Gujarat High Court
Pinkyben Wd/O Pravinkumar Jesangbhai ... vs Somaji Ranchhodji Thakor on 24 July, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2738/2022 ORDER DATED: 24/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2738 of 2022
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PINKYBEN WD/O PRAVINKUMAR JESANGBHAI CHAUDHARY
Versus
SOMAJI RANCHHODJI THAKOR
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Appearance:
MR DK CHAUDHARI(5361) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/07/2023
ORAL ORDER
1. The present appellants have challenged the judgment and award dated 14.05.2018 passed by 4th Motor Accident Claims Tribunal (Aux.), Mahesana at Visnagar in MACP No.674 of 2006, which came to be renumbered as MACP No.356 of 2012.
2. The challenge is given to the judgment mainly on the ground that compensation so granted is not just and consistent with the Page 1 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined material/evidence produced on record, to show that deceased was serving as an Assistant Teacher in Vinay Vidalaya Mandir, Secondary School, Khoda, on fixed salary of Rs.4,000/- per month for the first five years, and, had he been continued in the post, he would be entitled for the benefit of 6th Pay Commission and his income would Rs.40,000/- per month; and further ground has been raised that consortium loss has not been granted to all the claimants.
3. The facts of the case, as has been noted by the Tribunal giving rise to the claim petition are that, on 10.03.2006 at about 6:30 a.m., deceased travelling on his motorcycle was heading towards his place of service from village Gunja to Khoda, at that time, a Jeep bearing Registration No.GJ-2-R-8168 came in a full speed, in a rash and negligent manner endangering human life, dashed with the motorcycle from behind, Page 2 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined therefore, motorcycle collided with one Truck bearing No.GJ-15-X-1547, and owing to the vehicular accident, Pravinkumar died on the way before reaching the hospital.
4. Mr. D.K. Chaudhari, learned advocate for the claimants having placed reliance on various circulars of the Education Department of Government of Gujarat submitted that the probation period for the Assistant Teacher, secondary school, is of two years and the appointment is of five years on a fixed pay of Rs.4,000/-, and on satisfactory completion of the period of five years, the teacher would be placed on a regular pay-scale, and for that purpose, a witness namely Patel Jayantibhai Virahai, Principal of Vinay Vidayamandir, Khoda, Taluka - Kankraj, was examined as witness no.1, at Exhibit-33, who had given the details about salary and the prospective salary as on Page 3 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined 31.12.2017, which had been assessed as Rs.45,859/-. Advocate Mr. Chaudhary stated that deceased was appointed on 11.03.2005, and served till 09.03.2006.
4.1 Relying on the judgment of Hon'ble Supreme Court in the case of Ramrao Lala Borse Vs. New India Assurance Company Limited, reported in 2018 (3) SCC 204, Advocate Mr. Chaudhari submitted that it was a case of an Assistant Teacher in Dadasaheb Dandekar Vidyalaya, a non- aided private school, where the deceased met with an accident on 09.02.2006. Advocate Mr. Chaudhari stated that the deceased Dipak therein was on contract basis, for want of sanction from the government to the post, and the evidence of the witness to examine in the matter, had deposed that the trust would have appointed him as a permanent teacher in which event his salary, according to the scale of 6th Pay Commission, would have been Rs.40,000/- per month, and the Page 4 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined Tribunal had granted the award of Rs.61,65,000/-, and the judgment of the Tribunal was under
challenge before the High Court.
4.2 The High Court of Judicature at Bombay, where the Division Bench in an appeal, by the New India Assurance Company Ltd. reduced the compensation amount to Rs.26,45,000/-. The claimants aggrieved by the judgment of the Division Bench, had approached the Hon'ble Supreme Court, and the Hon'ble Supreme Court after considering the case of the claimants enhanced the compensation, and in total, granted Rs.61,90,000/- appreciating the case of the claimants, that it was on the premise, the deceased was likely to be made permanent in which event he would be entitled to a higher salary considering that the government were to sanction the post, and considering the seniority and experience of the deceased, the trust would have appointed him as a permanent teacher in which Page 5 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined event his salary according to the scale of 6 th Pay Commission, would be Rs.40,000/- per month.
