{"id":91010,"date":"2008-02-14T00:00:00","date_gmt":"2008-02-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/oriental-insurance-company-ltd-vs-jashuben-ors-on-14-february-2008"},"modified":"2017-10-05T11:25:10","modified_gmt":"2017-10-05T05:55:10","slug":"oriental-insurance-company-ltd-vs-jashuben-ors-on-14-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/oriental-insurance-company-ltd-vs-jashuben-ors-on-14-february-2008","title":{"rendered":"Oriental Insurance Company Ltd vs Jashuben & Ors on 14 February, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Oriental Insurance Company Ltd vs Jashuben & Ors on 14 February, 2008<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, V.S. Sirpurkar<\/div>\n
           CASE NO.:\nAppeal (civil)  1272 of 2008\n\nPETITIONER:\nOriental Insurance Company Ltd.\n\nRESPONDENT:\nJashuben & Ors.\n\nDATE OF JUDGMENT: 14\/02\/2008\n\nBENCH:\nS.B. Sinha & V.S. Sirpurkar\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP (C) No.7304 of 2007)<\/p>\n
S.B. Sinha, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
1.\tAppellant is before us aggrieved by and dissatisfied with a judgment
\nand order dated 22.11.2006 passed by the Division Bench of the High Court
\nof Gujarat at Ahmedabad in First Appeal No.4586 of 2006 dismissing the
\nappeal preferred by him.\n<\/p>\n
2.\t Claimants-Respondents herein are heirs and legal representatives of
\nDavjibhai Kushalbhai Rathod.  He, while travelling in a mini luxury bus as a
\npassenger from Surat to Mehsana, met with a road accident which took place
\non 23.6.1994.  The accident occurred due to rash and negligent driving on
\nthe part of the driver of the said mini bus is not question.\n<\/p>\n
3.\tThe deceased, Devjibhai, at that time, was aged about 35 years.  He
\nwas working as an Assistant in the Oil and Natural Gas Commission.  A sum
\nof Rs.12,00,000\/- was initially claimed by way of compensation which was
\nsubsequently raised to 25,00,000\/-.  The Tribunal, as per the certificate
\nissued by the Senior Personnel and Administrative Officer, ONGC, noticed
\nthat the deceased had been receiving the following salaries and perks in the
\nmonth of June 1994 :\n<\/p>\n
 1.\tBasic Pay\t\t\t\tRs.3295\/-\n<\/p>\n
2.\tDA @ 18.5%\t\t\tRs.  610\/-\n<\/p>\n
3.\tDSCA 20% of basic\t\tRs.  650\/-\n<\/p>\n
4.\tHRA @ 18% of basic Pay\tRs.  593\/-\n<\/p>\n
5.\tProductivity allowance\t\tRs.  450\/-\n<\/p>\n
6.\tWashing allowance\t\tRs.    45\/-\n<\/p>\n
7.\tConveyance Allowance\t\tRs.  375\/-\n<\/p>\n
8.\tChild Education Allowance
\n\t(for two children)\t\t\tRs.  240\/-\n<\/p>\n
9.\tChild Bus fare (for children)\tRs.  160\/-\n<\/p>\n
\t\t\tTotal :\t\tRs.6418\/-\n<\/p><\/blockquote>\n
\t\t\t\t\t\t________<\/p>\n<\/blockquote>\n
4.\tHowever, the Tribunal also took into consideration the salary which
\nmight have been payable to the said deceased as in August, 2002; had he
\ncontinued in service which was stated to be as under :\n<\/p><\/blockquote>\n
1.\tBasic Pay\t\t\t\tRs.10698.00\n2.\tDA @ 35.5%\t\t\t\tRs.  3892.00\n3.\tDSCA 20% of basic\n\t(maximum Rs.3100)\t\t\tRs.  2193.00\n4.\tHRA @ 22.5% of basic Pay\t\tRs.  2406.00\n5.\tProductivity allowance\t\tRs.    500.00\n6.\tTribal allowance\t\t\tRs.    200.00\n7.\tConveyance Allowance\t\tRs.    740.00\n8.\tChild Education Allowance\n\t(for two children)\t\t\tRs.    500.00\n9.\tChild Bus fare (for children)\t\tRs.    250.00\n10.\tCanteen Sub.\t\t\t\tRs.    164.80\n\n\t\t\tTotal :\t\t\tRs.21803.80\n\t\t\t\t\t\t\t_________\n\n\n<\/pre>\n
5.\tThe Tribunal, clubbed the income of the deceased which he might
\nhave got at the time of his retirement, i.e., Rs.3,295\/- + Rs.17453\/-, totaling
\na sum of Rs.20,748\/- and divided the same by figure two to arrive the figure
\nof at Rs.10,374\/- per month.  Adopting a multiplier of 16, the amount of
\ncompensation was determined at Rs.13,27,872\/-.  Besides the compensation
\namount, amount of gratuity, conventional amount and funeral expenses were
\ncalculated as follows :\n<\/p><\/blockquote>\n
Rs.13,27,872\/- towards dependency loss
\nRs.       10,000\/- towards conventional amount
\nRs.         3,000\/- towards funeral expenses
\nRs.    3,02,468\/- towards gratuity
\nRs. 16,43,340\/-<\/p>\n
6.\tInterest on the said amount sum at the rate of 12 per cent was also
\nawarded.\n<\/p>\n
7.\tOn an appeal preferred by the appellant thereagainst, a Division
\nBench of the High Court opined that as a revision of pay had been effected
\nby ONGC from 1.1.1997 and in August 2002, the employees in the same
\ncadre would have received a sum of Rs.10,693\/- per month with Dearness
\nAllowance at the rate of 35.5% amounting to Rs.3892\/- and other
\nallowances.  The net income of the deceased was found to be at least a sum
\nof Rs.16,000\/- so as to enable the Tribunal to come to the conclusion that the
\nloss of dependency benefit would come to Rs.16,000\/- from January 1997
\nonwards.  The High Court stated :\n<\/p>\n
In view of the above settled legal position, we do
\nnot find any difficulty in accepting the submission
\nof Mr. Nanavati for the original claimants that the
\nTribunal was justified in looking at the pay
\nrevision of employees of the ONGC for the
\npurpose of assessing prospective income of the
\ndeceased.  The accident in question took place in
\nSeptember 1994.  The basic pay of the deceased at
\nthat time was Rs.3295\/- and with dearness
\nallowance and other allowances, his total pay-
\npacket was Rs.6,418\/-.  Even proceeding on the
\nbasis that the deductions made by the employer
\nmay be taken into account, basic pay, dearness
\nallowance, drill site compensation allowance and
\nhouse rent allowance granted to the deceased
\nwould almost come to Rs.5,000\/- per month.
