2013(2) ALL MR 368
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.S. OKA AND S.S. JADHAV, JJ.

National Insurance Co. Ltd.Vs.Ms. Vaishali Harish Devare & Ors.

First Appeal No.1068 of 2012

31st August, 2012

Petitioner Counsel: Mr. Amol A. Gatne
Respondent Counsel: Mr. T .J. Mendon

(A) Bombay High Court (Appellate Side) Rules (1960), R.2, Cl.(1)(a) - Jurisdiction of Single Judge - Two conditions specified in sub-clause (a) are to be satisfied for the appeal to be placed before Single Judge - Even if one of them is not satisfied, appeal will have to be placed before Division Bench.

On plain reading of Sub Clause (a) of Rule 2 of Appellate Side Rules, it is apparent that the appeal from original decree can be heard by the learned Single Judge provided following two conditions are satisfied:

(a) Value of the subject matter in dispute in the Court or before the Tribunal of the first instance does not exceed a sum of Rs.50,00,000/- and;

(b) Wherein the value of the subject matter still in dispute on Appeal is Rs.50,00,000/- or less.

Unless both the conditions are satisfied, the appeals from the original decree in suits or from adjudication in other proceedings from which appeals lie to the High Court cannot be heard and disposed of by the learned Single Judge. Even if one of the two conditions is not satisfied, by virtue of Rule 1 of Chapter I, the appeal will have to be placed before a Division Bench. [Para 6]

(B) Motor Vehicles Act (1988), S.173 - Appeal against quantum of compensation only - Other assertions such as negligence of driver etc, not to be taken into consideration. (Para 9)

(C) Motor Vehicles Act (1988), Ss.173, 166 - Civil P.C. (1908), O.41 R.33 - Appeal against quantum of compensation - While deciding appeal, adjudication is to be made as to whether compensation granted by Tribunal is 'just compensation' - Such exercise is to be carried out even if claimants have not filed any cross-appeal or cross objection - Such adjudication is to be made even without taking recourse to O.41 R.33 of CPC.

It cannot be disputed that appeal being under section 173 of M.V. Act, the provisions of the CPC will have application to the appeal. An Appellate Court under the said Code while deciding an appeal against original decree has wide powers. The Appellate Court can exercise all the powers of the Court of first instance and can do everything which the Court of first instance could have done. It is well settled that this being appeal against the Award made on the claim petition under section 166 of the said Act, it is a continuation of the original claim petition. The claim petition filed under section 166 of M.V. Act is not in the nature of a suit. Under section 168 of the said Act, the Tribunal is duty bound to hold an inquiry to determine the amount of compensation which appears to be just. Thus, the concept of just compensation has been incorporated in section 168 of the said Act. It is well settled that the Tribunal constituted under the said Act is not bound by the strict rules of the evidence. As stated earlier, the claim petition under section 166 is not a suit . While deciding the claim petition, the Tribunal is under an obligation to determine just compensation payable to the Claimants. This appeal being the continuation of the claim petition, even this Court is under an obligation to determine the just compensation payable to the claimants. Even if there is no cross appeal or crossobjection preferred by the claimants, the exercise of determining the just compensation will have to be carried out. After carrying out the said exercise if it is found that the claimants are entitled to more amount than what is granted under the impugned Judgment and Award, in absence of appeal or cross objection, this Court may not enhance the compensation amount payable. Therefore, while deciding this appeal, an adjudication is required to be made whether the compensation granted by the Tribunal is a just compensation . Such adjudication can be made even without taking recourse to Rule 33 of Order XLI of CPC.

(2003) 2 SCC 274, 2010(6) ALL MR 942 (S.C.) Ref. to. [Para 16]

(D) Motor Vehicles Act (1988), Ss.166, 168 - Compensation - Computation of income of deceased to arrive at a multiplicand - Perks which were received by deceased for benefit of his family need to be included - Allowances meant for personal benefit of deceased, need not be included - Further, income tax payable by deceased will have to be deducted.

