insurance Co. Ltd. reported in (2012) 6 SCC 421 . 9. Ltd. reported in (2012) 6 SCC 421 . 9. In so far as the submission on behalf of the original claimants are that at the time of death of the deceased and even at the time of filing of the claim petition, the number of claimants were four, and out of which, one claimant died after a period of seven years i.e. in the year 2008, the Learned Tribunal has materially erred in deducting 1/3 towards personal expenses of the deceased, and even instead, the learned Tribunal ought to have deducted 1/4 towards personal expenses of the deceased, is concerned, Mr. Ajay Mehta learned advocate for the Insurance Company has requested to pass appropriate order and award further just compensation deducting 1/4 towards personal expenses of the deceased till one of the claimant died in the year 2008 and for rest of the claimants, multiplier/ years and deduction may be 1/3. 10. Heard the learned advocates appearing for the respective parties at length. By impugned judgment and award, the learned Tribunal has awarded Rs. 13,44,000/- to the original claimants towards the future loss of income considering the salary of the deceased at Rs. 7000/- per month, which the deceased was getting at the time of accident, and thereafter, adding 50% rise in such income and deducting 1/3 towards personal expenses of the deceased, the learned Tribunal has awarded future loss of income. It is the case on behalf of the original claimants that as co-employee in the year 2013 was getting more salary, and therefore, even the deceased would have got the same salary which the co-employee of the deceased was getting in the year 2013 and therefore, the salary which the deceased would have received in future if he would have not died, is required to be considered. However, in light of the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra), subsequently, affirmation by the Hon'ble Supreme Court in the case of Santosh Devi v. National Insurance Co. Ltd. reported in (2012) 6 SCC 421 , the aforesaid cannot be accepted. However, in light of the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra), subsequently, affirmation by the Hon'ble Supreme Court in the case of Santosh Devi v. National Insurance Co. Ltd. reported in (2012) 6 SCC 421 , the aforesaid cannot be accepted. In the case of Sarla Verma (supra), the Hon'ble Supreme Court with respect to awarding future loss of income in case of death, after considering various earlier decisions of the Hon'ble Supreme Court, the Hon'ble Supreme Court has observed and held that generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. It is further observed and held that as a rule of thumb, an addition of 50% of the 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 and the addition should be only 30% if the age of the deceased was 40 to 50 years and there should be no addition where the age of the deceased is more than 50 years. It is observed that though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardstick being applied or different methods of calculation being adopted. The aforesaid has been further confirmed by the Hon'ble Supreme Court in the case of Santosh Devi (supra). The identical question came to be considered by the Division Bench of this Court in the case of Kunvarben Gopal Garva & Ors. (supra) and after considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra), it is held that while awarding future loss of income, normally the income at the time of accident/death is required to be considered by making addition as observed by the Hon'ble Supreme Court in the case of Sarla Verma (supra). In view of the above, the decision of the Division Bench in the case of United India Insurance Co. Ltd. v. Hemlataben Wd/o Dilipbhai Chimanlal Thakkar & Ors. in First Appeal No. 2449/2006 shall not have any assistance to the original claimants. Under the circumstances, as such, the learned Tribunal has not committed any error in awarding future loss of income considering the income of the deceased at the rate of Rs. Ltd. v. Hemlataben Wd/o Dilipbhai Chimanlal Thakkar & Ors. in First Appeal No. 2449/2006 shall not have any assistance to the original claimants. Under the circumstances, as such, the learned Tribunal has not committed any error in awarding future loss of income considering the income of the deceased at the rate of Rs. 7000/- per month, which the deceased was earning at the time of accident/death. 11. However, Mr. Shah learned advocate appearing on behalf of the original claimants is justified in making the grievance that the learned Tribunal has materially erred in deducting 1/3rd while awarding future loss of income. It is not in dispute that at the time of death of deceased, number of claimants/dependents were there. It is also not in dispute that even at the time of filing claim petition, number of claimants were four. One of the claimant died subsequently in the year 2008 i.e. after a period of approximately 7 years. Under the circumstances, to deduct 1/3rd towards personal expenses would not be justified. Therefore, if there is a deduction of 1/4th towards personal expenses of the deceased till one of the claimant died in the year 2008 i.e. for a period of 7 years, and thereafter there is a deduction of 1/3rd towards personal expenses of the deceased, we are of the opinion that the same shall meet with the ends of justice. Under the circumstances, the future loss of income would come to Rs. 14,17,500/- and to the aforesaid extent only, the impugned judgment and award passed by the learned Tribunal is required to be modified. 12. In view of the above and for the foregoing reasons, the present appeal succeeds in part. The impugned judgment and award is modified to the extent that the original claimants are entitled to Rs. 14,17,500/- towards future loss of income with interest as awarded by the learned Tribunal from the date of filing of the claim petition till realization. Now the Insurance Company shall deposit the balance enhanced amount of compensation before the concerned Tribunal, within a period of eight weeks from today, and the same shall be paid to the original claimants by way of A/c payee cheque by proper identification and verification. Appeal Partly Allowed.