Insurance Company Limited v/s Shyam Singh and Others (2011) 7 SCC 65 was required
to deal with a similar situation. It was a case where the aged parents were
the sole dependents of their young deceased son. It is in these
circumstances that the Apex Court was required to consider whether the
age of the deceased or the age of the dependent parents, would be
considered while applying the multiplier. The Apex Court after
considering the imponderable factors in the determination of
compensation and following Vijay Shankar Shinde and Others v/s State
of Maharashtra (2008) 2 SCC 670
held that the multiplier that would apply, would be one,
after taking into consideration the average age of the parents of the
deceased. Paras 9 and 10 reads thus:-
“9. This Court in Vijay Shankar Shinde and Others v/s State of
Maharashtra, after referring to the earlier judgments of this
Court, in detail, dealt with the law with regard to determination
of the multiplier in a similar situation as in the present case. The
said findings of this Court are as under:
"6. We have given anxious consideration to these
contentions and are of the opinion that the same are
devoid of any merits. Considering the law laid down in
New India Assurance Co. Ltd. v. Charlie, it is clear that the
choice of multiplier is determined by the age of the
deceased or claimants whichever is higher. Admittedly,
the age of the father was 55 years. The question of
mother's age never cropped up because that was not the
contention raised even before the Trial Court or before
us. Taking the age to be 55 years, in our opinion, the
courts below have not committed any illegality in
applying the multiplier of 8 since the father was running
56th year of his life.
7. The learned Counsel relying on the Second Schedule of
the Act contended that the deceased being about 16 or
17 years of age, a multiplier of 16 or 17 should have
been granted. It is undoubtedly true that Section 163A was
brought on the Statute book to shorten the period of
litigation. The burden to prove the negligence or 6 fault
on the part of driver and other allied burdens u/s 140 or
166 were really cumbersome and time consuming.
Therefore as a part of social justice, a system was
introduced via Section 163A wherein such burden was
avoided and thereby a speedy remedy was provided. The
relief u/s 163-A has been held not to be additional but
alternate. The Schedule provided has been threadbare
discussed in various pronouncements including Deepal
Girishbhai Soni v. United India Insurance Co. Ltd.AIR 2004
SC 2107. The Second Schedule is to be used not only
referring to age of victim but also other factors relevant
therefore. Complicated questions of facts and law
arising in accident cases cannot be answered all times
by relying on mathematical equations. In fact in U.P.
State Road Transport Corporation v. Trilok Chandra (1996) 4
SCC 362, Ahmedi, J. (As the Chief Justice then was)
has pointed out the shortcomings in the said Schedule
and has held that the Schedule can only be used as a
guide. It was also held that the selection of multiplier
cannot in all cases be solely dependent on the age of
the deceased. If a young man is killed in the accident
leaving behind aged parents who may not survive
long enough to match with a high multiplier
provided by the Second Schedule, then the Court
has to offset such high multiplier and balance the
same with the short life expectancy of the claimants.
That precisely has happened in this case. Age of the
parents was held as a relevant factor in case of
minor's death in recent decision in Oriental
Insurance Co. Ltd. v. Syed Ibrahim and Ors. AIR
2008 SC 103. In our considered opinion, the Courts
below rightly struck the said balance."
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.724 OF 2015
WITH
CIVIL APPLICATION NO.4357 OF 2014
IN
FIRST APPEAL NO.724 OF 2015
The New India Assurance Company Limited
v/s.
Ramrao Lala Borse
CORAM : A. S. OKA &
REVATI MOHITE DERE, JJ.
Dated: : 23rd OCTOBER, 2015.
Citation: 2016(6) ALLMR 89
1. Rule. Rule is made returnable with the consent of the parties
forthwith and is taken up for final hearing.
2. The Appellant – Insurance Company has taken exception to the
Judgment and Award dated 21st July, 2014 passed by the learned District
Judge – 5 and Additional Member, Motor Accident Claims Tribunal,
Thane at Thane, by which the Respondent – Claimants were awarded
compensation of Rs.61,55,000/- with simple interest @ 9% per annum
from the date of the petition till its realization.
3. The impugned award has been challenged by the Appellant –
Company on several counts, viz., (i) that the issue of negligence has not
been proved ; (ii) that the compensation awarded by the Tribunal is
contrary to the established legal principles. It is contended that though the
last salary certificate of the deceased reflected his salary as Rs.2,800/- per
month, the Tribunal has erred in concluding the income of the deceased to
be Rs.40,000/- per month ; (iii) that the Tribunal has committed an error in
awarding 50% towards future prospects, though the deceased was
working as an Assistant Teacher on temporary contract basis with an
unaided school ; (iv) that the Tribunal has erred in choosing the multiplier
of '17' on the basis of the age of the deceased by ignoring the age of the
respondent – claimants i.e. parents as has come on record ; and (v) that the
dependency formula of 1/3rd was wrongly applied, considering the fact that
the first respondent – claimant i.e. the father was not dependent on the
deceased ; and lastly (vi) that the rate of interest awarded @9% per annum
on the additional income of future prospects from the date of the
application till realization is unjustified.
4. The respondent – claimants supported the award and contended
that no interference was warranted in the same.
5. Before we deal with the rival submissions, it would be
necessary to set out the factual matrix of the case and the evidence
adduced by the respondent – claimants in support of their claim petition.
