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Judgment
Feeling aggrieved and dissatisfied by the judgment and award dated 28.4.2003 passed by the Motor Accident Claims Tribunal (Aux), Mahesana in
Motor Accident Claim Petition no.1200 of 2001, the insurance Company has filed this appeal under section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as the “Actâ€). The respondents â€" original claimants have also filed CrossÂObjections for enhancement of the
compensation.
Following facts emerge from the record of the appeal:Â
That, the accident took place on 24.7.2001 at about 06:45 p.m., near Sametra Village of Mehsana Taluka. As per the record, the deceased â€
Mehulkumar Kantilal Vyas was working as Chargeman (Electrical) with ONGC and had a salary of Rs.30,000/Â. As per the record, on the date of
the accident, the deceased was returning from ONGC site by luxury bus bearing registration no. GJÂ1 XÂ 9571 from Chalasana towards Mehsana
and when the luxury bus reached the scene of occurrence, which was being driven in a rash and negligent manner with full speed, turned turtle as the
driver lost control and the deceased Mehulkumar sustained fatal injuries and died on the spot. An FIR was lodged with Mehsana Taluka Police Station
at Exh.45. The claim petition was filed by the respondents â€" original claimants under Section 166 of the Act and claimed compensation of
Rs.50,00,000/ with 18% interest per annum. The respondents  original claimants relied upon the oral evidence and the respondents  original
claimants have examined Pashyantiben, wife of the deceased at Exh.26, one of the witness of the accident â€" Upendrakumar Raval was examined
at Exh.44. The respondents  original claimants also relied upon the documentary evidence, such as, FIR at Exh.45 and Panchnama at Exh.31. It was
the case of the respondents  original claimants that the deceased was working as Chargeman in ONGC and was earning a sum of Rs.30,000/ per
month and in order to prove the same, the respondents  original claimants relied upon the Finance Officer of ONGC â€" Mr. Vijaykumar Jethalal
Bhatt at Exh.28 and also relied upon the certificate at Exh.28A and the pay slip at Exh.29 and the FormÂ16 of the deceased at Exh.30. The Tribunal,
after appreciation of the evidence on record, came to the conclusion that the salary of the deceased was Rs.2,05,000/Â per annum and ultimately,
determined the income of the deceased at Rs.20,000/Â per month and gave benefit of 50% prospective income and after deduction of oneÂfourth
towards personal expenses, applied multiplier of 15 and awarded Rs.36,00,000/Â as compensation under the head of future loss of income and also
further awarded a sum of Rs.20,000/Â as loss of consortium under the conventional heads and Rs.3,000/Â towards funeral charges and thus, awarded
a sum of Rs.36,23,000/Â with 9% interest per annum from the date of filing of the claim petition till its realization. Being aggrieved by the same, the
insurance Company has preferred this appeal and the respondents original claimants have also filed Cross Objections, as aforesaid.
Heard Ms. Rohini Acharya, learned advocate for the appellant, Mr. N.D. Gohil, learned advocate for respondents no.1 to 4 â€" original claimants
and Mr. Dipak Thakkar, learned advocate for respondent no.6. Ms. Rohini Acharya and Mr. N.D. Gohil, learned advocates, at the outset, submitted
that original respondent no.5 â€" Kantaben Kantilal Vyas, who happens to be the mother of the deceased, has expired on 30.6.2008 i.e. during
pendency of the appeal and therefore, prayed that respondent no.5 be deleted. Mr. Gohil has also produced a photocopy of the death certificate of the
respondent no.5, which is taken on record and accordingly, respondent no.5 is permitted to be deleted from the array of this appeal. As legal heirs are
already on record of the deceased, no others are required to be brought on record as the respondent no.5 died during pendency of this appeal.
Ms. Rohini Acharya, learned advocate for the appellant has contended that the Tribunal has erred in considering the income of the deceased at
Rs.20,000/Â per month. It is contended that the pay slip at Exh.29 clearly establishes the fact that the salary of the deceased was less than
Rs.20,000/Â per month. It is further contended that the Tribunal has also erred in not deducting the amount paid by the deceased as incomeÂtax and
professional tax and the Tribunal has also considered other allowances which were temporary or special in nature as part of the income and therefore,
the learned advocate for the appellant submitted that the Tribunal has erred in determining the income of the deceased at Rs.20,000/Â per month,
which should be sliced down. It is also contended that the Tribunal has committed an error in considering the prospective income of the deceased to
the extent of 50%. It is further contended that the Tribunal has also erred in applying multiplier of 15 as the evidence clearly establishes the fact that
the deceased was 43 years old on the date of the accident and therefore, multiplier of 14 would be applicable. On the aforesaid grounds, it is therefore
contended that the appeal may be allowed and CrossÂObjection filed by the claimants may be dismissed. At the end, learned advocate requested that
the impugned judgment and award may be modified.
Per contra, Mr. N.D. Gohil, learned advocate for the respondents no.1 to 4 â€" original claimants has submitted that on the contrary, the Tribunal
has wrongly considered the income of the deceased at Rs.20,000/Â per month even though the evidence on record and the FormÂ16 at Exh.30 shows
that the income of the deceased was more than Rs.5,00,000/Â per annum in the year of accident. It is further contended that the Tribunal has rightly
awarded prospective income to the tune of 50%. It is further contended that the Tribunal has awarded a meager amount of Rs.20,000/Â under the
conventional heads, which should be enhanced to Rs.2,50,000/Â. It is also contended that multiplier of 15 is appropriately granted by the Tribunal and
the same does not require any consideration or modification by this Court. On the aforesaid grounds, it is therefore contended that the appeal, being
meritÂless, deserves to be dismissed and the CrossÂObjections filed by the respondents  original claimants may be allowed and the impugned
judgment and award may be modified and the compensation may be enhanced as prayed for.