2008 ALL SCR 574, 2009 ALL SCR 1240 Rel. on. [Para 18,19]

(E) Motor Vehicles Act (1988), Ss.166, 168 - Compensation - Computation of income of deceased - Future prospects of increase in earnings of deceased if he had survived, will have to be taken into consideration.

2009(4) ALL MR 429 (S.C.) Foll. [Para 24]

Cases Cited:
National Insurance Co. Ltd. Vs. Indira Srivastava and others, 2008 ALL SCR 574=(2008) 2 SCC 763 [Para 11,17]
V. Subbulakshmi and others Vs. S. Lakshmi and another, 2008(2) ALL MR 763 (S.C.)=(2008) 4 SCC 224 [Para 11]
Bhakra Beas Management Board Vs. Kanta Aggarwal (Smt) and others, 2008(4) ALL MR 916 (S.C.)=(2008) 11 SCC 366 [Para 11]
Smt.Padmadevi Shankarrao Jadhav and others Vs. Kabalsing Garmilsing Sardarji and others, AIR 1985 Bom. 357 [Para 12]
Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another, 2009(4) ALL MR 429 (S.C.)=(2009) 6 SCC 121 [Para 2,20,21,25,26]
Santosh Devi Vs. National Insurance Co. Ltd. and others, 2012 ALL SCR 1292=Civil App. No.3723 of 2012, dt.23/4/2012 [Para 12,21,23]
Nagappa Vs. Gurudayal Singh, (2003) 2 SCC 274 [Para 15]
Leela Gupta Vs. State of Uttar Pradesh, 2010(6) ALL MR 942 (S.C.)=(2010) 12 SCC 37 [Para 15]
National Insurance Company Limited Vs. Saroj (Smt.) and others, 2009 ALL SCR 1240=(2009) 13 SCC 508 [Para 17,22]


JUDGMENT

-The parties were put to notice on the earlier date that the appeal will be heard finally at the stage of admission. Accordingly, the appeal was taken up for final hearing. The learned counsel for the first to third respondents on instructions states that the said respondents do not desire to prefer either cross appeal or cross objection for challenging the impugned Judgment and Award. We accept the said statement.

2. Before we proceed to deal with the facts of the case and the submissions canvassed by the learned counsel for the contesting parties, we may note that initially this appeal was placed before the learned Single Judge. The learned Single Judge by order dated 2nd August 2012 came to the conclusion that the appeal pertains to the jurisdiction of the Division Bench. When we called upon the registry to submit an explanation as to why the appeal was placed before the learned Single Judge, the Registrar (JudicialI) has placed on record order dated 6th December 2010 passed by a Division Bench of this Court in First Appeal no.1675 of 2010. It is pointed out to us that on the basis of the said order, the appeal was placed before the learned Single Judge.

3. The appeal arises out of an Award made by the learned Member of the Motor Accident Claims Tribunal, Mumbai. The first to third respondents are the claimants in the claim petition under section 166 of the Motor Vehicles Act,1988 (hereinafter referred referred to as the said Act). The original claim for compensation was in the sum of Rs.3,20,00,000/-. By the impugned Judgment and Award, the compensation has been fixed at Rs.50,75,000/- with interest thereon at the rate of 8.5% p.a from the date of claim application till realization of the amount.

4. The challenge in this appeal preferred by the appellant-insurer is confined to the compensation amount to the extent of Rs.14,91,000/-. In short, the impugned award to the extent of the rest of the amount of the compensation over and above the sum of Rs.14,91,000/- awarded including the interest part has been accepted by the appellant insurer. The fourth respondent insured did not contest the claim application. As the original claim was in the sum of Rs.3,20,00,000/-, for the purpose of jurisdiction, the appeal has been correctly valued at Rs.3,20,00000/- and for the purpose of court fees , the same has been rightly valued at Rs.14,91,000/-.