On 19th February, 2006, Deepak was travelling as a passenger in a luxury
bus on the Mumbai – Agra Road. He was occupying a seat on the driver's
side of the bus. When the bus was near Maharana Hotel, Village Atgaon,
District Nashik, a truck bearing No.RJ-01-G-6386 is stated to have come
from the opposite direction and dashed into the luxury bus on the driver’s
side, resulting in the passengers including Deepak suffering grievous
injuries. Deepak was shifted to the Government Hospital, Nashik,
however, he succumbed to the fatal injuries. The driver of the trailer truck
is alleged to have driven the vehicle in excessive speed and in a rash and
negligent manner, resulting in the collision. FIR came to be registered
against the driver of the offending truck. At the relevant time, the deceased
– Deepak was serving as an Assistant Teacher in the Dadasaheb Dandekar
Vidyalaya, a school run by Shishu Vihar Education Society. The first and
the second respondent – claimants, i.e. the father and mother of the
deceased – Deepak respectively, filed a claim petition under Section 166 of
the Motor Vehicles Act, 1988 in the Motor Accident Claims Tribunal,
Thane in 2008 as against the owner of the offending truck and the
appellant – company and sought compensation of Rs.66,70,000/-. The
third respondent failed to contest the petition and hence the appellant –
company sought leave to defend and contested the claim petition, by filing
their written statement. The appellant - Company denied that the driver of
the offending truck was negligent and that Deepak suffered injuries in the
accident and died as a result of the same. They also questioned the claim
petition with regard to the age, income and nature of employment of the
deceased, the age of the respondent – claimants and contended that the
claim petition was exorbitant.
6. The respondent – claimants in support of their claim petition
examined the first respondent – claimant ; PW.2 – Deepali Abhay Tambde,
an Accountant in Shishu Vihar Shikshan Sanstha to prove the income of
the deceased ; PW.3 – Sudhir Gunvantrao Deshmukh – Secretary of
Shishu Vihar Educational Trust, also to prove the income of the deceased ;
and PW.4 – Suresh Kulkarni – Assistant Teacher in Shishu Vihar Shikshan
Sanstha, a colleague of the deceased again on the point of salary. The
Tribunal after considering the evidence on record concluded that the
respondent – claimants had proved that the driver of the offending truck
was rash and negligent ; that had the deceased survived, he would have
been made permanent and would have drawn a higher salary ; that he then
would have been entitled to the benefit of the 6th Pay Commission and as
such would have drawn a salary of atleast Rs.40,000/- per month ; and
after applying the formula laid down in Sarla Verma's case, considering the
age of the deceased, the dependency and by applying the multiplier of '17',
awarded compensation of Rs.61,20,000/- to the respondent – claimants.
Both the third respondent and the appellant – company were held jointly
and severally liable to pay the compensation. Under the conventional
heads, the compensation awarded to the respondent – claimants was
Rs.25,000/- towards loss of love and affection and Rs.10,000/- for funeral
expenses/charges. Interest @9% per annum was awarded on the said
amount of Rs.61,55,000/- from the date of the application till its
realization. The apportionment ordered was as follows ; that the first and
second respondents were awarded Rs.30,77,500/- each, with an amount of
Rs.25,00,000/- to be kept in Fixed Deposits for one year.
7. The first respondent – claimant filed his affidavit of evidence in
lieu of examination-in-chief. He has stated that on 18th February, 2006 at
about 7.30 a.m., his son Deepak along with other residents of Village –
Kone, Taluka – Kalyan, District – Thane had gone to Amalner in a luxury
Bus bearing No.MH-02-G-988 to attend a marriage ceremony ; that after
attending the said ceremony they were returning back from Amalner to
Village Kone by the same luxury bus, when the accident took place. He
has further stated that at about 11.30 p.m., when the luxury bus which was
being driven at a moderate speed came near Maharana Hotel, at Aadgaon
Shivar, on Mumbai-Agra Road, all of a sudden one trailer truck bearing
No.RJ-01-G-6386 came from the opposite direction i.e from Nashik side
in an excessive speed and dashed the luxury bus from the driver's side.
Pursuant to the impact, five seats of the luxury bus from the driver's side
were completely damaged and the passengers occupying the said seats
were grievously injured. Deepak who was sitting on one of the seats
behind the driver's side, suffered grievous head injuries and other injuries.
The first respondent – claimant produced the Advance Death Certificate,
Inquest Panchanama and PM Report in support of the same, in order to
show that Deepak had succumbed to the accidental injuries, prior to his
admission in the Civil Hospital, Nashik.
8. According to the first respondent – claimant, the driver of the
offending vehicle was driving the said vehicle in a high and excessive
speed and in a rash and negligent manner, resulting in loss of control over
his vehicle and colliding with the luxury bus. He has further stated that he
is 50 years of age and his wife 48 years and that both of them were
completely dependent on their son. He has further stated that his son
Deepak was intelligent and had completed his B.Ed. Degree Course from
the University of Mumbai in March, 2000; that at the relevant time
Deepak was working as a teacher in Dadasaheb Dandekar Vidyalaya,
Dandekar Wadi, Taluka – Bhiwandi, District - Thane on temporary basis
and was drawing a salary of Rs.2,800/- per month and as such was
providing strong financial support to the family ; that as Deepak was
working with the said school from 2006 to 2013, he would have definitely
been made permanent and consequently his salary would have been
approximately Rs.20,000/- per month. He has stated that it was necessary
to consider the future prospects of the deceased while awarding
compensation to the respondent – claimants. According to the first
respondent – claimant, the deceased being the only earning member of the
family, was taking care and looking after the daily livelihood of the family
at the time of his death ; that he being the sole bread earner of the family,
irreparable economic loss was caused to them due to his untimely death.
