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Judgment
1.Heard Mr. S. Dutta, learned counsel appearing for the appellant as well as Mr. P. K. Deka, learned counsel for the respondent Nos.1 to 7. None
appears on call for the respondent No.8 i.e. the owner of the offending vehicle.
By filing an appeal under section 173 of the Motor Vehicles Act, 1988, the appellant has challenged the judgment and order dated 31.05.2011
passed by the learned Member, MACT, Hailakandi in MAC 56/2009.
The case of the respondent No.1 to 7 in the claim petition was that Late Abdul Sattar Laskar, the husband of respondent No.1, was serving as the
Headmaster of Sisu Kalyan L.P. School, Hailakandi. On 10.08.2009, at about 7:30 am, while he was walking by the side of National Highway, he was
knocked down from behind by the offending vehicle (Cruiser) bearing registration No.AS-24/6229. As a result of the accident, the deceased had
sustained grievous injuries and died on spot. In respect of the said accident, a case being Algapur P.S. Case No.160 dated 12.08.2009 under section
279/304A IPC was registered, which was later on converted to GR Case No.785/09. Post mortem was conducted on the dead body at Civil Hospital,
Hailakandi. In the claim petition it was projected that the deceased had an income of Rs.19,000/- from his salary and a claim for compensation
amounting to Rs.24,30,000/- was filed.
In support of their claim, the respondent Nos.1 to 7 had examined Md. Ruhul Islam Laskar (PW-1), Muslim Uddin Barbhuiya (PW-2) and Sahab
Uddin Laskar (PW-3). The following documents were exhibited: (1) Ejahar of Algapur P.S. case No.160/09 (Exbt-1), (2) Charge-sheet submitted in
connection with the said case (Exbt-2), (3) Seizure list [Exbt-3, 3(1) and 3(2)], (4) M.V.I. report (Exbt-4), (5) Post-mortem report (Exbt-5), (6) Salary
Certificate (Exbt-6).
The appellant/ insurer examined 2 (two) witnesses, namely, Jayanta Bhattacharjee, Investigator (DW-1) and Bhabesh Chandra Das, Administrative
Officer (DW-2). The appellant’s witness (DW-1) had exhibited a copy of the service book of the deceased as Exbt.-A.
The learned Tribunal by considering the evidence on record, specially the salary certificate, arrived at a finding that the gross salary of the deceased
including allowances was Rs.19,421/- but as per the revised scale of pay it would be Rs.22,250/- and as per the ROP, the professional tax would be
Rs.208/- per month. The date of birth of the deceased was taken as 28.02.1953 as per the entry contained in the Service Book (Ext-A), and it was
held that at the time of the accident, the age of the deceased was 57 years.
Relying on the case of Sarla Verma & ors Vs. Delhi Transport Corp. & anr, (2009) 6 SCC 121, appropriate multiplier was taken to be 9 and a
deduction of 1/5th of the income was made on recount of personal living expenses, and the annual loss of total dependency was taken to be Rs.
17,603.67 and total loss of dependency was:-Rs.2,11,244 X 9= Rs.19,01,196/-. The total compensation amount was computed as follows:-
(1) Loss of dependency : Rs.19,01,196/-
(2) Funeral expenses : Rs. 2500/-
(3) Loss of consortium : Rs.8000/-
(4) Loss of estate : Rs.8000/-
(5) Expenses of carriage of dead body : Rs.2000/-___________________________________________________
Total      Rs.19,21,696/-
________________________________________________________
(Rupees Nineteen lakh twenty one thousand six hundred and ninety six only).
The learned counsel for the appellant by relying on the case of Sarla Verma (Supra) has submitted that in para 45, 46, 47 thereof, the Hon’ble
Apex Court had rejected the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for
the purpose of determining the income for calculating the compensation. Therefore, accordingly, the gross pay of Rs.19,421/- as per the Salary
Certificate (Exbt.6), which was prior to revision of pay must be considered as a loss of income of the deceased. On the said amount, the admissible
deduction on account of professional taxes was Rs.208/- plus deduction on account of the applicable income tax, if any, payable on the said amount.
Per contra, the learned counsel for the respondent has argued in support of the impugned award. By relying on the post-mortem report (Exbt-5), it
is submitted that as per the Post-mortem report, the age of the deceased was 49 age and therefore, as per the decision in Sarla Verma (supra), the
applicable multiplier would be 13. Therefore, it is submitted that just and proper compensation be awarded to the respondents No. 1 to 7. Thus, as per
the submissions made by the learned counsel for both sides, (2) two points of determination arises for the decision in this appeal which are:
Whether the learned Tribunal was correct in determining the age of the deceased on the basis of the entries made in the service book of the
deceased (Exbt-A)?
