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2023 DIGILAW 358 (GUJ)

PRAKASHBHAI LAXMANBHAI MOR v. JAGDISHBHAI ARJANBHAI GONDALIYA

2023-02-22

GITA GOPI

body2023
JUDGMENT : GITA GOPI, J. 1. Being aggrieved and feeling dissatisfied with the judgment and award dated 14.10.2016 passed by the MACT (Aux), Gondal in MACP No. 3 of 2009, the appellants – claimants have prayed for enhancement of the award amount on the ground that the deceased was aged about 18 years and at the time of his death, he was employed at Mahindra Gears and Transmission Pvt. Ltd. and was drawing salary of Rs.3,652/- per month. Considering the evidence of the Company, the ground has been raised that in future he would become entitle to salary of Rs.14,000/- per month and the prayer is made for 100% rise instead of 50% granted by the Tribunal. Mr. Sheth has relied upon the decisions in the cases of Sarla Verma vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , Ramilaben Chinubhai Parmar and Others vs. National Insurance Company and Others, (2014) 15 SCC 722 and Sureshchandra Bagmal Doshi and Another vs. New India Assurance Company Limited and Others, (2018) 15 SCC 649 to contend that on the death at an early age with the prospect of promotion and potential earning capacity of the deceased, the Tribunal should have granted higher level than the standard percentage as laid down in the subsequent judgments and thus, Mr. Sheth submits that in consonance with the evidence of Rohitbhai Chauhan who was examined by the claimants, had very consistently stated that new employee appointed in place of the deceased was getting salary of Rs.14,000/- and on that basis, Mr. Sheth submits that 100% rise in income ought to have been granted in the present matter. 2. Referring to Paragraphs 12 to 15 of the decision in the case of Sarla Verma (supra), Mr. Sheth submits that if the salary of the deceased was considered when the family of the deceased is large and dependents of the deceased are the younger siblings and aged parents and therefore, Mr. Sheth submits that instead of one-half deduction as unmarried person, the Court ought to have deducted one-third as personal expenses and the contribution of the deceased to the family should have been considered as two-third. 3. Countering the arguments, Mr. Maulik J. Shelat has referred to the observations made by the Division Bench in First Appeal no. Sheth submits that instead of one-half deduction as unmarried person, the Court ought to have deducted one-third as personal expenses and the contribution of the deceased to the family should have been considered as two-third. 3. Countering the arguments, Mr. Maulik J. Shelat has referred to the observations made by the Division Bench in First Appeal no. 2372 of 2014 dated 17.7.2018 to submit that the Division Bench has made elaborate observation to the submissions so made in that referred case of the deceased young man having exceptional academic qualification and has urged that he has the potential of higher earning. Mr. Sheth submits that while disallowing the contention raised, Division Bench has followed the judgment in the case of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680 to consider the scope and future rise in income. Mr. Shelat has also placed reliance on the judgment of this Court in the case of Yashodharaben Vinubhai Patel vs. Dulabhai Bhikhabhai Mer and Others, 2016 (2) GLR 1221 , wherein such contention of deviating from the standard adopted in the case of Sarla Verma (supra) was put forward to consider 100% prospective rise in income. 4. Mr. Shelat has also referred to Paragraphs 11 and 24 in the case of Sarla Verma (supra) to contend that pay scale in force at the time of the accident is right standard to be adopted and the standard followed for adding the percentage of increase is required to be adopted for equity and therefore, Mr. Shelat submits that taking into consideration of the judgment in the cases of Pranay Sethi (supra) and Sarla Verma (supra), necessity to standardized the yardstick has been adopted and to maintain consistency. 5. In First Appeal no. 2372 of 2014, the Division Bench, while considering the question of granting future rise of income has observed in Paragraphs 5, 6, 7 and 8 as under: “5. We would first consider the question of granting future rise of income. As is well known, the two Judge Bench of Supreme Court in case of Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 attempted to standardize number of issues revolving around computation of compensation in accident cases, fatal as well as injury. We would first consider the question of granting future rise of income. As is well known, the two Judge Bench of Supreme Court in case of Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 attempted to standardize number of issues revolving around computation of compensation in accident cases, fatal as well as injury. These issues included the choice of multiplier, future rise in income and deduction for the personal expenditure of the deceased in case of death. Even after this judgment, the issues did not reach total uniformity. There were Supreme Court judgments either departing from or explaining and at times questioning the ratio of the judgment in case of Sarla Verma and Others (supra). On a