THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO M.A.C.M.A No.689 of 2011 ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) The wife, minor daughter, father and mother of Late Cap.G.Sirish (hereinafter referred to as ‘the deceased’) filed this appeal against the order dated 24.09.2009 passed by the Chairman, Motor Accidents Claims Tribunal–cum-I Additional Chief Judge, City Civil Court, Secunderabad in M.V.O.P.No.409 of 2006, seeking enhancement of the compensation. The appellants filed the above claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.43,52,000/- for the untimely death of the deceased, who died in a motor accident on 29.04.1999 involving a civil truck bearing No.JK 02A 6283 and Army Jeep bearing No.BA 90B 53659W near Potha Village on road to Kalakot. On the date of accident, the deceased was on official duty assigned with an important redeployment of forces and while he was travelling in the Army jeep accompanied by Major J.D.S.Daliwal, L/Nk.M.M.Dewri and Nk.J.B.Dogra, and when the jeep reached near Potha Village at about 8.15 a.m., the civil trick driven by the second respondent in a rash and negligent manner came on wrong side i.e., extreme right side on the path of the Army jeep, collided with it and dragged the jeep upto 20 meters down on a steep slope, due to which the jeep was sandwiched between a tree and the truck, and the deceased and Major J.D.S.Daliwal died on the spot, while the other two occupants sustained serious injuries. According to the claimants, at the time of accident, the deceased, who was aged about 24 years, was working as a Caption in the Army and was drawing a salary of Rs.12,000/- per month and was also provided with subsidy of free ration amounting to Rs.1,000/- per month and high altitude allowance of free accommodation, free transport etc. As the claimants were depending on the deceased and due to his death they lost their breadwinner, they filed the above M.V.O.P claiming compensation. Respondents 1 and 2 i.e., owner and driver of the crime vehicle remained ex parte. The third respondent – Insurance Company contested the petition by filing a counter-affidavit and putting the claimants to strict proof the manner of accident, age, occupation and income of the deceased and denied that the crime vehicle was insured with it and the rash and negligent driving by the driver of the crime vehicle. It is stated that there was contributory negligence on the part of the driver of the jeep, in which the deceased was travelling and hence the compensation should be apportioned between the owner of the jeep and the insurer of the crime vehicle. Based on the above pleadings, the Tribunal framed the following issues: 1. Whether the accident occurred owing to the rash and negligent driving of Lorry bearing No.JK 02A 6283 and Jeep bearing No.BA 90B 53659? 2. Whether the petitioners are entitled to any compensation, if so to what amount and against whom? 3. To what relief? On behalf of the claimants, Claimant No.3, who is the father of the deceased was examined as P.W.1 and two more witnesses were examined as P.Ws.2 and 3 and got marked Exs.A.1 to A.37. On behalf of the third respondent, no oral evidence was adduced, but Ex.B-1 was marked by consent. P.W.1, who is the father of the deceased, deposed that the second respondent drove the crime vehicle in a rash and negligent manner, due to which, the deceased died. P.W.3, who is an eyewitness to the accident, deposed that at the time of accident, apart from himself and the deceased two more persons were travelling in the Army jeep; that while the jeep was going the up-hill road, the crime vehicle came in the opposite direction on wrong side and hit the jeep, due to which, the jeep went back capsized two to three times and stopped near a tree and that the crime vehicle came down and hit the jeep again, due to which, the jeep was sandwiched between the tree and the crime vehicle and the deceased and Major J.D.S.Daliwal died on the spot. Apart from the said evidence, Ex.A.2-certified copy of F.I.R. was filed to prove that the accident occurred due to the rash and negligent driving of the driver of the crime vehicle. Considering the entire material available on record, the Tribunal found that the accident occurred due to the rash and negligent driving of the driver of the crime vehicle and accordingly answered Issue No.1. Coming to the quantum of compensation, apart from the evidence of P.W.2-Major General A.V.Subrahmanian, Exs.A.5 to A.30 were marked to substantiate the plea that the deceased was a brilliant and meritorious officer having selected at a young age in the Army and that at the time of accident he was working as Caption and still he was having service for about 37 years. As per the evidence of P.W.2, the deceased was drawing a salary of Rs.12,000/- and odd (all inclusive) per month; that the deceased was selected into the Army forces while he was in III year of Engineering; that he had an occasion to observe the academic record of the deceased and came to know that the deceased had done exceedingly well, not only in the courses of the University level but also in the Army examinations that were conducted and that as a Commanding Officer, he saw considerable potentiality in the deceased in the services. Whereas, P.W.3, who accompanied the deceased in the jeep at the time of accident, and who is working as Hawaldar in Indian Army, E.M.E Department at Jalandar, deposed that the salary of the deceased