ORIENTAL INSURANCE CO. LTD. vs SMTI. RUBY SARMA and ORS

Heard Mr. S. Dutta, the learned Senior Counsel, assisted by Mr. C. Sharma, the learned Counsel for the appellant as well as Mr. M. Talukdar,

the learned Counsel for the respondents No.1, 2 and 3/ Cross Objectors. None appears on call for the respondent No.4 although the notice was

deemed to have been duly served and, as such, the appeal was heard ex parte against the said respondent.

This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the impugned judgment and award dated 17.03.2009

passed by the learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati, in MAC Case No. 3135/ 2006, thereby awarding a

compensation of Rs.6,02,000/- inclusive of no fault award with interest @ 7% p.a. from 20.12.2006, the date of filing of the claim petition till

realization.

While the insurer had filed this appeal, the claimants, who are arrayed as Respondents No.1, 2 and 3, had filed a cross- objection, which is

registered as C.O. No. 12/2004, thereby praying for enhancement of the award.

The case in brief is that at about 5.00 p.m. on 23.09.2006, while the deceased was walking from Lakhimandir towards his residence on foot, a

motorcycle bearing registration No. AS-01-T-5420, which was owned by the respondent No.4, was driven by one Gobinda Das (Opp. Party

No.2 in claim petition) in a rash and negligent manner, hit the deceased. He was shifted to a private hospital for treatment. However, he

succumbed to his injuries on 27.09.2006.

The appellant- insurer had filed their written statement and contested the claim by taking up usual pleas of denying their liability and requiring the

claimants to prove their case. On the basis of pleadings, the following issues were framed for trial:-

Whether victim Bhaba Taran Sarmah, died as a result of the injuries sustained by him in the alleged road accident dated 23.09.06 involving

vehicle No.AS-01/T- 5420 (Motorcycle) and whether the said accident took place due to rash and negligent driving of the driver of the offending

vehicle?

Whether the claimant is entitled to receive any compensation and, if yes, to what extent and by whom amongst the opposite parties, the said

compensation amount will be payable?

In order to prove the claim, the respondent No.1, who was the wife of the deceased had examined herself as PW-1. The appellant- insurer did

not lead any evidence.

In respect of Issue No.1, it was held that the offending vehicle was driven in a rash and negligent manner and the issue was decided in favour of

the respondents No.1, 2 and 3. In respect of Issue No.2, considering the age of the deceased as 59 years and monthly income to be Rs.12,418/-,

deducting one-third of income towards personal living expenses, by applying the multiplier of 8, the compensation was awarded as follows:-

Loss of dependency:Rs.99,344/- X 8:Rs.7,94,752/-

Loss of consortium: Rs. 5,000/-

Funeral expenses: Rs. 2,500/-

Total: Rs.8,02,252/-

Rounded to: Rs.8,02,000/-

The learned Senior Counsel for the appellant has submitted that the appellant had challenged the quantum of the award on the ground that the

deceased was 59 years old at the time of his death and therefore, he would have superannuated at the age of 60 years and, as such, if alive, the

deceased would have drawn his full salary only for 1 year. Thereafter, he would have drawn pension and therefore, if alive, the deceased would

have drawn pension for 5 years, which would have further reduced after 2 years when the deceased would have attained 67 years of age, as such,

the pecuniary loss would only be of the pensionable income. Thereafter, there would be no computation of loss after one attains 67 years of age

because then the multiplier under the Motor Vehicles Act, 1988 would exhaust. In this regard, the learned Senior Counsel for the appellant has

placed reliance on the case of Oriental Insurance Co. Ltd. Vs. Gunamoni Bora, 2008 (3) GLT 733. Based on petition filed under Order XLI Rule

27(1) CPC by the Cross Objector, it is submitted that the revision of pay subsequent to the death of the deceased would not entitle the

Revisionists/ Cross Objectors to enhanced compensation.

Per contra, the learned Counsel for the Respondents No.1, 2 and 3 i.e. the Cross Objector has submitted that only after the impugned judgment

and award was passed by the learned Tribunal, the respondents had come to know that there had been a pay revision by virtue of which the

deceased was drawing higher salary, as such, in order to prove the subsequently obtained document, the cross- objector had filed an application

under Order XLI Rule 27(1) CPC for proving three additional documents, viz., Salary Certificate dated 08.11.2013 (Annexure-A), Letter for

revision of family pension of the respondent/ Cross Objector No.1 (Annexure-2) and Letter dated 12.03.2009 from Central Pension accounting

Office (Annexure-3).