reference, the three Judge bench of the Supreme Court in case of Reshma Kumari and Others vs. Madan Mohan and Another, (2013) 9 SCC 62 substantially confirmed what was said in case of Sarla Verma (Smt) and ors (supra). The issues still refused to die down. On a further reference Constitution Bench in case of Pranay Shethi and Others (supra) once again took up all such contentious issues and substantially confirmed the directives in case of Sarla Verma and Others (supra) however, making minor modifications. The conclusions of the Constitution Bench were as under: “61. In view of the aforesaid analysis, we proceed to record our conclusions: (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/- Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 6. By virtue of this judgment thus, the question of granting increase for future rise in income has been substantially standardized. One set of cases envisaged are where the deceased had a permanent job (contrary to what is often projected as permanent job is not synonymus with a Government job) and the other set of cases would be where the deceased is self employed or is on a fixed salary. Depending on which group the deceased belongs and his age, the future rise in income is prescribed. As laid down by the Supreme Court it becomes the law of the land. The Courts would therefore be expected to follow this trend. 7. We are conscious that in later judgments, two Judge Benches of the Supreme Court have made a minor departure. As laid down by the Supreme Court it becomes the law of the land. The Courts would therefore be expected to follow this trend. 7. We are conscious that in later judgments, two Judge Benches of the Supreme Court have made a minor departure. First in point of time is case of Hem Raj (supra), where the Supreme Court upheld the contention that if the evidence on record so warrants, rise in income, over and above what was suggested in case of Pranay Shethi and Others (supra), can be granted. The later in point of time was in case of Sureshchandra Bagmal Doshi and anr (supra) where the Supreme Court, noticed that the deceased was 25 years of age at the time of accident. He was working as a Sales Engineer in a private company. The Supreme Court approved the decision of the Tribunal granting 100% rise in salary for future. 8. From the above, it can be seen that the rise in income for future increase as provided by the Supreme Court in case of Pranay Shethi and Others (supra) has to be a norm, granting further increase an exception. In exceptional cases, where it is shown that the deceased was a young person, had exceptional academic qualification, had shown early potential of higher earning or where the last few years of income of the deceased shows a trend or steep rise, the departure may be permitted. However, merely showing the projected salary of a Government servant over a long period of time, showing steady rise with passage, would not be one such exceptional circumstance. As is well known, the salary structure of permanent Government employees is well defined. Two principal sources of rise in income are, periodic increments and rise in Dearness Allowance. Whereas Dearness Allowance takes care of the inflation ensuring that the pay package of the employee keeps pace with the rising prices, yearly increments are more in the nature of reward for long service and a recognition that with passage of time and seniority, the contribution of the employee would be higher. The claimants cannot produce projected salary over number of years after accidental death of the Government servant to argue that being an exceptional case the rise in income for future should be in deviation to judgment of Supreme Court in case of Pranay Shethi and Others (supra). The claimants cannot produce projected salary over number of years after accidental death of the Government servant to argue that being an exceptional case the rise in income for future should be in deviation to judgment of Supreme Court in case of Pranay Shethi and Others (supra). In the conclusion, we adhere to prescription of 30% rise in income looking to the age of the deceased.” 6. The Division Bench, thus, has rejected the argument of the claimants urging to deviate from the standard methods and had observed that the claimants cannot produce projected salary over a number of years after the accidental death to argue that being an exceptional case, rise in future income should be in deviation of the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra). 7. In the case of Sarla Verma (supra), in Paragraph 11, the relevant observations are as under: “11. 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 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 therefrom should be made only in rare and exceptional cases involving special circumstances. Re: Question (ii) - deduction for personal and living expenses.” 8. 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 be made only in rare and exceptional cases involving special circumstances. Re: Question (ii) - deduction for personal and living expenses.” 