Madhukanta Vyas vs Antram Batham and Others

S.S. Jha, J.—This appeal is filed by claimants for enhancement of compensation. Other findings recorded by the Tribunal pertaining to rash and negligent driving by the driver of MP-07 N 2468 and death of deceased Ramesh Chand Vyas are not under challenge. There is no dispute as to the right of appellant to get the compensation. This appeal is confined to quantum of compensation only.

Now we proceed to decide the question of compensation in this case. Deceased Ramesh Chand Vyas died in a accident on 5th November, 1999. After his death claimant has filed an application for compensation before the Second Motor Accident Claims Tribunal, Gwalior. Deceased was Ranger in the department of Forest and at the relevant time was holding the post of Forest Extension Officer, drawing salary of Rs. 9,138/- per month and yearly salary of the deceased was Rs. 1,09,656. Counsel for appellant submitted that according to claimant the age of deceased Ramesh Chand Vyas was 54 years at the time of accident and Claims Tribunal has committed error in applying multiplier of 8. Counsel for appellant further submitted that Claims Tribunal committed error in determining the income of the deceased at Rs. 7,107 and incorrectly determined the dependency of the appellant. It is submitted by Counsel for appellant that after applying proper multiplier of 11, compensation should be determined. It is submitted that the compensation be enhanced with interest and cost of the appeal be awarded to the appellant.

On the other hand, Mr. Aran Pataria, Counsel for owner and driver of the vehicle and Mr. Section Gajendragadkar, appearing for the Insurance Company submitted that compensation awarded is on the higher side. It is further contended by them that burden to prove the age of deceased was upon the claimant who was in possession of the documents pertaining to date of birth of deceased but the documents were concealed and not filed before the Tribunal in spite of specific direction by the Claims Tribunal. Counsel for Insurance Company submitted from the evidence of AW 3 N.C. Verma. Insurance Company has proved the date of birth of deceased was 7th February, 1942. Therefore, Claims Tribunal has committed error in holding the age of deceased as 55 years, relying upon the post-mortem report. Mr. Gagendragadkar submitted that since the deceased was a Government servant and was likely to be continued in service upto the age of 60 years, therefore, the income of the deceased upto to the age of 60 years was different and after retirement the compensation will be payable on the pension of the deceased. He referred to judgment in the case of Malla Prakasarao Vs. Malla Janaki and Others, , in support of his contention and invited attention of this Court to para 15 of the judgment. Counsel for the respondent has referred to a judgment of the Karnataka High Court in the case of Union of India and others Vs. K.S. Lakshmi Kumar and Others, , invited attention to para 16 of the judgment wherein it is held in the case that:

Where the multiplier applicable is higher than the number of years of service which the deceased has before superannuation, the contribution to the family (or loss of dependency) cannot obviously be calculated with reference to the salary income, for the entire period of multiplier. Let us illustrate. If a person aged 56 years (whose age of superannuation is 60 years) dies in an accident, leaving him surviving his wife and two children, how should the total loss of dependency be calculated. It is held that the deceased would have got salary income for only 4 years and then he would get only pension. If the deduction towards personal and living expenses of the deceased is one-third, the contribution to the family during the period of service that is 4 years would have been Rs. 4,000 (that is Rs. 6,000 - Rs. 2,000). But, obviously the contribution to the family would not have been Rs. 4,000 after his retirement, that is, from the 5th year onwards. When the pension is Rs. 3,000 per month, after deducting one-third as personal and living expenses, the contribution to the family will only be Rs. 2,000 per month, therefore, the loss of dependency cannot be taken as Rs. 4,000 per month for the entire period of 9 years representing the multiplier. It has to be taken as Rs. 4,000 per month for the first four years and Rs. 2,000 per month for the remaining five years.

The method adopted will have to be adopted in this case. He has referred another judgment in the case of Smt. Nirmla Puri Vs. Gurmel Singh and Others, and invited attention to para Nos. 7 and 8 of the judgment where similar principles have been laid down.