It is submitted that as per the Pay Slip of the deceased (Ext.4), the gross pay of the deceased was Rs.24,734/- and the deductions on account

of Professional Tax, Central Govt. Employees Group Insurance Scheme (CGEGIS), GPF Subscription, Central Govt. Health Scheme (CGHS)

was Rs.12,418/- and, as such, the net pay was Rs.12,316/-. However, only professional tax of Rs.208/- can be deducted from income, but the

learned Tribunal had erroneously allowed deduction of Rs.12,418/- from income, as such, a sum of Rs.12,210/- on account of GPF, CGEGIS

and CGHS is required to be added to income, as such, it is submitted that the income of the deceased ought to have been computed at

Rs.24,526/-. It is further submitted that there cannot be any deduction on account of income tax at source from out of the compensation award

payable.

It is submitted that the applicable multiplier would be 9 (nine) as per the ratio laid down in the case of Sarla Varma & Ors. Vs. Delhi Transport

Authority & Anr., (2009) 6 SCC 191, there cannot be bifurcation of compensation on the basis of pre-retirement and post- retirement calculation

as argued by the learned Senior Counsel for the appellant.

Therefore, the following points of determination arises in the present appeal:-

a) Which is the appropriate stage for consideration of an application for additional evidence under Order XLI Rule 27 CPC?

b) Whether it is permissible for bifurcation of compensation award on the basis of salary income in pre-superannuation stage and pensionable

income after retirement?

c) Whether there can be no computation of loss after one attains 65 years of age because then the multiplier under the Motor Vehicles Act, 1988

would exhaust?

d) Whether taxes including income tax are liable to be deducted by the insurer at source before disbursing compensation award?

e) Point of determination No.1 and 4:

a. It is well settled that the proper stage of considering the application for additional evidence under Order XLI Rule 27 CPC is the stage of final

hearing of the appeal as per the ratio laid down by the Hon''ble Apex Court in the case of Union of India Vs. Ibrahim Uddin, (2012) 8 SCC 148 .

The first point of determination is answered accordingly and therefore, in the present case, following the ratio of the case of Ibrahim Uddin (supra),

the application for additional evidence was also heard at the time of final hearing of the appeal.

b. On the issue of calculation of compensation, this Court is guided by the ratio laid down by the Hon''ble Apex Court in the case of Sarla Verma

(supra), wherein it was held that the revisions in the pay scales that may come into effect after the death and before the final hearing should not be

taken note of for the purpose of determining the income for calculating the compensation. Hence, no fruitful purpose would be served for the

permitting additional evidence under Order XLI Rule 27(1) CPC to exhibit subsequent documents to prove the pay revision that came into effect

after the death of the deceased. Hence, the issues raised in this appeal can be decided without taking recourse of additional evidence as proposed

by the learned Counsel for the Respondents No.1 to 3/ Cross- objector, as such, the M.C. 2912/14 stands dismissed.

c. The point of determination No.1 and 4 are answered accordingly. In paragraph 61(ii) of the case of Pranay Sethi (supra), the case of Rajesh &

Ors. Vs. Rajbir & Ors., (2013) 9 SCC 54 : 2013 (3) TAC 697 (SC), cited by the learned Counsel for the respondents No.1, 2 and 3 has been

held to be not a binding precedent. It also has the effect of implied over-ruling of the case of Budhulakshi Debbarma & Anr. Vs. State of Tripura,

2016 (2) TAC 673 (Tri), cited by the learned Counsel for the said respondents.

d. In this regard, the relevant paragraph 46 and 47 of the case of Sarla Verma(supra) are quoted below:-

In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High

Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous

circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two

decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the

High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay

applicable at the time of death and not with reference to any future revision in pay scales.