5. As far as jurisdiction of the learned Single Judge to entertain the First Appeals is concerned, a reference will have to be made to Chapter I of the Bombay High Court Appellate Side Rules,1960 (hereinafter referred to Appellate Side Rules). Rule 1 of Chapter I lays down that the Civil and Criminal jurisdiction of this Court on the Appellate Side shall, except in cases where it is otherwise provided for by the Rules, be exercised by Division Court consisting of two or more Judges. Thus, the basic rule is that unless a specific exception is carved out, all civil and criminal matters will have to be heard by a Division Bench. The Rule 2 of Chapter I carves out the exception by incorporating the list of matters which can be heard by the Single Judge. Sub clause (a) of Clause (I) of Rule 2 read thus :

"(a) Appeals (I) from original decree in suits or from adjudication in other proceeds from which appeals lie to the High Court as from original decrees, whether under the Civil Procedure Code or under any local or special Act, wherein the value of the subject matter in dispute in the Court or before the Tribunal of the first instance does not exceed [50 lakhs) rupees and wherein the value of the subject matter still in dispute on appeal is 50 lakhs rupees or less : provided, however, that the expression 'the value of the subject matter still in dispute on appeal' appearing in this subclause shall be construed to mean, where there is an appeal as well as a cross appeal or cross appeals or cross objections, the total of the values of the subjectmatters in dispute in the appeal as well as the cross-appeal or the cross appeals or the cross objections;

(ii) from appellate decrees in suits or from adjudications in other proceedings from which appeals lie to the High Court as from appellate decrees, whether under the Civil Procedure Code or under any local or special Act;

(iii) from decrees under section 144 of the Code of Civil Procedure;

(iv) from orders under section 104 or Order XLIII Rule 1 of the Code of Civil Procedure; and

(v) from orders under local or special Acts not having the force of a decree."

6. On plain reading of Sub Clause (a), it is apparent that the appeal from original decree can be heard by the learned Single Judge provided following two conditions are satisfied:

(a) Value of the subject matter in dispute in the Court or before the Tribunal of the first instance does not exceed a sum of Rs.50,00,000/- and;

(b) Wherein the value of the subject matter still in dispute on Appeal is Rs.50,00,000/- or less.

Unless both the conditions are satisfied, the appeals from the original decree in suits or from adjudication in other proceedings from which appeals lie to the High Court cannot be heard and disposed of by the learned Single Judge. Even if one of the two conditions is not satisfied, by virtue of Rule 1 of Chapter I, the appeal will have to be placed before a Division Bench.

7. At this stage, we may make a reference to the order dated 6th December 2010 passed by the Division bench of this Court in First Appeal no.1675 of 2010. the said order reads thus :

"Heard the learned counsel for the parties.

In MACP No. 193 OF 2002 the claimants had claimed a total compensation of Rs.70 lakhs along with interest and by the impugned award the Tribunal has granted a compensation of Rs.23,36,000/- ( inclusive of no fault liability amount) with interest at the rate of 6% per annum from the date of the claim petition till the realization of the compensation amount. There is no cross appeal as of now by the claimants for enhancement of the compensation amount.

Rule 2(1)(a) of Chapter I of the Bombay High Court Appellate Side Rules has been considered by us and in our opinion with the recent amendment of enhancing the value of the subject matter in dispute from Rs.10 lakhs to Rs.50 lakhs, this appeal is required to be placed before the Single Bench as of now.

Registrar (Judicial) to take appropriate steps."

8. Perusal of the said order shows that the controversy before the Division Bench was as regards the recent amendment made to the aforesaid clause (a) by substituting the figure of Rs.10,00,000/- by Rs.50,00,000/-. The said order does not interpret clause (a) to which we have made a reference earlier. In our view, as stated earlier, a Single Judge can entertain an appeal against the original decree provided both the conditions (a) and (b) which we have specified above are satisfied and even if one of the two conditions is not satisfied, the appeal will have to be placed before the Division Bench. The Registrar Judicial-I will have to take a note of this legal position and issue necessary instructions to the registry. Thus, we agree with the view taken by the learned Single Judge by order dated 2nd August 2012.