Mr. Dipak Thakkar, learned advocate for respondent no.6 has submitted that the Tribunal has awarded just compensation and the appeal, being
meritÂless, deserves to be dismissed. Mr. Thakkar, however, submitted that as far as the Cross Objections are concerned, this Court may pass
appropriate orders.
No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
Upon considering the rival submissions made by both the sides and on perusal of the original record and proceedings, it would be appropriate to note
that as far as the fact that the deceased was working in ONGC as Chargeman (Electrical) is not in dispute.
The accident was occurred on 24.7.2001. Upon reappreciation of the evidence on record at Exh.30 i.e. FormÂ16, it clearly appears that FormÂ16
reflects the income received by the deceased as gross salary and the incomeÂtax deduction. However, the fact remains that FormÂ16 also shows
that certain arrears of salary was paid to the deceased. The respondents  original claimants have also examined Finance Officer of the ONGC at
Exh.28â€"Mr. Vijaykumar Jethalal Bhatt and the said witness has also brought on record the Office Order dated 14.5.2001, which recites that with
effect from 1.1.2001, the deceased, who was working as Chargeman (Electrical), was granted new basic pay with effect from the said date i.e.
Rs.9,366/Â.
Upon reappreciation of the evidence on record in form of the Office Order at Exh.28A and the FormÂ16 at Exh.30, however, the same does not
show the actual income of the deceased on the date of the accident. The accident has occurred on 24.7.2001 and the pay slip at Exh.29 is of the
month of the accident. Upon reappreciating the evidence in form of pay slip at Exh.29, it is noteworthy that it is a pay slip of the deceased â€
Mehulkumar as well as B.R. Joshi who was also working as Chargeman (Electrical). As such the pay slip of the deceased shows that his gross salary
for the month was Rs.26,995.07, which also includes overtime allowance of Rs.5,661/Â, deduction of Rs.2,886/Â towards incomeÂtax and Rs.80/Â‐
towards professional tax, whereas, the pay slip at Exh.29 shows that B.R. Joshi was working on the same post had been given similar effect to Office
Order at Exh.28A i.e. his basic was shown as Rs.9,365/Â. Upon reappreciation of the evidence on record and considering the Office Order at
Exh.28A and the pay slip of similarly situated officer â€" B.R. Joshi at Exh.29, while determining the income of the deceased, the same can safely be
based upon the Office Order at Exh.28A and by giving effect of the same, the income of the deceased for the month of July, 2001 i.e. the month in
which the accident has occurred, can be taken at Rs.31,113/Â. The contention therefore raised by Ms. Acharya that the income of the deceased has
to be considered even less than Rs.20,000/Â per month as has been determined by the Tribunal as well as the contention of Mr. N.D. Gohil that it
should be based upon total income which is shown in FormÂ16 at Exh.30, both cannot be accepted. We come to the said conclusion because there is
a definite evidence on record by way of pay slip which has, in fact, been even deposed by the Finance Officer of the ONGC who was examined at
Exh.28.
In order to determine just compensation, we are of the opinion that the income of the deceased should be determined at Rs.31,113/Â gross income
per month. The incomeÂtax as well as the professional tax and the overtime allowance, being a special allowance and not a permanent, deserves to
be deducted and thus, Rs.8,627/Â would be required to be deducted from gross income in order to arrive at the net income, which comes to
Rs.22,486/Â per month and therefore, the annual income of the deceased would come to Rs.2,69,832/Â. Record indicates that the deceased was 43
years old on the date of the accident and was employed in ONGC and hence, following the judgment of the Hon'ble Apex Court in the case of
National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the respondentsÂoriginal claimants would be entitled
to increase in income i.e. prospective income to the tune of 30% (i.e. Rs.80,949/Â), which comes to Rs.3,50,781/Â and after deducting oneÂfourth
towards personal expenses i.e. Rs.87,695/Â, the income of the deceased per year would come to Rs.2,63,086/Â.
As the age of the deceased was 43 years, as observed hereinabove, the Tribunal has committed an error in applying multiplier of 15. Following the
judgment of the Hon'ble Apex Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, multiplier
of 14 would be applicable. Therefore, the respondents original claimants would be entitled to compensation under the head of future loss of
dependency would come to Rs.36,83,204/Â.
As far as the contention raised by Mr. N.D. Gohil that in facts of this case, as the accident is of the year 2001, the respondentsâ€" original
claimants would be entitled to conventional amount of Rs.2,50,000/Â including the funeral expenses, cannot be accepted, in view of the judgment in
the case of Pranay Sethi (supra). As held by the Hon'ble Apex Court in the case of Pranay Sethi (supra), the respondents  original claimants would
be entitled to Rs.70,000/ as compensation under the conventional heads including funeral expenses and thus, the respondents  original claimants
would be entitled to total compensation of Rs.37,53,204/Â. As the Tribunal has awarded Rs.36,23,000/Â, the respondents  original claimants would
be entitled to additional compensation of Rs.1,30,204/Â with 9% interest per annum from the date of filing of the claim petition till its realization. The
appellant â€" insurance Company is directed to deposit the additional amount of Rs.1,30,204/ along with the proportionate cost and interest with the
Tribunal within a period of three months from the date of receipt of this judgment and order.
In view of the foregoing therefore, the appeal stands dismissed. However, the Cross Objections stands allowed to the aforesaid extent. The
impugned judgment and award is modified to the aforesaid extent. Registry is directed to send back the record and proceedings to the Trial Court
forthwith. However, there shall be no order as to costs in this appeal.