If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could rely upon

the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they

can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished

in this manner. We therefore reject 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.

f) Point of determination No.2 and 3:

a. In so far as the submissions made by the learned Senior Counsel for the appellant regarding bifurcation of compensation on the basis of pre-

retirement and post-retirement income is concerned, this Court is of the considered view that the Hon''ble Apex Court has settled the applicable

multiplier in the case of Sarla Verma (supra), which has been upheld by the Constitution Bench of the Hon''ble Apex Court in the case of National

Insurance Co. Ltd. Vs. Pranay Sethi, (2017) SCC Online SC 127 0.

b. As per the Second Schedule appended to the Motor Vehicles Act, the multiplier of 5 is applicable in cases where the deceased was above 65

years of age. However, as per the ratio in the case of Sarla Verma (supra), in paragraph 42 thereof, the Hon''ble Apex Court had provided for

multiplier of 5 for deceased aged between 66 to 70 years.

c. But at the same time, it is notable that the Hon''ble Apex Court did not make any distinction for deceased who were (i) service holders in

government and public sector undertakings, where there are regular pay-scales and time bound promotions, (ii) those in service in private firms and

establishments where the regular pay-scales and avenues of time bound promotion may not be there, and (iii) those in private business or

profession. In this connection, it would be relevant to quote the relevant paragraphs 44 and 45 of the case of Sarla Verma (supra).

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/-.

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 non-existence of such evidence at the time of accident.

d. In the case of Gunamoni Bora (supra), this Court had bifurcated the income of the deceased in two parts, the pre-superannuation income and

pension income. The relevant paragraphs 4 to 7 are quoted below for ready reference.

( 4 ) While considering the present appeal, what needs to be borne in mind is that when the multiplier applicable, in a given case, is

higher than the number of years of service, which the deceased could have put in, before his superannuation, the contribution to the

family, or loss of dependency of the family, cannot be assessed entirely on the basis of the last salary income of the deceased. When

a person''s age of superannuation is 59 years and he dies, in a motor vehicular accident, at the age of 57 years, leaving behind his

widow and children, the loss of dependency has to be calculated in a manner, which would be quite different from the manner of

making assessment of loss of dependency in the case of a person, who may have died, at the age of 40 years, with about 25 years of

service still left. In a case of present nature, when a person dies at the age of 57 years, whose age of superannuation is 59 years, his

financial contribution to the family could not have been the same after the age of 59 years. It is in this light that the decision, in Smt.

Shanta Lakshmi (supra), needs to be considered.

( 5 ) There is no dispute that in the present case, the salary income of the said deceased was Rs. 13,563/- per month and if 1/3rd of

this amount is deducted as the monthly personal expenses of the said deceased, the amount of salary income, available to the

claimants (had the said deceased remained alive), would have been Rs. 9,042/- per month. Thus, the loss of income suffered, at the

time of death of the said deceased, by the claimants was Rs. 9,042/- every month. What is, now, important to bear in mind is that

after 2 years 7 months, when the said deceased would have retired, the income of the said deceased could not have remained Rs.

13,563/- per month, for, what would have remained available to him is the pension amount. There is no dispute that in a case of

present nature, the pension amount, available to the said deceased, would have been, at best, Rs. 4,520/- per month. There is also no

dispute that if a person dies at the age of about 57 years, 8 shall be the appropriate multiplier. Thus, while calculating the loss of

dependency of the present claimants, the income of the said deceased ought to have been divided into two parts, the first part being

his salary income till the date of his superannuation and the second part, being his pension amount, for the remaining period of the

appropriate multiplier. Before superannuation of such a person, the loss of dependency, every month, would have been at the rate of

Rs. 9,042/- and, after superannuation, the loss of dependency would have been reduced to 2/3rd of the pension amount of Rs.

4,520/-, i. e. , a sum of Rs. 3,014/ -.

( 6 ) In the present case, since the appropriate multiplier is 8, the loss of dependency will have to be calculated with reference to the

salary income for a period of 2 years 7 months and the pension income for the remaining period of 5 years 5 months so that the

multiplier of 8 is exhausted.

( 7 ) What surfaces from the above discussion is that had the said deceased remained alive, the claimants would have been receiving

Rs. 9,042/-, per month, for a period of 2 and 7 months. Thus, the total amount, which would have been receivable by the claimants,

had the said deceased remained alive, would have been not more than Rs. 2,80,302/ -. For the remaining period of 5 years 5

months, the loss of dependency has to be calculated on the basis of loss of pension income, which amounts to a sum of Rs. 3,014/-

per month and it is this amount of Rs. 3,014/- per month, which needs to be multiplied by a period of 5 years 5 months and, when so

multiplied, the compensation, for the period of 5 years and 5 months, comes to a sum of Rs. 1,95,910/ -. Thus, the total sum

payable, as pecuniary loss or the loss of dependency of the claimants, works out to a sum of Rs. 1,95,910/ -. To this amount, needs

to be added a sum of Rs. 10,000/- as loss of consortium and another sum of Rs. 5,000/- as funeral expenses. Hence, the total sum,

payable, as compensation, to the claimants-respondents, would have been, at best, Rs. 2,10,910/-

e. The ratio decided by the Hon''ble Apex Court in the case of Sarla Verma (supra), stands approved by the Constitution Bench of the Hon''ble