9. Now we turn to the merits of the controversy. The claim petition under section 166 of the said Act has been preferred claiming compensation on account of death of one Harish in a motor accident. The first respondent is the widow of the deceased, the second respondent is the minor son of the deceased and the third respondent is the mother of the deceased. The death occurred in the accident involving a motor vehicle which on the date of the accident was validly insured with the appellantinsurance company. It is not necessary to make a reference to the other assertions in the claim petition as regards the negligence on the part of the driver of the offending vehicle in as much as in this appeal, the only dispute is as regards the quantum of compensation granted by the Tribunal.

10. The Tribunal found that the deceased was gainfully employed with a shipping company. The Tribunal has taken the income of the deceased at Rs.45,000/- per month. After making one third deduction on account of personal expenditure of the deceased and after applying multiplier of 14, the Tribunal came to the conclusion that the loss of dependency will be to the extent of Rs.50,40,000/-. A sum of Rs.35,000/- has been granted on account of loss of love and affection.

11. The submission of the learned counsel for the appellant is that there is no cogent evidence on record to show that monthly income of the deceased was Rs.45,000/-. He invited our attention to the income certificate produced on record of the Tribunal. His contention is that the basic salary of the deceased as reflected from the certificate is Rs.31,950/-. His submission is that the amounts payable towards Academic Research Allowance, Uniform making allowance, Uniform washing allowance, Transport allowance conveyance and medical expenses which are shown as a part of the pay of the deceased cannot be taken into consideration as a part of the income for the purpose of calculating the multiplicand. His submission is that there is no evidence adduced by the claimants to show that the allowances and the amounts referred to above were being paid to the deceased for the benefit of the family of the deceased. His submission is that the burden to prove this fact is on the claimants which has not been discharged. He urged that as the claimants have not discharged the said burden, the basic salary ought to have been taken at Rs.31,950/-. He submitted that the multiplicand ought to have been arrived after deducting the appropriate amount towards the income tax. He placed reliance on various decisions of the Apex Court and this Court including the decision in case of National Insurance Co. Ltd. Vs. Indira Srivastava and others [(2008) 2 Supreme Court Cass 763] : [2008 ALL SCR 574]. He urged that even assuming that some allowances can be taken into consideration, income tax will have to be deducted from the gross salary and not from the net salary. He submitted that though in earlier part of the Judgment, the learned Judge rejected the evidence in the form of income tax returns, in other part of the Judgment he relied upon the income tax returns. Placing reliance on the decision of the Apex Court in case of V.Subbulakshmi and others Vs. S. Lakshmi and another [(2008) 4 Supreme Court Cases 224] : [2008(2) ALL MR 763 (S.C.)], he urged that income tax returns will have to be kept out of consideration. He submitted that the income tax ought to have been computed by taking into consideration the gross salary. His submission is that the first respondent-widow was granted employment on compassionate ground by the employer of the deceased and therefore, her income will have to be taken into consideration in view of the decision of the Apex Court in case of Bhakra Beas Management Board Vs. Kanta Aggarwal (Smt) and others [(2008) 11 Supreme Court Cases 366] : [2008(4) ALL MR 916 (S.C.)]. His submission is that the just compensation payable in any event cannot exceed to Rs.34,67,600/-.

12. During the course of submissions when the Court expressed a prima facie view that even if there is some error committed by the learned Judge while computing the compensation, notwithstanding the fact that no cross appeal or cross objection is filed, this Court court will have to determine what is just compensation, the learned counsel for the appellant submitted that this is not a case where power under Order XLI of Rule 33 of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) can be exercised. He placed reliance on the various decisions in this behalf including the decision of Division Bench of this Court in case of Smt.Padmadevi Shankarrao Jadhav and others Vs. Kabalsing Garmilsing Sardarji and others (AIR 1985 BOMBAY 357). He also pointed out that a departure has been made by the Apex Court from the view taken by it in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121] : [2009(4) ALL MR 429 (S.C.)]. In that behalf he placed reliance on the decision of the Apex Court in case of Santosh Devi Vs. National Insurance Co. Ltd. And others decided on 23rd April 2012 in Civil Appeal no.3723 of 2012 : [2012 ALL SCR 1292]. The learned counsel for the original claimants supported the impugned judgment and Award as just compensation has been awarded and submitted that no interference is called for.

