Bhagirathi Devi And Another vs Ompal And Others

Alok Singh, J

Present appeal is filed by the claimants / appellants for enhancement challenging the judgment and order dated 30.09.2011 passed by MACT, Tehri Garhwal, in MACP No.30 of 2010.

Brief facts of the present case, inter alia, are that Manmohan (deceased) was working as Research Scientist in Sugar Mills Limited, Dhampur and was earning Rs.20,000/- per month. On 28.09.2008, Manmohan along with his friend was coming from Kalagarh to Dhampur on motor cycle bearing registration no. UP 02 R 4933. At about 03.30 p.m., driver of truck bearing registration no. HR 46 B 0927 driving the truck rashly and negligently, hit the motor cycle from back, as a result of which, Manmohan received grievous injuries and died on the spot. Postmortem of the deceased was conducted in District Hospital, Bijnor. At the time of incident, truck was insured with respondent no.2. Claimants / appellants filed a claim petition before the MACT concerned, which granted compensation of Rs. 659643/-along with 5% per annum interest. Feeling aggrieved, claimants / appellants have approached this Court.

Heard Mr. Sandeep Kothari, Advocate for the appellants / claimants and Mr. A.M. Saklani, Advocate for respondent no. 1 / owner of the vehicle. None appears on behalf of the respondent no. 2 / Insurance Company despite sufficient service.

Mr. Sandeep Kothari, Advocate for the appellants contends that learned Tribunal has not considered the monthly income of deceased as Rs.20,000/- though claimants had submitted the monthly income certificate of deceased Manmohan. In support of his contention, he has placed reliance on paper no.52 Ga. He further submits that learned Tribunal has failed to add 50% of the actual salary to the income of deceased towards future prospects. He further submits that learned Tribunal has applied wrong multiplier of "7" on the basis of age of father whereas it should be "18" on the basis of age of deceased; learned Tribunal has not awarded amount under the heads loss of estate and has awarded only Rs.2000 towards funeral expenses whereas it should be not less than Rs.15000/-. In support of his contentions, he has placed reliance on the judgments of Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Seth and others reported in 2018 (1) UD 394 and Sube Singh Vs. Shyam Singh and others reported in 2018 (3) SCC 18.

Let me now examine whether the Tribunal was right in holding the monthly income of deceased as Rs.16,009/-. In the monthly salary of deceased, learned Tribunal has considered basic salary, professional development allowance and children development allowance as part of monthly income viz. Rs.10000 + Rs. 3500 + Rs.2509 = Rs.16,009/-. Apart from this, deceased was also getting Rs.833/- per month as medical reimbursement, Rs.833/- as leave travel assistance, Rs.833/- as leave encashment and Rs.292/- as monthly share of bonus. In my opinion, deceased joined the office as Research Scientist in the June, 2008 and died on 28.09.2008, therefore, bonus and leave encashment cannot be considered as part of salary because both can be paid after earning them but monthly allowance of medical reimbursement and leave travel assistance shall be made part of the salary, therefore, in my opinion, monthly income of the deceased would be Rs.10,000 (Basic Pay) + Rs.3,500 (Professional Development Allowance) + Rs.2,509 (Children Education Allowance) + Rs.833 (Medical Reimbursement) + Rs.833 (Leave Travel Assistance) = 17,675/- per month.

Three Judge Bench of Hon'ble Supreme Court in the case of Sube Singh Vs. Shyam Singh and others reported in 2018 (3) SCC 18, relying on the judgments in the case of Sarla Verma Vs. Delhi Transport Corporation reported in 2009 (6) SCC 121 and National Insurance Company Ltd. Vs. Pranay Sethi reported in AIR 2017 SC 5157 and Munna Lal Jain Vs. Vipin Kumar Sharma reported in 2015 (6) SCC 347, has held that multiplier should depend on the age of the deceased and not on the age of the dependents.

In the present case, deceased was 25 years of age, at time of incident, therefore, in my opinion, multiplier of 18 would be appropriate.

The Constitution Bench in case of National Insurance Company Ltd. Vs. Pranay Sethi reported in AIR 2017 SC 5157 has concluded as under:

"In view of the aforesaid analysis, we proceed to record our conclusions:

(i) ..........

(ii) ........

(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%. 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.

In the present case, deceased was appointed as Research Scientist in June, 2008 and died on 28.09.2008, therefore, deceased cannot be said to be a permanent employee but for the sake of future prospects, deceased case can be considered under the category of fixed salary. Therefore, 40% should be added in his monthly income towards future prospects.

Monthly income of the deceased was 17,675/-. Since mother and father are dependents, therefore, ½ should be deducted from his monthly income, which comes to Rs.8,837/-. His annual income would come to Rs.1,06,044/-. 40% should be added towards future prospects, so his annual income comes to Rs.1,48,461/-. Now, apply the multiplier of 18, so this amount would come to Rs.26,72,298/-. The Tribunal has awarded Rs.2000/- towards funeral expenses, which in my opinion, should be Rs.15000/-. Claimants / appellants are also entitled for Rs.15,000/- towards loss of estate.

Accordingly, respondent no. 2 - Reliance Insurance Company is directed to pay a sum of Rs.27,02,298/- (Rs.26,72,298 + Rs.15,000 + Rs.15,000) along with interest @ 6% per annum to the appellants / claimants from the date of filing of petition before the MACT concerned, within two month from date of production of certified copy of this judgment. Judgment passed by the MACT is modified to the above extent.

Present appeal is allowed in above terms. No order as to costs.