He has stated that the deceased was a bachelor, was healthy and had a
robust personality and that they were the only legal heirs of the
deceased. Apart from compensation under the various heads, the
respondent – claimants also sought compensation under the conventional
heads i.e. for loss of love and affection etc. The first respondent in
support of the claim petition filed several documents i.e. copy of the FIR,
spot panchanama, inquest panchnama, advance death certificate, post
mortem report, certificate issued by the General Hospital, Nashik, A.A.
Form ; copy of the school leaving certificate of the deceased, copy of B.Ed
Degree Course, copy of the death certificate, copy of the original salary
certificate issued by the Dadasaheb Dandekar Vidyalaya, Dandekar Wadi,
Taluka – Bhiwandi, District – Thane and several other documents which
have been set out in para 9 of the claim petition.
9. It has come, in the cross examination of the first respondent –
claimant, that he was born in 1941; that his age in 2013 was 70 years and
that the current age of his wife was 65 years; and that his age and his
wife’s age mentioned in the affidavit are incorrect. He has admitted that
the deceased was his only son and that he had personally not witnessed
the accident. He has admitted that his son was in service in the School
from the year 2003 to 2006. He has denied the suggestion that he has
falsely stated that his son was working in the school as an Assistant
Teacher and was drawing a salary of Rs.2,800/- per month. He has denied
the suggestion that the accident occurred on account of his son's fault and
that he had put up a false claim.
10. The second witness examined by the respondent – claimants
was, Deepali Abhay Tambde, an Accountant in Shishu Vihar Shikshan
Sanstha. She has deposed in her evidence that she was working as an
Accountant in the said Shishu Vihar Shikshan Sanstha since June 1998,
which was being run and governed by Dadasaheb Dandekar Vidyalaya,
Dandekar Wadi, Taluka – Bhiwandi, District – Thane. She has stated that
she knew the deceased, as he was working as an Assistant Teacher in the
institute and that he had joined the service in 2001 and was working in the
institution upto 17th February, 2006 i.e. till his death in the accident. She
has stated that at the relevant time the deceased was drawing a salary of
Rs.2800/- per month and accordingly a salary certificate dated 18th March,
2011 was issued by the institution. She has admitted that the said salary
certificate issued and the contents thereof, were based on record and that
she had personally noted the same. The said witness was carrying the
salary register maintained by her of all the employees of the institution.
The salary register of June, August, 2005 to February, 2006 was shown to
the Court. She has stated that the name of the deceased appears in the said
salary register, which reflects the net salary drawn by the deceased as
Rs.2800/- per month. As the said witness had produced the original
register, the salary certificate was exhibited at Exhibit – 42. She has stated
that had the deceased been alive and had he been continued in service, he
would have been entitled for payment as per the 6th pay commission.
11. Deepali Tambde, in her cross examination, has admitted that the
deceased was working as an Assistant Teacher in a non-aided school.
However, she has denied the suggestion that there was no sanctioned post
of Assistant Teacher in the non-aided school. She has also denied the
suggestion that the deceased was appointed on temporary basis. She has
admitted that the document dated 18th March, 2013 certifies that deceased
– Deepak was working on a temporary basis ; that she has not placed on
record the salary drawn by the deceased from June, 2001 to 2004 ; and
that she had not placed on record any document to show that the post of
the deceased was a sanctioned post. She has stated that at the time of
recording of her evidence the salary of an Assistant Teacher in the school
was Rs.8,000/- per month whereas in the year 2008 it was Rs.6,000/- per
month.
12. The third witness examined by the respondent – claimants was
Sudhir Gunvantrao Deshmukh, Secretary of Shishu Vihar Educational
Trust. He has deposed that he has been working as a Secretary of the said
Trust since 1990 ; that he was knowing the deceased – Deepak as he was
working in the institution as an Assistant Teacher ; that Deepak had joined
their institution on 1st June, 2002 and had worked for 11 months upto April
2003 ; thereafter he was continued on the same post by renewing the
contract on the same post ; that Exhibit – 42 is the salary certificate of the
deceased – Deepak ; that the contents of the said certificate were correct ;
he has identified his signature on the said certificate. He has further stated
that the strength of the students in that institution is more and as such there
was more workload ; however for want of sanction and approval of the
Government for the post, persons like the deceased – Deepak were
continued in the service by regularly renewing their contract. He has
specifically deposed that had the deceased been alive and had the
Government sanctioned the post, considering the experience and seniority
of the deceased, the institution would have preferred him. He has also
categorically stated that the permanent teachers of their institution are
given the benefit of the 6th pay commission and an Assistant Teacher who
is permanent is paid a salary of Rs.40,000/- per month. The said witness in
his cross examination has admitted that the deceased – Deepak was not
working in a post which was sanctioned and no proposal was forwarded by
the institution for sanctioning the said post; however proposals were sent
for increasing the division in view of the increase in the strength of the
students. He has admitted that when the deceased was appointed he was
purely on temporary basis ; that the certificate which is at Exhibit – 42
(salary certificate) and the contents therein were correct and that the same
was issued by him ; that the Society had not passed any Resolution
authorizing him to appear on behalf of the Society and that he was
appearing in response to the summons issued by the Court. Lastly, he has
denied the suggestion that he was falsely deposing only with the intention
of seeing that the claimant receives more benefit.