13. We have carefully considered the submissions. We have perused a compilation consisting of the notes of evidence and true copies of the documents on record of the Tribunal. The first witness examined by the claimants is the first respondent, the widow of the deceased. She stated that the date of birth of her husband was 10th November 1960. She stated that the deceased was having a bright academic career and he was Master Mariner having certificate of Competency for foreign going ships issued by Mercantile Marine Department, Ministry of Transport, Government of India. In the deposition, she stated that the deceased acquired proficiency by obtaining various certificates after undergoing the courses such as Radar Observer, Chemical Tanker Safety, Automatic Radar Plotting Aids, Radar Simulator, Basic Fire Fighting, Advance Fire Fighting, Proficiency in Survival Craft, Specialised Tanker Safety Course, Endorsement Certificate, Ship Rebaldation Course, Safety and Quality Management, Shipmasters Medicare etc. She pointed out that the deceased at the time of accident was employed with Executive Ship Management Pte Limited as a General Manager and was drawing a consolidated salary of Rs.45,000/- per month. She claimed that in addition to the salary, the deceased was entitled to car allowance, Travel allowance, Medical facilities, bonus etc. She relied upon the salary certificate issued by the employer. She stated that the age of the deceased at the time of death was 40 years and he was having a robust health. She made out a case that in normal course the deceased would have been promoted to the post of Resident Director and would have earned remuneration of Rs.30,00,000/- per annum. She stated that the claimants were dependents on the income of the deceased. In further examination-in-chief, the documents produced by the claimants were marked as exhibits. In the cross examination, she stated that at the time of accident, her deceased husband was Master Mariner (Chief Captain). She stated that since 1998, her deceased husband was working in the said company. She stated that she is working as Administrative Manager in the same Company and her monthly salary is about Rs.45,000/-. In the cross examination, it is brought on record that the age of the third respondent was 80 years and she was residing along with the first respondent. It is pertinent to note that not even a suggestion was given to the first respondent that her appointment as Administrative Manager was made on compassionate ground after death of her husband. Apart from the first respondent herself, one Ms Rashmi Narvekar, Manager Corporate of the employer Company of the deceased was examined as a witness to prove the certificates at Exh.72 and Exh.76. She reiterated that the deceased was employed in the Company from June 1998 and in the month of August 2001, monthly salary drawn by the deceased was Rs.45,000/-. She stated that there is no age of retirement fixed by the Company and the age of retirement depends upon physical and mental fitness of the employee. She claimed that the deceased would have been promoted to the post of Resident Director and he would have earned Rs.29,76,000/- per annum. Though in the cross examination of the witness, it is brought on record that the first respondent was working as Administrative Officer, again no suggestion was given to her that the first respondent was granted an appointment on compassionate ground. She denied the suggestion that the salary certificate at Exh.72 was a false document.

14. The claimants also examined one Jagannath Joshi, Chartered Accountant. He stated that the employer company of the deceased was his client and he was also working as statutory Auditor of the company. He submitted that he was looking after tax work of the deceased. He stated that income tax returns at Exh.46 (collectively) were filed through his office from July 1998 onwards. He stated in the first assessment year , the salary of the deceased was Rs.1,02,000/-. It is stated that at the time of death, the net salary drawn by the deceased was Rs.35,250/- per month. He disclosed the income of the deceased as reflected from the income tax returns filed during the last three years. We find that there is hardly any serious cross examination made of the said witness on any material aspect.

