Smt. Sarita Devi vs Yogesh Kumar and Others

R.S. Chauhan, J.—Smt. Sarita Devi, the appellant, has challenged the award dated 14.9.2010 passed by the Motor Accident Claims Tribunal, Sikar, whereby the learned Tribunal had granted 50% of the total compensation of Rs. 12,40,000/- to her i.e. Rs. 6,20,000/-, and 50% of the said compensation to her in-laws, namely respondent Nos. 4 and 5 before this Court. The brief facts of the case, as narrated in the claim petition, are that on 16.5.2006 around 10:30 AM Baljeet Singh, husband of claimant-appellant, along with other relatives, was travelling in a Scorpio car bearing registration No. RJ18-UA-0087. Since Yogesh Kumar, the driver-respondent No. 1, was driving the car rashly and negligently, it turned turtle near Kummas Jagir bus-stand on Sikar-Salasar road. Consequently, Baljeet Singh and his nephew, Deepak, died on the spot. Separate claim petitions were filed by the parents of Baljeet Singh and his wife, the appellant herein, before the learned Tribunal. After going through the oral and documentary evidence, the learned Tribunal granted the compensation as aforementioned through a common award. Hence this appeal for enhancement.

Mr. Sandeep Mathur, the learned counsel for the appellant, has raised the following contentions before this Court: firstly, the appellant''s husband Shri Baljeet Singh, was serving in the Indian Army and was earning Rs. 7,736/-, as is clear from his salary certificate Exh-12. While calculating the loss of dependency, the learned Tribunal has increased his salary from Rs. 7,736/- to Rs. 9,000/- while includes the prospect of future increase in salary his salary. However, relying on the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, the learned counsel has contended that in fact the future prospect of increase in salary should have been by 50%. Therefore, while calculating the loss of dependency, the Tribunal has mis-applied the guidelines established by the Hon''ble Supreme Court in the case of Sarla Verma (supra). Secondly, that according to the case of Sarla Verma (supra), a multiplier of 18 should have been applied, whereas the learned Tribunal has applied a multiplier of 17. Hence the entire loss of dependency needs to be recalculated keeping in mind the guidelines established in the case of Sarla Verma (supra). Thirdly, according to the learned counsel, the appellant is not aggrieved by the proportionment of 50% given to her and 50% given to her in-laws. However, as the in-laws have not filed an appeal before this Court, therefore any enhancement made by this Court should be given to her solely and should not be given to her in-laws.

On the other hand Mr. M.S. Kachhawa the learned counsel for Insurance Company, has vehemently contended that the appellant has not only remarried, but during the course of the proceedings she has been granted compassionate appointment. Therefore the question of adding the future prospect of increase in income does not arise.

Mr. Vinay Mathur, the learned counsel for respondent Nos. 4 and 5, the appellant''s in-laws, has pleaded that although the in-laws may not have filed an appeal before this Court, but considering the fact that a common judgment had been passed, the in-laws should be entitled to receive 50% of the enhanced amount, if any.

Heard the learned counsel for the parties, and perused the impugned award.

In the case of Sarla Verma (supra) the Apex Court had dealt with the issue of future prospect of addition to the income, and had observed as under:-

...In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.

Thus, according to the said guidelines, the learned Tribunal ought to have added 50% of the actual salary to the actual salary income of the deceased towards future prospect. After all, admittedly, the deceased was only 25 years old when he expired. Since there were no exceptional or special circumstances for deviating from the guidelines, the Tribunal was not justified in increasing the income from merely Rs. 7,736/- to Rs. 9,000/-.

Moreover, in the case of Sarla Verma (supra), the Hon''ble Apex Court has held that those who fall within the age bracket of 20 to 25, a multiplier of 18 should be employed. However, the learned Tribunal without any justification, has applied merely a multiplier of 17 in this case. Hence the loss of dependency deserves to be recalculated as under:-

7736 + 3868 x 12 x 18 x 2/3 = 16,70,976/-

The learned counsel for Insurance Company has claimed that the appellant had remarried and had been given a compassionate appointment. However, according to the learned Tribunal even after raising these pleas, the Insurance Company had failed to substantiate these pleas through cogent evidence. Therefore, these pleas were rejected, and in the view of this Court, rightly so by the Tribunal. After all, a plea taken by a party needs to be proved by the said party through cogent evidence. In the absence of a cogent evidence, a plea is left unsubstantiated. Therefore, the learned counsel for the Insurance Company is not justified in raising the said pleas before this Court. Hence both the pleas raised by him, are summarily rejected.

As far as the contention raised by learned counsel for the in-laws is concerned, suffice it to say, that the in-laws have not approached this Court by way of filing an appeal. If they were aggrieved by the award, they should have approached the Court by way of filing an appeal. By not filing an appeal, they have admitted that they are satisfied with the manner in which the award has been granted. Hence, obviously the amount of enhancement has to go to the appellant, and not to a party who has not even approached this Court. Therefore, the contention raised by Mr. Mathur is unacceptable.

For the reasons stated above, the appeal is allowed. The award dated 14.9.2010 is, hereby, modified as under:-

Loss of dependency

Rs. 16,70,976

Loss of consortium,

Loss of love and affection,

Loss of estate,

Funeral expenses and

Litigation charges

(+) Rs. 16,000

(as awarded by the learned Tribunal)

Total compensation as awarded

by the learned Tribunal

(-)Rs. 12,40,000

Enhanced amount

Rs. 4,46,976/-

The Insurance Company shall pay the enhanced amount to the appellant along with an interest of 6% per annum from the date of filing of the appeal i.e. 7.12.2010. The said amount shall be paid to the appellant within a period of three months from the date of receipt of a certified copy of this judgment.