13. Suresh G. Kulkarni, an Assistant Teacher in Shishu Vihar
Shikshan Sanstha at Bhiwandi was examined as the last witness by the
respondent – claimant. He has deposed that he was working as an Assistant
Teacher in the said Sanstha at Bhiwandi since 1997 ; that in 1997 he also
was serving as an Assistant Teacher and that his appointment was on
temporary basis. He has further deposed that he became permanent in the
year 1999. He has stated that when he joined his salary was Rs.1,700/- per
month and that today he was working as an Assistant Teacher after being
made permanent. He has further deposed that at the time of recording of
his evidence, he was drawing a salary of Rs.50,400/- per month and that
he was receiving the benefit of the 6th Pay Commission. He has stated
that he knew Deepak, as he too was an Assistant Teacher and that both of
them were teaching English. He has stated that Deepak was working upto
2006, till his death in the accident. He has stated that till his death
was in continuous service and had he been alive, he too would have been
made permanent and would have received the benefit of the 6th pay
commission. Nothing substantive has been brought in the cross
examination of the said witness. He has admitted that the contents of
Exhibit – 47 are correct. He has admitted that there was a practice of
giving a break in the month of May and again issuing service order in June
and that the same amounts to break in service.
14. We have perused the impugned award, the evidence and the
documents on record with the assistance of the learned counsel for the
parties. We have also given our anxious consideration to the submissions
advanced by the learned counsel for the parties. With regard to the
submission of the learned counsel for the appellant – company that
negligence has not been proved, we are of the opinion that there is no merit
in the said submission. Although the first respondent – claimant is not an
eye witness to the accident, he has produced on record all the relevant
documents to show that the deceased sustained fatal injuries in the said
accident. There is nothing substantial brought on record in the cross
examination of the first respondent, on the point of negligence except
making a suggestion that he was falsely stating that the driver was driving
the offending vehicle in excessive speed and in a rash and negligent
manner, which was denied by him. It is pertinent to note, that the appellant
– company has neither examined the driver of the offending vehicle nor has
brought any evidence/material on record, to prove to the contrary. Adverse
inference can be drawn for the failure to examine the driver. Hence,
there is no merit in the contention raised by the learned counsel for the
appellant, that the respondent – claimants have not proved negligence by
the driver of the offending vehicle.
15. The second submission of the learned counsel for the appellant
is that the Tribunal has erred in concluding that the income of the deceased
was Rs.40,000/- per month, when infact, the last salary certificate of the
deceased reflected his salary as Rs.2,800/- per month. He submitted that
the deceased was admittedly working on a temporary basis in a non-aided
school and that there were no prospects of his permanency, in the light of
the evidence that has come on record. We may note here, that the salary
certificate (Exhibit – 42) dated 18th March, 2013 shows that the deceased
was working as an Assistant Teacher on a temporary basis in the secondary
section with Shishu Vihar Shikshan Sanstha. In the said certificate his
service tenure was stated to be from June 2001 to February, 2006. It is
further stated in the said certificate that as per the school record, Deepak
met with an accident on 20th February, 2006 and that at the relevant time
i.e. February,2006 the deceased was drawing a salary of Rs.2,800/- per
month. The said salary certificate has been issued by the Secretary of the
Shishu Vihar Educational Trust. There is another certificate which is on
record at Exhibit – 47 dated 20th March, 2006 which is issued by the Head
Master of Dadasaheb Dandekar Vidyalaya, (Secondary Section),
Dandekar Wadi, Taluka – Bhiwandi, District - Thane. It certifies that the
deceased was working in the institution as an Assistant teacher on
temporary basis from 13th July, 2003 till 30th April, 2005. It is further
certified that he was appointed again on 13th June, 2005 on the temporary
post and that he was drawing a salary of Rs.2,800/- per month. The
evidence of the first respondent – claimant shows that the deceased had
completed his B.Ed. from the University of Mumbai in the year 2000.
According to the first respondent – claimant, the deceased was working as
an Assistant Teacher in Dadasaheb Dandekar Vidyalaya, Dandekar Wadi,
Taluka – Bhiwandi, District - Thane on temporary basis, at the relevant
time and was drawing a salary of Rs.2,800/- per month. According to the
said witness, had the deceased been made permanent in the said institution,
his salary would have been approximately Rs.20,000/- or more per month.
A perusal of the evidence of the said witness shows that the suggestion
made to the said witness, that his son was not serving as an Assistant
Teacher at the relevant time and was not drawing a salary of Rs.2,800/- per
month, has been categorically denied by him. A perusal of the evidence of
the other witnesses also reveals that the deceased was working as an
Assistant Teacher in the institution at the relevant time ; that he had joined
the service in 2001 and was working in the said institution till his death in
February, 2006, in an accident. It has come in the evidence of all the
witnesses, that the deceased was drawing a salary of Rs.2,800/- per month.
The witnesses have also proved the contents of both the documents at
Exhibits – 42 and 47 which are the Salary Certificate and Service
Certificate respectively. Thus, from the evidence that has come on record,
we can safely conclude that the deceased – Deepak was working in the said
institution as an Assistant Teacher on temporary basis from 2001 to 2006
i.e. till his unfortunate death in the accident.
