First Appeal No.2619 of 2010

6th December, 2013

Petitioner Counsel: Mr. ASIT B. JOSHI
Respondent Counsel: Mr. K.K. NAIR

Cases Cited:
Sarla Verma Vs. DTC, 2009(4) ALL MR 429 (S.C.) =(2009) 6 SCC 121 [Para 4,7]
Reshma Kumari Vs. Madan Mohan, 2013(3) ALL MR 460 (S.C.) [Para 8]

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and award dated 19.2.2010 passed by the M.A.C.T. (Main), Porbandar in MCA Petition No. 91/2003.

2. The facts of the present appeal is that the deceased Bhagvanjibhai Rudabhai Kanjia was died due to negligent driving of opponent no. 1 in the present incident, which was happened on 14.6.2003 at about 10.45am. Therefore, the present appellants have filed MAC Petition before the Tribunal, whereby, the learned Tribunal has rejected the claim of applicant no. 2 and has awarded compensation of Rs. 1,32,000/- against the opponents no. 1 to 3 together with proportionate costs and interest thereon at the rate of 9% per annum from the date of application till its realization.

3. As per the award, the learned Tribunal has adopted 55 years age of the deceased for the purpose of calculation of compensation. So far as the income of the deceased is concerned, the appellants have produced village Form No. 7-12 & 8-A at Ex. 26 & 27, and considering the above documents and looking to the nature of the work, the learned Tribunal adopted Rs. 3000/- monthly income for the purpose of calculation of compensation, out of this, 1/3 deduction Rs. 1000/- as a pocket expenses, so, Rs. 3000-1000 = Rs. 2000/-. The learned Tribunal has rejected the claim of original applicant no. 2 on the ground that he is the adult son of the deceased and was not falling within the purview of dependent. The Tribunal further held that so far as dependency is only for applicant no. 1 i.e. wife of deceased and she was 50 years old, therefore, the learned Tribunal has adopted 5 multiplier. So Rs. 2000 X 12 = 24000, 24000 x 5 = 1,20,000/-. The Tribunal also awarded Rs. 10000/- under the head of consortium and Rs. 2000/- as a funeral procedure after the death of the deceased. So, in all, the compensation of Rs. 1,32,000/- was awarded along with interest at the rate of 9% from the date of the application till its realization.

4. It goes without saying that the learned Tribunal has committed manifest error in granting multiplier of 5 though the admitted age of the deceased was in the bracket of 52 to 60 and the multiplier as admissible is 9. The aforesaid finding cannot be sustained, the reason being that even as per the decision of Sarla Verma vs. DTC, reported in (2009)6 SCC 121 : [2009(4) ALL MR 429 (S.C.)], Column No. 4 states and hold that the person of the age of 56 years will get the multiplier of 9. The rate of interest shall be 7.5%. The learned Tribunal ought to have at least gone through the decision of Sarla Verma vs. DTC, reported in (2009)6 SCC 121 : [2009(4) ALL MR 429 (S.C.)].

5. The learned Tribunal has shown his negligence of the provisions of Sec.166 of the M.V. Act. Section 166 of the MV Act, reads as under:

166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made -

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

6. The terminology in section 166 defining the persons who are entitled for compensation. The word 'dependent' is not there, on the contrary, it speaks only of the legal representatives of the deceased, and therefore, son would be of legal representative.