15. It cannot be disputed that in a claim petition filed under section 166 of the said Act, the claimants are entitled to just compensation. In the case of Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Apex Court held thus :

"21. For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award "just" compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under subsection (4) to Section 166, even the report submitted to the Claims Tribunal under subsection (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition." (emphasis added)

In the case of Leela Gupta v. State of Uttar Pradesh, (2010) 12 SCC 37 : [2010(6) ALL MR 942 (S.C.)], the Apex Court observed thus:

"5. The House of Lords in Taff Vale Railway Co. v. Jenkins laid down the test that award of damages in fatal accident action is compensation for the reasonable expectation of pecuniary benefit by the deceased's family. The purpose of award of compensation is to put the dependents of the deceased, who had been breadwinner of the family, in the same position financially as if he had lived his natural span of life; it is not designed to put the claimants in a better financial position in which they would otherwise have been if the accident had not occurred. At the same time, the determination of compensation is not an exact science and the exercise involves an assessment based on estimation and conjectures here and there as many imponderable factors and unpredictable contingencies have to be taken into consideration. The statutory rule enacted in Section 110B of the 1939 Act (now Section 168 of the Motor Vehicles Act, 1988) is award of "just compensation". (emphasis added)

16. It cannot be disputed that this appeal being under section 173 of the said Act, the provisions of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) will have application to the appeal. An Appellate Court under the said Code while deciding an appeal against original decree has wide powers. The Appellate Court can exercise all the powers of the Court of first instance and can do everything which the Court of first instance could have done. It is well settled that this being appeal against the Award made on the claim petition under section 166 of the said Act, it is a continuation of the original claim petition. The claim petition filed under section 166 of the said Act is not in the nature of a suit. Under section 168 of the said Act, the Tribunal is duty bound to hold an inquiry to determine the amount of compensation which appears to be just. Thus, the concept of just compensation has been incorporated in section 168 of the said Act. It is well settled that the Tribunal constituted under the said Act is not bound by the strict rules of the evidence. As we have stated earlier, the claim petition under section 166 is not a suit . While deciding the claim petition, the Tribunal is under an obligation to determine just compensation payable to the Claimants. This appeal being the continuation of the claim petition, even this Court is under an obligation to determine the just compensation payable to the claimants. Even if there is no cross appeal or crossobjection preferred by the claimants, the exercise of determining the just compensation will have to be carried out. After carrying out the said exercise if it is found that the claimants are entitled to more amount than what is granted under the impugned Judgment and Award, in absence of appeal or cross objection, this Court may not enhance the compensation amount payable. Therefore, while deciding this appeal, an adjudication is required to be made whether the compensation granted by the Tribunal is a just compensation . Such adjudication can be made even without taking recourse to Rule 33 of Order XLI of the said Code.

17. In the present case, the deceased was in service. As far as determination of income by way of salary is concerned, the law has been laid down by the Apex Court in case of National Insurance Company Ltd. Vs. Indira Srivastava and others, [2008 ALL SCR 574] (supra). In paragraph 10 of its decision, the Apex Court held thus :

"10...If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicant is required to be determined...." (emphasis added)

The ultimate conclusion is in paragraph 19 of its Judgment which reads thus :

"19 The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income by way of contribution to the family as contra distinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted." (emphasis added)

We may make a useful reference to the another decision in the case of National Insurance Company Limited Vs. Saroj (Smt.) and others [(2009) 13 Supreme Court Cases 508] : [2009 ALL SCR 1240]. After referring to aforesaid decision of the Apex Court, in paragraph 13, the Apex Court as observed thus:

"13 The amount of compensation which is required to be determined by the Tribunal must be just. In certain situations as for example in the case of the death of the only son to a mother, no monetary compensation would be sufficient. Whereas the court, while determining the amount of compensation, should consider the amount of monetary loss which had been and would be suffered by the heirs and legal representatives of the deceased, the same should not be a windfall. It is for the aforementioned purpose, not only the take-home salary is to be taken into consideration but also other allowances and perks which would have benefited the entire family." (emphasis added)

18. Thus, the well settled position of law is that the amounts which were paid to the deceased by way of perks should be taken into consideration for computation of monthly income provided the perks were for the benefit of the family of the deceased. However, the allowances which were meant only for his personal benefit cannot be taken into consideration. The income-tax will have to be deducted from the income while arriving at the income for determining multiplicand.