16. Considering the aforesaid evidence and the conclusion arrived at
we proceed to consider whether there was a likelihood of the deceased
being made permanent in the said institution and consequently being
entitled to a higher salary. Before we deal with the said submission, it
would be necessary to take note of a few provisions of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
1977 (hereinafter referred to as ‘the MEPS Act’) . The MEPS Act regulates
the recruitment and conditions of service of employees in certain private
schools with a view to provide such employees security and stability of
service, so as to enable them to discharge their duties towards the pupils
and their guardians in particular, and the institution and the society in
general effectively and efficiently.
17. Section 2(20) of the MEPS Act defines the term ‘private school’
to mean a recognised school established or administered by a Management,
other than the Government or a local authority. ** As noted earlier the
MEPS Act, provides for regulating recruitment and conditions of service
of employees in certain private schools. Thus, the expression ‘private
school’ would cover schools other than the primary schools established or
administered by a local authority. Section 3 deals with the Application of
the said MEPS Act. It reads thus :-
“3. Application of Act : (1) The provisions of this act shall
apply to all private schools in the State of Maharashtra,
whether receiving any grant-in-aid from the State
Government or not.
(2) …. …. …... …... ….
18. Section 4 deals with the ‘Terms and Conditions of Service of
employees of private schools’ :-
4. Terms and Conditions of Service of employees of private
schools :-
(1) Subject to the provisions of this section, the State
Government may make rules providing for the minimum
qualifications for recruitment (including its procedure),
duties, pay, allowances, post-retirement and other
benefits, and other conditions of service of employees of
private schools and for reservation of adequate number of
posts for members of the backward classes :
Provided that, neither the pay nor the rights in respect of
leave of absence, age of retirement and post-retirement
benefits and other monetary benefits of an employee in
the employment of an existing private school on the
appointed date shall be varied to the disadvantage of such
employee by any such rules.
2. …. …. …. ….
It is thus evident that the Rule making power is conferred on the
State Government and the State Government has the power to make rules,
where the pay-sales and allowances etc., of any private school are less
favourable than those prescribed by the Rules. It empowers the Director of
Education to direct the Management of such a school in writing to bring
existing Rules in conformity with the level given in the Rules, 1981.
Failure to comply with the directives given by the Director can result in
withdrawal of the recognition of the defaulting school. A perusal of
Section 4 reveals, that every employee of a private school shall be
governed by such code of conduct that may be prescribed ; that if the scales
of pay and allowances, post-retirement and other benefits of the employees
of any private school are less favourable than those provided by the rules
made under sub-section (1), the Director shall direct in writing the
Management of such school to bring the same upto the level provided by
the said rules, within such period or extended period as may be specified
by him. Thus, the teachers in the recognised un-aided schools are entitled
to receive the salary as per the pay scale prescribed under the Rules.
19. We have seen from the evidence that has come on record, in
particular, the evidence of PW-3 Sudhir Deshmukh, Secretary of Shishu
Vihar Educational Trust, that the deceased was working in the said
institution from 1
st June, 2002 to 2006 with notional breaks as an Assistant
Teacher. The said witness has categorically stated that the strength of the
students in the institution had increased and so had the work load, however,
for want of sanction and approval of the Government for the post, persons
like deceased – Deepak were continued in service regularly on contract
basis. He has further stated that had the deceased been alive and had the
Government sanctioned the post considering the experience and seniority
of the deceased, they would have preferred to appoint him as a permanent
teacher. He has also categorically stated that a permanent teacher of their
institution receives the benefit of the 6th Pay Commission and that for the
permanent post of an Assistant Teacher, the institute pays a salary to the
tune of Rs.40,000/- per month. It is pertinent to note that in the cross
examination of the said witness, there is no cross examination or any
suggestion on the aforesaid material that has come on record. The only
cross examination/suggestion on the point is that the deceased – Deepak
was not working on a post which was sanctioned ; that no proposal was
forwarded by the institution for sanctioning the post of Deepak and that
the deceased was appointed on a purely temporary basis. There is no
dispute, that Deepak was appointed to the post of an Assistant Teacher on
temporary basis. The evidence of Sudhir Deshmukh, that has come on
record, with regard to the salary of an Assistant Teacher, who was made
permanent, being Rs.40,000/- per month ; has gone unchallenged. The
evidence of the said witness, that the teachers who were made permanent
were getting the benefit of the 6th Pay Commission ; that had the deceased
continued in service and had the Government sanctioned the post,
considering the deceased's experience and seniority he would have been
made permanent has literally gone unchallenged. As far as the evidence of
Suresh Kulkarni, a colleague of the deceased is concerned, the said
witness has categorically stated that he was made permanent as an
Assistant Teacher in 1999 and was presently drawing a salary of
Rs.50,400/- per month and that he was getting the benefit of the 6th pay
commission. The said witness has stated that had the deceased been alive,
he too would have been made permanent and would have received the
benefit of the 6th pay commission.
20. Admittedly, the deceased was working as an Assistant Teacher
in a non-aided school on a temporary post since 2001. It is not seriously
disputed that the last drawn actual salary of the deceased was Rs.2,800/-
per month (in January, 2006) as is reflected in the salary certificate.