8. The observation so referred hereinabvoe made in the case of Sarla Verma (supra) referring to Susamma Thomas’s judgment is to follow and adopt the standard method of calculation though there may be evidence to indicate a different percentage of increase and when the deceased was self-employed and was on some fix salary, it has been observed that the Court would usually take the only actual income. Here, the appellants have failed to show any special circumstances. The comparison which has been made is of person who had been thereafter employee in the Company and the deposition of the witness-Rohitbhai Chauhan who is officer of Mahindra Gears and Transmission Pvt. Ltd. was recorded on 13.8.2015, while the date of accident is 29.12.2008. According to deposition of the witness, the deceased was drawing salary of Rs.3,652/- per month and as per his deposition, the new employee appointed in the place of deceased was drawing the salary of Rs.14,000/-. Though salary of the person who had been joined as new employee who was appointed in place of deceased was shown as Rs.14,000/- but the witness could not depose in the cross-examination about the efficiency of the deceased as he, as a witness, had not observed him, nor the witness could depose about any of his ability to have 100% rise in income. 9. In the case of Sarla Verma (supra), in Paragraphs 23 and 24, it has been observed that it would not be proper to take a hypothetical increase in income on any assumption of future rise or any exemption, even that actual future pay revision should be taken into account for the purpose of calculating the income. In Paragraphs 23 and 24, it has been observed as under: “23. Learned counsel for the appellants contended that when actual figures as to what would be the income in future, are available it is not proper to take a nominal hypothetical increase of only 50% for calculating the income. In Paragraphs 23 and 24, it has been observed as under: “23. Learned counsel for the appellants contended that when actual figures as to what would be the income in future, are available it is not proper to take a nominal hypothetical increase of only 50% for calculating the income. He submitted that though the deceased was receiving Rs.4004/- per month at the time of death, as per the certificates issued by the employer (produced before High Court), on the basis of pay revisions and increases, his salary would have been Rs.32,678/- in the year 2005 and there is no reason why the said amount should not be considered as the income at the time of retirement. It was contended that the income which is to form the basis for calculation should not therefore be the average of Rs.4004/- and Rs.8008/- but the average of Rs.4004/- and Rs.32,678/-. 24. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the nonexistence of such evidence at the time of accident.” 10. Here in this case, the accident is of the year 2008 while the deposition was recorded in 2015 and the judgment was delivered on 14.10.2016. The delay has caused because of the pendency of the matter and thus, the contention that the revision in pay scale subsequent to the death should be taken into consideration as 100 percentage would lead to disastrous consequences. The claimants could only rely upon the pay scale in force at the time of the accident. 11. The learned Tribunal has considered round figure of the monthly income at Rs.4,000/- and has given prospective rise in income at 50% which is in accordance to the judgment in the case of Pranay Sethi (supra) and the monthly income, thus, considers at Rs.6,000/-. 12. Learned advocate Mr. 11. The learned Tribunal has considered round figure of the monthly income at Rs.4,000/- and has given prospective rise in income at 50% which is in accordance to the judgment in the case of Pranay Sethi (supra) and the monthly income, thus, considers at Rs.6,000/-. 12. Learned advocate Mr. Sheth submits that the deceased was contributing substantial amount of his salary to the family since the family was large, but the claim petition itself suggests that his father and grandfather were living and thus, that contention would not find any ground in view of earning members of the family. The learned Tribunal has granted the amount under various heads as under: Future loss of income Rs. 6,48,000/- Conventional amount Rs. 30,000/- Funeral expenses Rs. 10,000/- Love and affection and consortium Rs. 20,000/- Total Rs. 7,08,000/- 13. Following the judgment in the case of Pranay Sethi (supra) and Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and Others, (2018) 18 SCC 130 , the mother would be entitled for the consortium money of Rs.40,000/- amount under the head of funeral expenses would be Rs.15,000/- and loss to estate Rs.15,000/- and if an amount has been granted under the head of love and affection, it can be appropriated as consortium money. Thus, the computation would be as under: Future loss of income Rs. 6,48,000/- Consortium money Rs. 40,000/- Funeral expenses Rs. 15,000/- Loss to estate Rs. 15,000/- Total compensation Rs. 7,18,000/- 14. As the Tribunal has awarded Rs.7,08,000/- as compensation, the appellants would be entitled to enhanced amount of compensation of Rs.10,000/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The insurance Company is directed to deposit Rs.10,000/- with interest at the rate of 7.5% per annum within eight weeks from the date of receipt of writ of this Court. The award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.