4.3 Advocate Mr. Chaudhari submitted that the Division Bench of the Bombay High Court had concluded the salary of Rs.40,000/- per month and had granted the compensation accordingly;
however, the error, as was observed, was the adoption of the multiplier of 7 by the High Court taking the average age of the parents; while the Hon'ble Supreme Court having placed on the conclusion, arrived at by the High Court that if the deceased were to be alive, he would be regularized and would have drawn a salary of Rs.40,000/- per month, and with an addition of 50% prospective rise, the Hon'ble Supreme Court applied the multiplier of 17, and, thus the compensation under the heads were computed as Rs.61,90,000/-.
5. Advocate Mr. Palak H.Thakkar, for the Page 6 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined Insurance Company stated that in the case of Ramrao Lala Borse (Supra), the evidence was on record that the deceased was to be made permanent, and, therefore would have been entitled for a pay-scale as per 6th Pay Commission. While, in the present case, Advocate Mr.Thakkar stated that, the witness - Patel Jayantibhai Virahai, the principal of the school, had not seen the deceased working, and thus submitted that, the evidence does not suggest that the deceased would have been made permanent. Mr. Thakkar further stated that had his work not found satisfactory and there would have been any violation of the rules, then, after the proper procedure, he would have been removed from the job, and, thus, stated that no benefit of 7th Pay Commission would have been accorded. 5.1 Advocate Mr. Thakkar, thus, states that probability is required to be considered, as probation may not have been considered as Page 7 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined satisfactorily undergone, and the deceased may not have been made permanent in his job.
6. While countering the said argument Advocate Mr. Chaudhari submitted that nothing has been brought on record by way of any cross- examination of any adverse act of the deceased or of any adverse remarks passed against the deceased or any disciplinary memo been issued to the deceased. Advocate Mr. Chaudhari, thus, stated that the Principal of the school examined on record at Exh.33, though was put with suggestion of the rule, in case, the work is not found satisfactory and if there is any breach of rules, then by initiating proper procedure, the deceased could have been removed from the job, to which the principal affirmed, except that, there was no further question put to the witness, as much as to have asked whether anything was found against the deceased to consider his term of service as not satisfactory.
Page 8 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023
NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined 6.1 Advocate Mr. Thakkar has relied upon Oriental Insurance Company Limited Vs. Jashuben, reported in 2008 (4) SCC 162, to submit that the general principle to be applied would be to consider the income of the victim at the accident as basis for assessment for compensation and not the income at the time of retirement. 6.2 Against that, Advocate Mr. Chaudhari placed reliance on S.Vasanthi Vs. Adhiparasakthi Engg. College, reported in 2022 AIR (SC) 0- 5057, to contend that had the deceased not have died, he surely would have drawn salary equivalent to that of his classmates or at least an amount near the said amount.
7. Accepting the principle of standardization and appreciating the concept of prospective future rise in income with the Page 9 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined benefit of increments and pay revision, the Hon'ble Apex Court in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., reported in (2017) 16 SCC 680, has held as under:
When we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives Page 10 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other.
One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance.
The purchasing capacity of a
salaried person on permanent job
when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner Page 11 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined his resources and raise his charges/ fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self- employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, Page 12 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable Page 13 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter.
Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.
While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
In case the deceased was self-
employed or on a fixed salary, an Page 14 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
8. The evidence of the Principal of Vinay Vidalaya Mandir, Secondary School, Khoda reflects that on 11.03.2005, the deceased had joined the school on fixed salary of Rs.4,000/-, and the witness had stated that as per government rules and regulation on 11.03.2010, he was entitled for full salary, and as per their school records, had the deceased been alive and would have been performing the job as a teacher on 31.12.2023, he would have earned the salary of Rs.45,859/-. The witness had brought the school certificate on the letter pad, which was placed on record at Exh.34. Page 15 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023
NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined In the cross-examination, the principal stated that he was not knowing the deceased personally and the details, which he had given were as per the record. The deceased had not served in his presence. He affirmed that the deceased - Pravinkumar, as per the Gujarat Government Rules, was on five years fixed pay of Rs.4,000/- as Vidhya Sahayak. A suggestion was put to the witness, that it could not be necessarily said, that he would have been made permanent, to that suggestion, the witness denied. The Rules concerning non-satisfactory performance and breach of condition would have subjected deceased to a procedure for termination of job had been referred to, but there was no question to the witness about any improper conduct of the deceased during the term of his service, nor was any evidence brought on record of any disciplinary action initiated against him. The law does not appreciate any assumption of Page 16 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined probabilities, and, to prove that he would have been terminated from his job, requires cogent evidence on record.