Considering the said fact and the evidence of Mr.Sudhir G.Deshmukh
(PW.3) and Mr.Suresh Kulkarni (PW.4) that has come on record, it is
evident that had the deceased continued in service, he would have been
made permanent and would have also been entitled to the benefit of the 6th
pay commission i.e he would be entitled to a salary of Rs.40,000/- per
month. Section 5 of the MEPS Act casts certain obligation on the
Management of the private schools. Under sub-section 1 of section 5, it is
the responsibility of the Management to fill in, as soon as possible, in the
manner prescribed, every permanent vacancy in a private school by
appointing a person duly qualified to fill in such vacancy. Sub-section 2 of
the said section 5 stipulates that every person appointed to fill in a
permanent vacancy except [Assistant Teacher (Probationary)] shall be on
probation for a period of two year and subject to the provisions of subsections
(3) and (4), he shall, on completion of this probation period of two
years, be deemed to have been confirmed : provided that, every person
appointed as Assistant Teacher (Probationary) shall be on probation for a
period of three years. Subject to the provisions of sub-sections (3) and (4),
the Assistant Teacher (Probationary) shall on completion of the probation
period of three years be deemed to have been appointed and confirmed as a
permanent teacher.
21. Having regard to the statutory provisions of the MEPS Act in
particular section 5, it is clear that had the institution obtained sanction
from the Government in time and had the deceased been absorbed to such a
post within a short span of three years, he would be confirmed as a
permanent teacher. The deceased at the relevant time was 29 years of age,
having completed his B.Ed from the University of Mumbai. He was
serving as an Assistant Teacher, teaching English language on a
temporary/contract basis from the year 2001 to 2006 till his death, in the
said Institute. Considering the statutory provisions of the MEPS Act and
the evidence that has come on record, we are of the opinion that had the
deceased continued in service, he would have been regularized in his
employment as an Assistant Teacher and as such would have been entitled
to the benefit of the 6th pay commission. Thus, we do not find any error in
the finding of the learned Judge of the Tribunal that had the deceased been
alive, he would have been regularized on the post sanctioned and as such
would have drawn a salary of Rs.40,000/- per month.
22. The next question that falls for consideration is, whether the
Tribunal has committed an error in awarding 50% towards future
prospects. Though the deceased was working as an Assistant Teacher on
temporary/contract basis with an non-aided school, as set out in the earlier
paragraphs, having regard to the provisions of the MEPS Act and the
evidence that has come on record and having regard to the decision of the
Apex Court in Sarla Verma (Smt) and Others v/s Delhi Transport
Corporation and Another1
, the deceased would be entitled to future
prospects which would be 50%. The relevant paras read thus ; -
“20. Generally the actual income of the deceased less income tax
should be the starting point for calculating the compensation. The
question is whether actual income at the time of death should be
taken as the income or whether any addition should be made by
taking note of future prospects.
21. In Susamma Thomas this Court held that the future prospects of
advancement in life and career should also be sounded in terms
of money to augment the multiplicand (annual contribution to the
dependants); and that where the deceased had a stable job, the
court can take note of the prospects of the future and it will be
unreasonable to estimate the loss of dependency on the actual
income of the deceased at the time of death. In that case, the
salary of the deceased, aged 39 years at the time of death, was Rs
1032 per month. Having regard to the evidence in regard to
future prospects, this Court was of the view that the higher
estimate of monthly income could be made at Rs 2000 as gross
income before deducting the personal living expenses.
22. The decision in Susamma Thomas was followed in Sarla Dixit v.
Balwant Yadav where the deceased was getting a gross salary of
Rs 1543 per month. Having regard to the future prospects of
promotions and increases, this Court assumed that by the time he
retired, his earning would have nearly doubled, say Rs 3000. This
Court took the average of the actual income at the time of death
and the projected income if he had lived a normal life period, and
determined the monthly income as Rs 2200 per month.
23. In Abati Bezbaruah v. Geological Survey of India, as against the
actual salary income of Rs 42,000 per annum (Rs 3500 per
month) at the time of the accident, this Court assumed the
1 (2009) 6 SCC 121
income as Rs 45,000 per annum, having regard to the future
prospects and career advancement of the deceased who was 40
years of age.
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 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.
23. The evidence of Suresh Ganesh Kulkarni (PW.4) clearly shows
that he was also working as an Assistant Teacher in the said institution and
on the post being sanctioned, he was made permanent and accordingly he
received the benefit of the 6th pay commission. We, therefore, do not find
any error in the conclusion arrived at by the learned Tribunal that the
deceased was entitled to 50% towards future prospects, considering the
evidence that has come on record.
24. The next question is which multiplier would be applicable in the
facts of the present case; whether the age of the respondent – claimants
ought to be considered or the age of the deceased. The Tribunal has applied
the multiplier of '17' on the basis of the age of the deceased. We find the
Tribunal has erred in applying the multiplier of '17' in the facts of the
present case.
25. We may note that, the Apex Court in the case of National
Insurance Company Limited v/s Shyam Singh and Others2 was required
to deal with a similar situation. It was a case where the aged parents were
the sole dependents of their young deceased son. It is in these
circumstances that the Apex Court was required to consider whether the
age of the deceased or the age of the dependent parents, would be
considered while applying the multiplier. The Apex Court after
considering the imponderable factors in the determination of
compensation and following Vijay Shankar Shinde and Others v/s State
of Maharashtra3
held that the multiplier that would apply, would be one,
after taking into consideration the average age of the parents of the
deceased. Paras 9 and 10 reads thus:-
2 (2011) 7 SCC 65
3 (2008) 2 SCC 670
“9. This Court in Vijay Shankar Shinde and Others v/s State of
Maharashtra, after referring to the earlier judgments of this
Court, in detail, dealt with the law with regard to determination
of the multiplier in a similar situation as in the present case. The
said findings of this Court are as under:
"6. We have given anxious consideration to these
contentions and are of the opinion that the same are
devoid of any merits. Considering the law laid down in
New India Assurance Co. Ltd. v. Charlie, it is clear that the
choice of multiplier is determined by the age of the
deceased or claimants whichever is higher. Admittedly,
the age of the father was 55 years. The question of
mother's age never cropped up because that was not the
contention raised even before the Trial Court or before
us. Taking the age to be 55 years, in our opinion, the
courts below have not committed any illegality in
applying the multiplier of 8 since the father was running
56th year of his life.