19. Now we make a reference to the salary certificate which is proved by the witness Ms Rashmi Narvekar. The basic salary as shown therein is Rs.31,950/- and the other allowances shown are as under :

Academic Research Allowance

Rs.3000/-

Uniform Making Allowance

Rs.2000/-

Uniform Washing Allowance

Rs.3000/-

Transport Allowance

Rs 800/-

Conveyance

Rs.3000/-

Medical Expenses Rs.1250/-

Due to absence of any evidence adduced by the first respondent to show that the Uniform Making Allowance, Uniform Washing Allowance, Transport Allowance, Conveyance, Medical Expenses were for the benefit of the family, the same cannot taken into consideration for computing the loss of dependency. As far as the Academic Research Allowance is concerned, the same is payable as a perk apart from the basic salary. As suggested by the very name, it was not payable to the deceased by way of reimbursement of expenditure incurred by him. Hence, the benefit thereof was available not only to the deceased but also to his family members. Therefore, the said amount will have to be taken into consideration and will have to be added to the basic salary of Rs.31,950/-. Thus, the gross salary comes to Rs.34,950/- which can be rounded off to Rs.35,000/-.

20. The other issue which arises for consideration is whether future prospects of increase in the earnings of the deceased can be taken into consideration for the purpose of calculating multiplicand. In this behalf, it is necessary make a reference to the decision of the Apex Court in case of Sarla Verma and others, [2009(4) ALL MR 429 (S.C.)] (supra). We may note that it is apparent from the paragraphs 10 to 19 of the said decision that the Apex Court has laid down the guidelines for computing the compensation payable by applying multiplier method. Issue regarding the future prospects of the increase in the earnings was also considered by the Apex Court. In paragraph 24 of the said decision, the Apex Court has held thus :

"24 In Susamma Thomas this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. 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 standardize 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. " (emphasis added)

21. The learned counsel for the appellant has invited our attention to the recent decision of the Apex Court in case of Santosh Devi, [2012 ALL SCR 1292] (supra). We have perused paragraph 14 of the said Judgment. We do not find that the Apex Court has made a departure from the view taken in the case of Sarla Verma, [2009(4) ALL MR 429 (S.C.)] (supra). The Apex Court,while dealing with the case of deceased who were self employed or who were paid fixed salary has observed thus:

"14...Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation." (emphasis added)

22. On this aspect we may also make a reference to the decision of the Apex Court in case of National Insurance Company Ltd. Vs Saroj, [2009 ALL SCR 1240] (supra) In paragraph 14, the Apex Court has observed thus :

"14 The prospective loss of future earnings should also be borne in mind. The quantum of compensation must be determined on certain legal principles. The deceased might have a bright future prospect. He would have been in normal situation, considered for promotion immediately. Although rigid tests are difficult to be laid down, any kind of hypothesis, as far as possible should be avoided."

23. Thus, in the recent judgment of the Apex Court in case of Santosh Devi, [2012 ALL SCR 1292] (supra), the Apex Court held that it would be reasonable to say that the person who is self-employed or is engaged on fixed wages will also get 30% increase in the total income over a period of time and if he/she becomes victim of accident, then the same formula (as laid down in Sarla Verma's case) deserves to be applied for calculating the amount of compensation.