Apex Court in the case of Pranay Sethi (supra). In paragraph 41 and 42 of the case of Sarla Verma (supra), the Hon''ble Apex Court has

explained the need for applying a uniform multiplier in cases under Section 166 of the Motor Vehicles Act, 1988. Thus, the case of Gunamoni

Bora (supra), wherein this Court had bifurcated the quantum of loss of dependency on the basis of pre-retirement income and pension income,

must be treated to be impliedly overruled by the Hon''ble Apex Court. This Court is bound by the case of Sarla Verma (supra) and Pranay Sethi

(supra).

f. The point of determination No.2 and 3 are answered accordingly.

g) Therefore, the appeal does not succeed.

h) Cross Objection:

a. It is seen that as per the Pay/ Salary Slip of the deceased (Ext.4), the gross pay of the deceased was Rs.24,734/-. Deductions on account of

Professional Tax, CGEGIS, GPF Contribution, and CGHS was Rs.12,418/-. Therefore, the net pay was taken to be Rs.12,316/-, as mentioned

in the said Pay Slip. However, as per the ratio of Sarla Verma (supra), as quoted herein before, only taxes are liable to be deducted from income.

Thus, permissible deductions can be made on account of Professional Tax of Rs.208/- as well as Income Tax. Thus, it is held that the learned

Tribunal had erroneously allowed deduction of Rs.12,418/- from income, as such, save and except professional taxes, a sum of Rs.12,210/- on

account of GPF, CGEGIS and CGHS is required to be added back to the income of the deceased. Hence, the monthly income of the deceased

ought to have been computed at Rs.24,526/- as per the entries made in the Salary Slip (Ext.4). If one needs an authority on the point, the case of

(i) Vimal Kanwar & Ors. Vs. Kishore Dan & Ors., 2013 (3) TAC 6 (SC ), (ii) Sunil Sharma & Ors. Vs. Bachitar Singh & Ors., 2011 (3) TAC

629 (SC) and (iii) Shyamawati Sharma & Ors. Vs. Karam Singh & Ors., (2010) 12 SCC 378, cited by the learned Counsel for the respondents

No.1, 2 and 3 may be referred to.

b. On the issue of future prospects, as per paragraph 60 and 61(iii) of the case of Pranay Sethi (supra), in case the deceased was between 50 to

60 years, as such, the addition on account of future prospects should be by 15%.

c. Moreover, as per the said paragraph 61(iii), it has been specifically clarified by the Hon''ble Apex Court that actual salary should be read as

salary less tax. Hence, the submission by the learned counsel for the cross- objector not to permit deduction of income tax at source from the

compensation award cannot be accepted. It is held that while paying compensation, the appellant is entitled to deduct the applicable income tax

and deposit the same to the Income Tax Authorities. It is made clear that the respondents No.1, 2 and 3 may furnish their respective Income Tax

details to the appellant so that the same can be disclosed/ reflected by the appellant while depositing the TDS so as to enable the said respondents

No.1, 2 and 3 to get benefit, if any, that they may be entitled to. In addition, it shall be the duty of the appellant to provide the TDS certificate to

the said respondents No.1, 2 and 3 after such deposit of TDS is made.

d. The point of what would be the appropriate multiplier in the present case is now taken up. The Hon''ble Apex Court has settled the issue of

applicable multiplier for cases under Section 166 of the Motor Vehicles Act, 1988 in the case of Sarla Verma (supra), which has been upheld by

the Constitution Bench of the Hon''ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. Therefore, as the deceased

was aged 59 years at the time of his death, the applicable multiplier would be 9 (nine) as per paragraph 42 read with chart given in paragraph 40

of the case of Sarla Verma (supra).

e. On interest, the learned Counsel for the respondents No.1, 2 and 3/ Cross objector has relied on the following cases:

i. Sanjay Batham Vs. Munnalal Parihar & Ors., 2012 (1) TAC 12 (SC).