Counsel for owner and driver of the vehicle Mr. Arun Pataria referred to judgment regarding adverse inference against the claimants pertaining to age and referred to judgment in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others,

Counsel for appellant submitted that the principle for determining the compensation has been laid down in the case of Jyoti Kaul and Others Vs. State of M.P. and Another, and it is submitted that multiplier of 15 will be applicable in this case. He placed reliance on para 10 of the judgment and submitted that even in the event of sole surviving heir, dependency will be 1/3rd of the income of the deceased. It is held in this case that even if the deceased was aged 50 years, then also multiplier of 15 will be a proper multiplier since the deceased was in a good health. Para 10 of the judgment is reproduced below:

The aforesaid decision makes it clear that the principle of multiplier would depend on the facts and circumstances of each case. Looking to the facts of this case we find that the Tribunal has given good reasons for applying the multiplier of 15. This was in addition of taking into consideration that the predecessors of the deceased all lived for more than 80 years. The High Court reduced the multiplier from 15 to 10 without taking into consideration circumstances considered by the Tribunal and thus committed the error. We accordingly set aside the findings of the High Court only to the extent of the application of multiplier and uphold other findings including reduction of interest. The present appeal, accordingly, succeeds in part. The computation of compensation now shall be made on the basis of multiplier of 15. The difference of enhanced amount which has yet not been paid by the respondent State shall be paid to the claimants within a period of three months from today.

Thus, in this case, the Apex Court held that in every case the principle of multiplier would depend upon the facts and circumstances of each case.

It is not in dispute that the salary of deceased was Rs. 9,168 per month. The deductions from salary were towards his provident fund, insurance and recovery of the department. Therefore, the amount which was deducted was either towards contribution or for premium of insurance or for some recovery of the advance from the Government. This amount will form part of the salary and we hold that the income of deceased was Rs. 9,138 per month and yearly income was Rs. 1,09,656.

Now we consider what will be the dependency of the claimants. In the income certificate the age of deceased employee is not mentioned. Claimant in her evidence has deposed that the age of deceased was 54 years. The salary certificate (Ext. P-8) was issued by the D.F.O., Social Forestry Range. Deceased has served for about 19 years as per the certificate, but the age is not mentioned. On the other hand, surveyor of respondent No. 3 Insurance Company has mentioned that the deceased was appointed on 5th January, 1963 on the post of Forester and at the time of accident he was holding the post of Forest Ranger and the age of the deceased was 7th February, 1942 as per service records. The service record has not been produced. Insurance Company has also called the service record in evidence to prove the age of deceased and, therefore, in the circumstances we accept the age of deceased mentioned in the post-mortem report (Ext. P6). In the post-mortem report the age of deceased was mentioned as 55 years. Thus, deceased was 55 years of age at the time of accident.

Now, we consider the ratio laid down in the case of Malla Prakasrao (supra). It may be mentioned in this case that the claimant is the sole survivor and deceased has no children. However, considering the facts of the case, we hold that the deceased was spending 50% of income upon himself and yearly dependency is determined at Rs. 54,828 (fifty four thousand eight hundred twenty-eight). The claimant is entitled to compensation for first 5 years on this dependency that is Rs. 2,74,140 (two lac seventy-four thousand one hundred forty only) for remaining period of three years the compensation will be depending upon the pension of the deceased that will be around 50% of the basic salary of Rs. 6,900/-, that is Rs. 3,450 per month and yearly pension will be Rs. 41,400, out of which deceased was spending 50% upon himself and remaining 50% upon his wife and dependency will be Rs. 20,700 and compensation for 3 years will be Rs. 62,100 and total compensation will be Rs. 2,74,140 + 62, 100=3,36,240 (Rupees three lac thirty-six thousand two hundred forty only). The principle of one-third dependency in the case where deceased is survived by widow only will not be applicable and dependency will be 50% of the income. By applying 50% dependency, we find that the compensation awarded by the Claims Tribunal is on higher side. Since there is no cross-objection challenging the quantum of compensation by the respondents, we refrain from interfering with the quantum of award already awarded to the appellants.

In the result, we do not find any ground to interfere with the quantum of compensation in this appeal. Appeal fails and is dismissed without any order as to costs.