was Rs.12,000/- per month and along with all perks it comes to Rs.20,000/- per month. He further deposed that at the time of his giving evidence, the salary of the Captains was Rs.40,000/- per month. Taking into consideration the oral evidence, since the last drawn pay slip of the deceased was not filed, the Tribunal held that the salary of the deceased was Rs.12,000/- per month and after deducting 1/3rd towards his personal expenses, arrived at his net contribution towards the maintenance of his family members at Rs.96,000/- per annum. Since at the time of accident, the deceased was aged 24 years, the Tribunal applied the multiplier of ‘17’ and accordingly awarded the loss of dependency at Rs.16,32,000/-. Apart from that the Tribunal awarded Rs.15,000/- towards consortium to claimant No.1 - wife of the deceased and Rs.10,000/- towards funeral expenses. In all, the Tribunal awarded Rs.16,57,000/- towards compensation fastening the liability on respondent Nos.1 to 3. Seeking enhancement of compensation, the appellants filed this appeal. Smt.Pramada, learned counsel for the appellants contended that the deceased was working as a Caption in the Army at the time of accident and the future prospects, viz., increase of salary on the revision of pay and the promotional avenues available to him were not taken into consideration by the Tribunal in arriving at his monthly income. Apart from that, the deceased was provided with subsidy of free ration worth Rs.1,000/- and other perks like free accommodation, transportation etc., and the same should be added to the income of the deceased in arriving the loss of dependency. In support of the said contention, she relied upon Ex.P.31-certified copy of the award dated 01.08.2002 passed by the Motor Accidents Claims Tribunal, Chandigarh in MACT Case No.121 of 2000, wherein for the death of Major Jatinderdeep Singh Dhaliwal, who died in the very same accident, the Tribunal awarded compensation at Rs.19,20,000/- to the claimants therein by taking into consideration the future prospects. She also contended that as per the judgment of the Supreme Court in Sarala Verma v. Delhi Transport Corporation[1], the appropriate multiplier applicable to the age group of the deceased is ‘18’, but the Tribunal wrongly applied the multiplier of ‘17’. She further contended that the deceased used to maintain not only his wife and minor daughter but also maintain his father and mother and therefore, deduction of 1/3rd is not at all warranted and 1/4th has to be deducted. On the other hand, Sri A. Veera Sway, learned Standing Counsel appearing for the third respondent-Insurance Company contended that in the absence of any documentary evidence adduced by the claimants towards the pay revision and future prospects etc., the claimants are not entitled to any additional amount towards future prospects. But, however, he fairly conceded that as per the judgment of the Supreme Court in Sarala Varma’s case (supra), the appropriate multiplier for the age group of the deceased is ‘18’. In the light of the above submissions, the only controversy that has to be decided in this appeal is with regard to the quantum of compensation to which the claimants are entitled to ? The Supreme Court in Sarala Varma’s case (supra), on question (i) - Addition to income for future prospects, at para 24 held as under: “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 there from should be made only in rare and exceptional cases involving special circumstances.” There is no dispute that all the Lt. Colonals will be provided with free accommodation, telephone and electricity facilities and also subsidy of ration etc. In the instant case, due to the death of the deceased, his family is deprived of all such benefits. I n National Insurance Company Limited v. Indira Srivastava[2], the Supreme Court held that 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, and for the said purpose, not only the take-home salary is to be taken into consideration but also allowances and perks, which would have benefited the entire family. The same is reiterated in National Insurance Company Limited v. Saroj (SMT) and others[3]. In view of the above, the salary of the deceased can safely be taken as Rs.12,000/- per month and after adding Rs.6,000/- towards future prospects and Rs.4,000/- towards perks, his salary comes to Rs.22,000/-. Since P.W.1-father of the deceased admitted that he is drawing a sum of Rs.13,000/- per month towards pension, he is not a dependent on the deceased. The wife, minor children and mother of the deceased are only the dependants. In view of the same, 1/3rd has to be deducted from the salary of the deceased towards his personal expenses and after deducting the same, his net contribution to his family can be arrived at Rs.14,700/- per month, which comes to Rs.1,76,400/-. Since the appropriate multiplier for the age group of the deceased is ‘18’, after applying the same, the loss of dependency comes to Rs.31,75,200/-. Apart from this, the claimants are entitled to Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- towards ‘loss of love and affection’. In total, the claimants are entitled to Rs.32,05,200/- towards compensation. The appeal is accordingly allowed to the extent indicated above. There shall be no order as to costs. _____________________ A.GOPAL REDDY, J Date 14.07.2011 ____________________ RAJA ELANGO, J va [1] 2009 (6) SCALE 129 [2] (2008) 2 SCC 763 [3] (2009) 13 Supreme Court cases 508