ii. Vimal Kanwar & Ors. Vs. Kishore Dan & Ors., 2013 (3) 6 (SC).

iii. Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 (3) TAC 369 (SC).

iv. Josphine James Vs. United India Insurance Co. Ltd., 2013 (4) TAC 22 (SC).

v. Muni Rout & Anr. Vs. Satya Pradyumna Mohapatra & Ors., 2013 (4) TAC 840 (SC).

vi. Sanjay Kumar Vs. Ashok Kumar & Anr., 2014 (1) TAC 727 (SC).

vii. Kalpana Raj & Ors. Vs. Tamil Nadu State Transport Corporation, 2014 (2) SCC 744.

viii. Kala Devi & Ors. Vs. Bhagwan Das Chauhan & Ors., 2014 (4) 673 (SC).

ix. Ashvinbhai Jayantilal Modi Vs. Ramkaran Ramchandra Sharma & Anr., 2014 (4) 679 (SC).

x. Kumari Kiran Vs. Sajjan Singh & Ors., 2014 (4) 684 (SC).

xi. Asha Verma & Ors. Vs. Maharaj Singh & Ors., 2015 (2) 299 (SC).

xii. Chanderi Devi & Anr. Vs. Jaspal Singh & Ors.,2015 (2) TAC 337 (SC).

xiii. Surti Gupta Vs. United India Insurance Co. Ltd., 2015 (3) 5 (SC).

xiv. Kanhsingh & Anr. Vs. Tukaram & Ors., 2015 (2) TAC 689.

xv. Sandhya Ran Debbarma & Ors. Vs. National Insurance Co. Ltd., 2016 (4) TAC 165 (SC).

xvi. Nur Islam Vs. The Bajaj Allianz General Insurance Co. Ltd. & Anr., MAC Appeal No. 148/2014 decided by this Court on

05.06.2017.

i) In these cases interest at the rate of 9% was allowed. Except in the case of Jiju Kuruvila (supra) and Vimal Kanwar & Ors. (supra), where 12%

interest was awarded. In the case of Josphine James (supra), the Hon''ble Apex Court has held the award of interest @ 6% to be bad in law in

view of the decision rendered in the case of Association of Victims of Uphaar Tragedy, 2012 (1) TAC 31 (SC). The case of Josphine James was

decided on 14.08.2013, as such, from the date of filing of the claim petition, i.e. 26.12.2006 to 13. 08.2013, the respondents No.1, 2 and 3

would continue to be entitled to awarded interest of 7% p.a. However, on and from 14.08.2013, being the date when judgment was delivered in

Josphine James (supra), following the decision rendered in the said case, the crossobjector/ respondents No.1, 2 and 3 would be entitled to

interest on the awarded amount at the rate of 9% p.a. till realization of the awarded sum.

j) Thus, the cross objection deserves to be allowed to the extent as indicated in the computation below.

k) Resultantly, the compensation is determined as follows:-

a. Rs.24,526/- / 1/3 rd (deduction for personal expenses) = Rs.16,350/-

b. Add 15% towards future prospects (less 1/3rd for personal expenses i.e. Rs.2452/- Rs.817/- Rs.2,452/-

c. (a+b)= Rs.17,985/-

d. Computation = Rs.18,802/- X 12 X 9 = Rs.19,42,380/-

e. Loss of Estate [as per Pranay Sethi (supra)] = Rs.15,000/-

f. Loss of Consortium [as per Pranay Sethi (supra)] = Rs.40,000/-

g. Funeral expenses [as per Pranay Sethi (supra)] =

Rs.15,000/-

Rs.20,12,380/-

(Rupees twenty lakh twelve

h. (d + e + f + g) =

thousand three hundred eighty

only).

i. Less applicable income tax to be deducted while paying the award.

j. Award would carry interest @ 9% p.a. from 20.12.2006 (i.e. the date of filing of the claim

petition) to 13.08.2013 @ 7% and from 14.08.2013 till realization of the award @ 9% p.a.

l) The appeal is dismissed and the cross- objection is allowed. The award passed by the learned Tribunal stands enhanced to the extent as

indicated above. It is provided that in the event, the award shall be satisfied within a period of 60 days from today, failing which it would be open

for the respondents No.1, 2 and 3/ Cross- objectors to enforce the award in accordance with law.

m) Send back the LCR.