7. This takes this Court to the next issue. The learned Tribunal has grossly erred in rejecting the claim of appellant no. 2 on the ground that appellant no. 2 is an adult son, therefore, does not fall within the purview of dependent. In absence of any evidence to disprove the dependency of appellant no. 2, the learned Tribunal has erred in rejecting the claim of the appellant as dependent. The learned Tribunal has believed the age of the deceased 55 years, however, awarded compensation by computing the multiplier of 5 only. It is pertinent to note that age of 55 to 56 years cannot be considered to be old age, when the age span of the people has been enlarged to a very great extent, due to advanced medical science. The learned Tribunal ought not to have applied the multiplier of 5 only. The multiplier as envisaged in the case of Sarla Verma, [2009(4) ALL MR 429 (S.C.)] (supra), and the schedule, nowhere speaks about 5 multiplier of a person of 56 years of age. Even the learned Tribunal has cared to read the schedule, he would not have committed this mistake, rather which is apparent on the face of the record that the multiplier to the widow and the son cannot be 5. The impugned judgment and award rendered on 19.2.2010, much after the decision in the case of Sarla Verma & Ors., [2009(4) ALL MR 429 (S.C.)] (supra) was pronounced. The schedule in the bracket 55 to 60 reads as 8 and from 50 to 55 reads as 11. Even on that count, appeal deserves to be allowed. Even if the most conservative view is taken looking to the age of the deceased to 55, multiplier of 11. Therefore, as per Col. 4 as the deceased was admittedly 55 years age, multiplier of 11 and not 5 would be applicable. It appears that the learned Tribunal has instead of reading the age of the deceased as 55 years read it as 65 years, and therefore, the multiplier requires to be enhanced.

8. As far as agricultural land is concerned, the Apex Court has held that the age would be telling the same, and therefore, income out of that could not be counted. The income of Rs. 3000/- is just and proper. The Apex Court in the case of Reshma Kumari vs. Madan Mohan, [2013(3) ALL MR 460 (S.C.)] in para-29 and 33 held as under:

29. Section 168 of the 1988 Act provides the guideline that the amount of compensation shall be awarded by the Claims Tribunal which appears to it to be just. The expression 'just' means that the amount so determined is fair, reasonable and equitable by accepted legal standards and not a forensic lottery. Obviously, 'just compensation' does not mean 'perfect' or 'absolute' compensation. The just compensation principle requires examination of the particular situation obtaining uniquely in an individual case.

33. We have already noticed the Table prepared in Sarla Verma, 2009 ACJ 1298 (SC), for the selection of multiplier. The Table has been prepared in Sarla Verma (supra) having regard to the three decisions of this Court, namely, Susamma Thomas, 1994 ACJ 1(SC); Trilok Chandra 1996 ACJ831 (SC); and Charlie, 2005 ACJ 1131 (SC); for the claims made under section 166 of the 1988 Act. The court said that multiplier shown in column (4) of the Table must be used having regard to the age of the deceased. Perhaps the biggest advantage by employing the Table prepared in Sarla Verma (supra) is that the uniformity and consistency in selection of the multiplier can be achieved. The assessment of extent of dependency depends on examination of the unique situation of the individual case. Valuing the dependency or the multiplicand is to some extent an arithmetical exercise. The multiplicand is normally based on the net annual value of the dependency on the date of deceased's death. Once the net annual loss (multiplicand) is assessed, taking into account the age of the deceased, such amount is to be multiplied by a 'multiplier' to arrive at the loss of dependency. In Sarla Vemra (supra) this court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under section 166. It has been rightly stated in Sarla Verma (supra) that claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased,and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma (supra)."

9. Therefore, no addition of income is permissible, and hence, his income without any proof has been rightly held to be Rs. 3000/- and the same is not disturbed. However, additional multiplier 6 will enrule to the benefits of the dependents, Rs. 10,000/- should be added under the head of love and affections towards the widow and additional Rs. 3000/- as funeral procedure.

10. In the final analysis, Rs. 24,000 x 6 = Rs. 1,44,000 + 10,000 + 3000 = 1,57,000/-. Hence, the appellants are entitled to the enhanced amount of Rs. 1,57,000/- with interest at the rate of 7.5% and the opponents are directed to pay the difference of amount to the appellants. The appeal is partly allowed to the aforesaid extent.

Copy of this judgment be sent to Mr. A.D. Mogal.

Appeal partly allowed.