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S.B. Sinha & V.S. Sirpurkar
Oriental Insurance Company Ltd. - PETITIONER
Versus
Jashuben & Ors. - RESPONDENT
Appeal (civil) 1272 of 2008
(Arising out of SLP (C) No.7304 of 2007)
Decided On: 14/02/2008
Motor Vehicle Act – Rash and negligent driving – Appellant is before us aggrieved by and dissatisfied with a judgment and order passed by the Division Bench of the High Court of Gujarat at Ahmedabad in First Appeal dismissing the appeal preferred by him – Claimants-Respondents herein are heirs and legal representatives of Davjibhai Kushalbhai Rathod. He, while travelling in a mini luxury bus as a passenger from Surat to Mehsana, met with a road accident which took place – Accident occurred due to rash and negligent driving on the part of the driver of the said mini bus is not question – Held, If the dictionary meaning of the word income is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. – Court is of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and, thus, the approach of the Tribunal and the High Court must be held to be incorrect. – It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002. – Loss of dependency, should be calculated on the basis as if the basic pay of the deceased been Rs. 3295/- X 2 = Rs. 6,590/-, thereto should be added 18.5% dearness allowance which comes to Rs.1219/-, child education allowance for two children @ Rs.240/- X 2 = Rs.480 and child bus fair Rs.160 X 2 = Rs.320/- should have been added which comes to Rs.8,609/-. – Appeal Allowed In Part
J U D G M E N T
S.B. Sinha, J.
Leave granted.
1. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated 22.11.2006 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in First Appeal No.4586 of 2006 dismissing the appeal preferred by him.
2. Claimants-Respondents herein are heirs and legal representatives of Davjibhai Kushalbhai Rathod. He, while travelling in a mini luxury bus as a passenger from Surat to Mehsana, met with a road accident which took place on 23.6.1994. The accident occurred due to rash and negligent driving on the part of the driver of the said mini bus is not question.
3. The deceased, Devjibhai, at that time, was aged about 35 years. He was working as an Assistant in the Oil and Natural Gas Commission. A sum of Rs.12,00,000/- was initially claimed by way of compensation which was subsequently raised to 25,00,000/-. The Tribunal, as per the certificate issued by the Senior Personnel and Administrative Officer, ONGC, noticed that the deceased had been receiving the following salaries and perks in the month of June 1994 :
1. Basic Pay Rs.3295/-
2. DA @ 18.5% Rs. 610/-
3. DSCA 20% of basic Rs. 650/-
4. HRA @ 18% of basic Pay Rs. 593/-
5. Productivity allowance Rs. 450/-
6. Washing allowance Rs. 45/-
7. Conveyance Allowance Rs. 375/-
8. Child Education Allowance
(for two children Rs. 240/-
9. Child Bus fare (for children) Rs. 160/-
______________________________________________
Total: Rs.6418/-
4. However, the Tribunal also took into consideration the salary which might have been payable to the said deceased as in August, 2002; had he continued in service which was stated to be as under :
1. Basic Pay Rs.10698.00
2. DA @ 35.5% Rs. 3892.00
3. DSCA 20% of basic
(maximum Rs.3100) Rs. 2193.00
4. HRA @ 22.5% of basic Pay Rs. 2406.00
5. Productivity allowance Rs. 500.00
6. Tribal allowance Rs. 200.00
7. Conveyance Allowance Rs. 740.00
8. Child Education Allowance
(for two children) Rs. 500.00
9. Child Bus fare (for children) Rs. 250.00
10. Canteen Sub. Rs. 164.80
____________________________________________________
Total : Rs.21803.80
5. The Tribunal, clubbed the income of the deceased which he might have got at the time of his retirement, i.e., Rs.3,295/- + Rs.17453/-, totaling a sum of Rs.20,748/- and divided the same by figure two to arrive the figure of at Rs.10,374/- per month. Adopting a multiplier of 16, the amount of compensation was determined at Rs.13,27,872/-. Besides the compensation amount, amount of gratuity, conventional amount and funeral expenses were calculated as follows : Rs.13,27,872/- towards dependency loss Rs. 10,000/- towards conventional amount Rs. 3,000/- towards funeral expenses Rs. 3,02,468/- towards gratuity Rs. 16,43,340/-.
6. Interest on the said amount sum at the rate of 12 per cent was also awarded.
7. On an appeal preferred by the appellant thereagainst, a Division Bench of the High Court opined that as a revision of pay had been effected by ONGC from 1.1.1997 and in August 2002, the employees in the same cadre would have received a sum of Rs.10,693/- per month with Dearness Allowance at the rate of 35.5% amounting to Rs.3892/- and other allowances. The net income of the deceased was found to be at least a sum of Rs.16,000/- so as to enable the Tribunal to come to the conclusion that the loss of dependency benefit would come to Rs.16,000/- from January 1997 onwards. The High Court stated :
In view of the above settled legal position, we do not find any difficulty in accepting the submission of Mr. Nanavati for the original claimants tha
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