7. The learned Counsel relying on the Second Schedule of
the Act contended that the deceased being about 16 or
17 years of age, a multiplier of 16 or 17 should have
been granted. It is undoubtedly true that Section 163A was
brought on the Statute book to shorten the period of
litigation. The burden to prove the negligence or 6 fault
on the part of driver and other allied burdens u/s 140 or
166 were really cumbersome and time consuming.
Therefore as a part of social justice, a system was
introduced via Section 163A wherein such burden was
avoided and thereby a speedy remedy was provided. The
relief u/s 163-A has been held not to be additional but
alternate. The Schedule provided has been threadbare
discussed in various pronouncements including Deepal
Girishbhai Soni v. United India Insurance Co. Ltd.AIR 2004
SC 2107. The Second Schedule is to be used not only
referring to age of victim but also other factors relevant
therefore. Complicated questions of facts and law
arising in accident cases cannot be answered all times
by relying on mathematical equations. In fact in U.P.
State Road Transport Corporation v. Trilok Chandra (1996) 4
SCC 362, Ahmedi, J. (As the Chief Justice then was)
has pointed out the shortcomings in the said Schedule
and has held that the Schedule can only be used as a
guide. It was also held that the selection of multiplier
cannot in all cases be solely dependent on the age of
the deceased. If a young man is killed in the accident
leaving behind aged parents who may not survive
long enough to match with a high multiplier
provided by the Second Schedule, then the Court
has to offset such high multiplier and balance the
same with the short life expectancy of the claimants.
That precisely has happened in this case. Age of the
parents was held as a relevant factor in case of
minor's death in recent decision in Oriental
Insurance Co. Ltd. v. Syed Ibrahim and Ors. AIR
2008 SC 103. In our considered opinion, the Courts
below rightly struck the said balance."
10. In our view, the dictum laid down in Ramesh Singh case is
applicable to the present case on all fours. Accordingly, we hold
that the Tribunal had rightfully applied the multiplier of 8 by
taking the average of the parents of the deceased who were 55
and 56 years”.
26. It is thus evident from the aforesaid judgments, that if the
deceased is a young man, who dies in an accident, leaving behind his aged
parents, who may not survive long enough, the Court will have to offset the
high multiplier provided in the second schedule, and balance the same with
the short life expectancy of the claimants. In short, the selection of
multiplier cannot in all cases be solely dependent on the age of the
deceased. In the present case, the age of the deceased was 29 years at the
time of the accident. The age of the dependent parents i.e. father and
mother was stated to be 45 and 43 years respectively in the claim petition,
whereas, in the cross-examination of the first respondent – claimant, it has
come that the first respondent was born in 1941 and that his age and the
age of his wife mentioned in the affidavit are incorrect; that his age in 2013
was 70 years and the age of his wife was 65 years. Although the respondent
– claimants have, in the claim petition filed in 2008 given their age as 45
and 43 years respectively, we are unable to accept the same. Admittedly,
the age of the deceased was 29 years in 2006. If we accept the age of the
respondent – claimants as set out in claim petition to be 45 and 43 years in
2008, then the age of the respondent – claimants would have to be 14 and
12 years respectively when the deceased was born. Hence, we cannot
accept the age of the respondent – claimants to be 45 and 43 in 2008. For
considering the correct age of the respondent – claimants, we will have to
consider the year of birth of the respondent – claimant as has come in the
cross-examination of the first respondent. In his cross-examination, the first
respondent has admitted that he was born in 1941 and his age to be 70
years in 2013 and that of his wife be 65 years. There appears to be an
inadvertent calculation error. If we take the year in which the first
respondent– claimant was born as 1941, then the age of the first respondent
– claimant ought to be 72 years in 2013 and 65 years in 2006 i.e. when the
deceased died. It also appears from the record, that an application was filed
by the first respondent seeking expeditious hearing of the present appeal.
To the said application, the first respondent has annexed his Adhar Card
which shows his date of birth as 1941. Judicial notice can certainly be
taken of the said fact. Thus, even according to the said document, the age
of the first respondent would be 65 years in 2006. It also appears from the
cross examination of the first respondent – claimant that the second
respondent – claimant was 65 years in 2013. As far as the age of the
second respondent – claimant is concerned the same has literally gone
unchallenged. Thus, the age of the second respondent will have to be taken
as 65 years in 2013 and as 58 years in 2006. Considering the aforesaid,
we may safely conclude that when the deceased died in 2006, the first
respondent was 65 years of age and the second respondent was 58 years.
We find that the Tribunal has clearly erred in applying the multiplier of 17,
by taking the age of the respondent – claimants to be 45 and 43 years in
2008. Taking the average age of both, as 61 years in 2006 for applying the
multiplicand, the compensation would now have to be calculated. Thus,
having regard to the aforesaid, and the law in that regard, we are of the
view that the multiplier of ‘7’ would apply in the facts of the present case,
having regard to the average age of the parents to be 61 years.