9. The deceased was on a sanctioned post. Considering the circulars in relation to the job of the deceased and the evidence on record, this Court is of the opinion that had the deceased continued to have been in service, then he would have been regularized in his job and would have received the benefit of 7th Pay Commission, and according to the documentary evidence at Exh.34 supported by oral evidence of the School Principal, on 01.01.2016, after having received the benefit of 7th Pay Commission, would receive Rs.42,967/-. On 31.12.2017, would have received Rs.45,859/- as salary, is the evidence of the Principal.
9.1 The deposition was recorded on 20.02.2018, and the document, Exh.34, was Page 17 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined executed on 25.01.2018, thus, accordingly as per the school record on 31.12.2017, the total salary of the deceased, as would have been assessed, has been considered as Rs.45,859/-. 9.2 At the time of accident, the deceased was aged about 26 years, and was on fixed salary, hence, being considered him in permanent job, 50% prospective rise in income has to be considered, as per the judgment of National Insurance Company Ltd. v. Pranay Sethi and Ors. (supra), which would be considered as Rs.64,450.50 [rounded off Rs.64,451/-] per month.
9.3 Here, in this case, the dependents are four in number, after deducting 1/4th as personal expense as Rs.16,112/-, the monthly future loss would come to Rs.48,339/- (64,451 - 16,112). 9.4 Considering the age of the claimant as 26 years, as per Sarla Verma and Others vs. Delhi Page 18 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined Transport Corporation and Another, reported in (2017) 16 SCC 680, the multiplier applicable would be 17 to the annual income; hence, the dependency loss would come to Rs.98,61,156/- (48,339 x 12 x 17).
9.5 Under the conventional heads, Tribunal has granted Rs.15,000/- towards the loss of estate and Rs.15,000/- for funeral expenses, which is just and proper.
10. While explaining the compendious term 'consortium' in the case of Magma General Insurance Company Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in (2018) SCC 130 [2018 ACJ 2782], the Hon'ble Apex Court by referring the judgment of Constitution Bench in the case of National Insurance Co.Ltd Vs. Pranay Sethi, held as under:
"A Constitution Bench of this Court in Pranay Sethi (supra) dealt Page 19 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium.
In legal parlance, "consortium"
is a compendious term which
encompasses 'spousal consortium'
'parental consortium' and 'filial
consortium'.
The right to consortium would
include the company, care, help,
comfort, guidance, solace and
affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the premautre death of a parent, for loss of Page 20 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined "parental aid, protection, affection, society, discipline, guidance and training".
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded Page 21 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a
beneficial legislation aimed at
providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."
10.1 The dependents are widow, one minor and aged parents, thus, individually, as per Magma General Insurance Company Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in (2018) SCC 130 [2018 ACJ 2782], the consortium amount for each person would be Rs.40,000/-; hence, under the Page 22 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined head of loss of consortium, the amount would be Rs.1,60,000/- (40,000 x 4).
11. Thus, in total, the computation would be as under:
Sr. Particulars Amount
No.
1 Loss of Dependency Rs. 98,61,156/-
2 Loss of Consortium Rs. 1,60,000/-
3 Funeral Expense Rs. 15,000/-
4 Loss of Estate Rs. 15,000/-
Total Rs. 1,00,51,156/-
12. The Tribunal has awarded Rs.9,88,000/-. Thus, the enhanced amount of Rs.90,63,156/- [1,00,51,156 - 9,88,000] at the rate of 7.5% would be paid to the claimants jointly and severally within a period of fifteen weeks.
13. In view of the above, the appeal is allowed in the above terms. The Tribunal concerned is directed to modify the award Page 23 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023 NEUTRAL CITATION C/FA/2738/2022 ORDER DATED: 24/07/2023 undefined accordingly. Record and Proceedings be sent back to the concerned Court forthwith.
(GITA GOPI,J) Pankaj Page 24 of 24 Downloaded on : Sat Sep 16 22:38:53 IST 2023