Whether the computation of compensation could be accepted on the basis of the revised pay, which came after the death of the deceased?
On point of determination No.1:- Having heard the learned counsel for both sides and on perusal of the records, this Court is of the view that as
the respondent No.1 to 7 have made their claim by stating that the deceased was a government servant, as such, they would be estopped from not
relying on the service book of the deceased (Exbt.-A), which discloses that the date of birth of the deceased was recorded in the service book as
28.02.1953. Therefore, he would be aged about 56½ years on the date of the fateful accident i.e. on 10.08.2009. Therefore, as per the ratio laid
down in the said case of Sarla Verma (Supra), the age of the deceased whether it be taken as 56½ years or 57 years, it would attract a multiplier of
In view of the entries made in the service book (Exbt-A), this Court does not find any wrong in the finding recorded by the learned Tribunal that the
age of the deceased was 57 years. The learned Tribunal has rightly not considered the age of the deceased as given in the Post-mortem report.
Accordingly, the point of determination No.1 is answered in the affirmative by holding that there is no infirmity to hold that the age of the deceased
was 57 years.
On point of determination No.2:- From the ratio of the case of Sarla Verma (supra) which can be culled up from a perusal of para-47 thereof,
which is quoted above, it must be accepted as a trite law that the Tribunal cannot consider the revision in pay scale subsequent to death but before the
final hearing. Therefore, on this count, the computation of the quantum of compensation as done by the learned Tribunal is not sustainable. Hence, the
reliance by the learned Tribunal on the revised pay scale is set aside. The quantum of revision pay scale must be assessed on the gross salary which
the deceased was drawing at the time of his death which according to salary certificate (Exbt- 6) was Rs.19,471/-. On the said amount the
professional tax @ Rs.208/- is required to be deducted. Therefore, the admissible salary for the purpose of computing compensation would be
Rs.19,421/- â€" Rs.208/-= Rs.19,213/- (Rupees Nineteen thousand two hundred and thirteen only). 1/5th of such income is liable to be deducted on
account of personal living expenses as the deceased had left behind 7 dependants which is as per the ratio laid down in the case of Sarla Verma
(supra). Thus, on this ground, a sum of Rs.3,842.60/- is required to be deducted. Therefore, monthly salary for the purpose of computing compensation
would come to Rs.15,370.40 and the loss of dependency is liable to be re-assessed as follows: Rs.15370.40 X 12 X 9 = Rs.16,60,003.20/- or say
Rs.16,60,000/- (Rupees Sixteen lakh sixty thousand only).
As this order has been pronounced today, the permissible addition on account of funeral expenses, loss of consortium and loss of State as decided
by the Hon’ble Apex Court in the case of National Insurance Company Limited Vs Pranay Sethi, MANU/ SC/1366/2017: (2017) 8 Supreme 107
is required to be taken into account. Therefore, the compensation is assessed as under:
Loss of dependency (as above) = Rs.16,60,000/-
Funeral Expenses = Rs.15,000/-
Loss of Consortium = Rs.40,000/-
Loss of Estate = Rs.15,000/-
_____________________________________________________
Total = Rs.17,30,000/-
______________________________________________________
(Rupees Seventeen lakh thirty thousand only).
Accordingly, the appellant, who has stated to have deposited a part of the award is directed to deposit the balance amount of the total amount of
Rs.17,30,000/- as assessed herein above before the Registry of this Court within a period of 1(one) month from today. Any amount deposited by the
appellant including part payment of award, payment under ‘no fault liability’ and as statutory deposit is liable for adjustment against the payment
due under final award. It is further provided that if any Income Tax is deducted, the TDS Certificate shall be provided to the concerned respondents
No. 1 to 7 within a period of 1(one) month of such deduction, failing which, the respondents No. 1 to 7 shall be entitled to enforce the award for such
TDS amount as if the appellant did not deposit any TDS. The aforesaid amount would continue to carry interest @ 6% as per the award.
The Registry, on such deposit being made may release the amount to the respondent Nos.1 to 7 in accordance with the personal law governing the
respondents No. 1 to 7. If any of the respondents are still minors their share may be kept deposited in fixed deposit scheme of any Nationalized Bank
till the said minors attain their majority.
The appeal stands allowed to the extent as indicated above. There shall be no order as to cost of this appeal.
Return back the LCR.