27. The next submission advanced by the learned counsel for
the appellant is that the deduction of 1/3rd was wrongly applied. He
submitted that the first respondent – claimant (father of the deceased) was
not dependent on the deceased. We do not find any merit in the said
submission, inasmuch as, there is nothing brought on record by the
appellant – company in the cross-examination of the first respondent –
claimant to show that he was working or earning at the relevant time. It is
also pertinent to note, that no suggestion has been made to the first
respondent – claimant in that regard. Infact, the evidence on record is to the
contrary. The first respondent – claimant has categorically deposed that the
deceased was the sole bread winner of the family ; that the deceased was
taking care and looking after the daily livelihood and that an irreparable
economic loss was caused to them due to his untimely death. Admittedly
the deceased was a Bachelor and having regard to the law laid down in this
regard, 50% would have to be deducted towards the personal expenses of
the deceased, and the respondent – claimants would be entitled to the
balance 50%. Under these circumstances, the learned Tribunal has erred in
applying the 1/3rd formula in computing the compensation.
28. Having regard to all the aforesaid facts and the judicial
pronouncements in that regard what is the just compensation that the
respondent –claimants would then be entitled to ? Admittedly, the
deceased was aged 29 years and the average age of the first and second
respondent – claimants as discussed in the foregoing paras would have to
be taken as 61 years in 2006. As noted earlier, the deceased had the
prospects of being made permanent ; and as such would have been entitled
to a salary of Rs.40,000/- per month and would have been entitled to the
benefit of the 6th pay commission. Considering the age of the deceased
which was below 30 years of age, at the time of the accident and keeping
in mind the formula in Sarla Verma’s case, the deceased would be entitled
to 50% rise in the income towards future prospects. As the deceased was a
bachelor, 50% of the said income would have to be deducted towards his
personal expenses. Thus, the income of the deceased will have to be
calculated at the rate of Rs.40,000/- per month X 12 = Rs.4,80,000/-. After
adding 50% to the income towards future prospects, the income arrived at
would be Rs.7,20,000/-. After deducting 50% towards personal expenses as
the deceased was a bachelor, the income would be Rs.3,60,000/-. Taking
into consideration, the average age of the parents of the deceased i.e. father
and mother as 61 years, the multiplier of ‘7’ would apply. Considering
the multiplicand and the multiplier that would be applicable i.e. 3,60,000 X
7, the amount arrived at would be Rs.25,20,000/-. Under the conventional
heads, the compensation awarded to the respondent – claimants by the
Tribunal was Rs.25,000/- towards loss of love and affection and
Rs.10,000/- for funeral expenses/charges. However, we are of the opinion,
that the said amount awarded under the conventional heads will have to be
enhanced from Rs.25,000/- to Rs. 50,000/- each to the respondent –
claimants, towards loss of love and affection and from Rs.10,000/- to
Rs.25,000/- towards funeral expenses in conformity of the decision of the
Apex Court, in the case of Rajesh and Others v/s Rajbir Singh and
Others4
. Thus, the amount of compensation that the respondent – claimants
would be entitled to is Rs.26,45,000/-.
29. Lastly, the learned counsel for the appellant has contended that
the interest awarded by the Tribunal at the rate of 9% per annum on the
additional income of future prospects from the date of the application till
its realization was unjust. We may note that as far as the interest rate is
concerned, the Apex Court in the case of Puttamma and Others v/s
K.L.Narayana Reddy and Another5
, after elaborate analysis to
determine appropriate rate of interest in Motor Accident claims, held that -
“In view of the aforesaid provisions of the Act, 1988 (Section
171) and the observation0s of this Court, as noticed above, we
keep this question open for Tribunals and Courts to decide the
4 (2013) 9 SCC 54
5 (2013) 15 SCC 45
rate of interest after taking into consideration the rate of
interest allowed by this Court in similar cases and other factors
such as inflation, change in economy, policy adopted by the
Reserve Bank of India from time to time and the period since
when the case is pending”. (emphasis supplied)
30. Similarly, in Abati Bezbaruah v. Deputy Director General,
Geological Survey of India & Another6
the Apex Court, taking note of the
varying interest rates being awarded by Tribunals and High Courts, held
that the rate of the interest must be just and reasonable depending on the
facts and circumstances of the case and should be decided after taking into
consideration the relevant factors.
31. The tribunal had rightly awarded rate of interest at the rate of
9% per annum on the entire amount of compensation including on future
prospects. We do not find any infirmity in the same. Accordingly, we pass
the following order :-
ORDER
i) The appeal is partly allowed ;
ii) The respondent – claimants would be entitled to a compensation
6 (2003) 3 SCC 148
of Rs.26,45,000/- at the rate of 9% per annum from the date of
the Claim Petition till its realization;
iii) The apportionment shall be done in accordance with the
Judgment and Award dated 21st July, 2014, passed by the
learned District Judge – 5 and Additional Member, Motor
Accident Claims Tribunal, Thane at Thane.
iv) Writ of this judgment along with R&P shall be forwarded to the
Tribunal, within four weeks.
32. Civil Application nos.4357 of 2014 and 1251 of 2015 do not
survive and the same are disposed of.
33. All concerned to act on the authenticated copy of this order.
(REVATI MOHITE DERE,J.) (A.S. OKA,J.)
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