24. Hence,future prospects of increase in the earnings of the deceased will have to be taken into consideration for the purpose of calculating the income for determining multiplicand. There is evidence on record to show that there were such prospects. In the present case, the deceased was in the employment of the same company from July 1998. In the evidence of Mr.Joshi, Chartered Accountant he has stated that the income of the deceased for the assessment year 2000-2001 was Rs.1,53,000/- and the income for the assessment year 2001-2002 was Rs. 3,17,500/-. He stated that the gross salary for the period from 1st April 2001 to 24th August 2001 was Rs.2,03,750/-. We have already found that there is hardly any cross examination on the point of figures borne out from the documents on record. Thus, the documents show that at least for last three years there was steady rise in the income of the deceased.

25. The qualifications of the deceased as reflected from the evidence of the first respondent are already referred to in the earlier part of the Judgment. We have also referred to the evidence of Ms Rashmi Narvekar, the Manager Corporate of the employer. The witness deposed that the deceased would have reached the position of Resident Director of the company and his salary would have been Rs.29,000,00/- per annum. There is no serious challenge to the statement that he would have been reached the position of the Resident Director. The only challenge in the crossexamination is to the figure of Rs.29,00,000/- per annum. Looking to the qualifications of the first respondent, the position which he held in a merchant shipping company and oral testimony of the aforesaid witnesses, it can be certainly said that there were more than reasonable prospects of increase in the earnings of the deceased in future if he had survived. We cannot ignore the fact that the deceased was Master Mariner having a certificate of Competency conferred by Mercantile Marine Department, Ministry of Transport, Government of India. Therefore, in the facts of the case, we will have to follow the guidelines laid down by the Apex Court in case of Sarla Verma, [2009(4) ALL MR 429 (S.C.)] (supra) in paragraph 24 thereof. In fact in the facts of the case, more than 30% of the amount of last income will have to be added towards future prospects of earnings. But higher income in future would have attracted higher slab of income tax. Hence, we are taking into consideration only 30% increase.

26. The income tax payable by the deceased will have to be deducted. The yearly income of the deceased was Rs.4,20,000/- (35000 x 12). Thus, yearly income can be taken at Rs.4,20,000/-. Adding 30% to the same, yearly income comes to Rs.5,46,000/-. As number of dependents on deceased are 3, in terms of the decision of the Apex Court in case of Sarla Verma, [2009(4) ALL MR 429 (S.C.)] (supra), one third deduction will have to be made on account of personal expenditure of the deceased. Thus, a sum of Rs.1,82,000/- will have to be deducted. Thus, the yearly dependency comes to Rs.3,64,000/-. After deducting income tax of about 31,000/-, loss of yearly dependency will be Rs.3,33,000/-. The completed age of the deceased at the time of death was 40 years. In terms of the decision of the Apex Court in case of Sarla Verma and others, [2009(4) ALL MR 429 (S.C.)] (supra), for the age group of 36 to 40 multiplier of 15 has been specified. For the age group of 41 to 45, multiplier of 14 has been specified. Therefore, by applying multiplier of 15, the total loss of dependency will be Rs.4,95,000/-. The Tribunal has added Rs.35,000/- to the said amount towards loss of love and affection and funeral expenses etc. Thus, the total amount payable will be Rs.50,30,000/-.

27. After applying settled principles of law, we have arrived at conclusion that the just compensation payable will be Rs.50,30,000/-. Only to that extent, the impugned Judgment and Award will have to be modified.

28. Hence, we dispose of the appeal by passing the following order :

i) The compensation amount payable to the claimants is reduced to Rs.50,30,000/-. Rest of the Award regarding interest and other directions including the order for payment of costs is maintained.

ii) Appeal is partly allowed to the aforesaid extent with no order as to costs.

iii) A sum of Rs.25,000/- deposited in this Court shall be transferred to the concerned Tribunal.

iv) Civil Application no.2197 of 2012 does not survive and the same is disposed of.

v) As we have interpreted Rules 1 and 2 of Chapter I the Bombay High Court Appellate Side Rules,1960, we direct Registrar (Judicial-I) to forward copies of this Judgment to the Registrar at Aurangabad, Nagpur and Panaji.

Appeal partly allowed.