\nWithin less than three years from the date of the
\naccident, pay revision was made by the ONGC
\nwith effect from 1.1.97 and in August 2002, basic
\npay of the employees in the same cadre in which
\nthe deceased was working was Rs.10,693\/- per
\nmonth with dearness allowance at the rate of
\n35.5% being Rs.3892\/-; drill site compensatory
\nallowance and HRA were also substantially
\nrevised and they were 20% and 22.5% of the basic
\npay in August 2002.  These four items aggregated
\nto Rs.19,184\/- per month.  Over and above these
\nheads, there were also other allowances like
\nproductivity allowance, conveyance allowance,
\nchild education allowance, child bus welfare
\nallowance, etc. making it a total figure of
\nRs.21,808\/-.  Even after taking into account all
\ndeductions including the income tax liability, the
\nnet income available to the deceased and his
\nfamily would have been at least Rs.16000\/- from
\nJanuary 1997 onwards.<\/p>\n
8.\tThe High Court, however, not only adopted the multiplier of 13
\ninstead of 16 to arrive at the conclusion that the loss of dependency would
\nbe about Rs.16,000\/-, but also interfered with the rate of interest to hold that
\nreasonable interest payable would be 8% per annum.  Appellant was directed
\nto deposit the said amount with proportionate costs and interest at the rate of
\n8% per annum from the date of filing of the claim petition till its realization.\n<\/p>\n
9.\tMr. Pankaj Seth, learned counsel appearing on behalf of the appellant,
\nwould submit that the Tribunal as also the High Court committed a serious
\nerror in passing the impugned judgment in so far as they failed to take into
\nconsideration that computation for loss of income should have, in a situation
\nof this nature, been determined only by doubling the amount of the salary
\nreceived by the deceased at the relevant time.  Future prospects, according to
\nthe learned counsel, could not have been taken into consideration.\n<\/p>\n
10.\tMr. Karia, learned counsel appearing for the respondent, on the other
\nhand, urged that future prospect including the revision in the scale of pay
\nshould be taken into consideration for the purpose of determination of the
\namount of compensation.\n<\/p>\n
11.\tThe amount of compensation payable to the heirs and legal
\nrepresentatives of a deceased victim of an accident must be a fair and
\nreasonable one.  The estimate of the amount of loss of dependency  may be
\narrived at by adopting various methods, application of structured formula
\nbeing one of them.  Such a formula has also been provided for in Schedule II
\nappended to the Motor Vehicles Act, 1988.  While determining the amount
\nof compensation, certain well known principles must be kept in mind.\n<\/p>\n
12.\tIt is not a case where, as on the date of death, the salary of the
\ndeceased was revised with retrospective effect from 1994.  Salary would be
\nrevised or not was not known at that part of time.  Only because such salary
\nwas revised at a later point of time, the same by itself would not have been a
\nfactor which could have been taken into consideration for determining the
\namount of compensation.  The Tribunal, therefore, committed a serious
\nillegality in taking into consideration the latter aspect.\n<\/p>\n
13.\tThe amount of compensation indisputably should be determined
\nhaving regard to the pecuniary loss caused to the dependents by reason of
\nthe death of the victim.  It was necessary to consider the earnings of the
\ndeceased at the time of the accident.  Of course, further prospect is not out of
\nbound for such consideration.  But the same should be founded on some
\nlegal principle.\n<\/p>\n
14.\tIn General Manager, Kerala State Road Transport Corporation,
\nTrivendrum v.  Susamma Thomas<\/a> [(1994) 2 SCC 176], this Court held :
\nThe multiplier method involves the ascertainment
\nof the loss of dependency or the multiplicand
\nhaving regard to the circumstances of the case and
\ncapitalizing the multiplicand by an appropriate
\nmultiplier.  The choice of the multiplier is
\ndetermined by the age of the deceased (or that of
\nthe claimants whichever is higher) and by the
\ncalculation as to what capital sum, if invested at a
\nrate of interest appropriate to a stable economy,
\nwould yield the multiplicand by way of annual
\ninterest.  In ascertaining this, regard should also be
\nhad to the fact that ultimately the capital sum
\nshould also be consumed-up over the period for
\nwhich the dependency is expected to last.<\/p>\n
15.\tThe legal principle in this behalf has been laid down in the following
\nterms :\n<\/p>\n
19. In the present case the deceased was 39 years
\nof age. His income was Rs. 1032\/- per month. Of
\ncourse, the future prospects of advancement in life
\nand career should also be sounded in terms of
\nmoney to augment the multiplicand. While the
\nchance of the multiplier is determined by two
\nfactors, namely, the rate of interest appropriate to a
\nstable economy and the age of the deceased or of
\nthe claimant whichever is higher, the
\nascertainment of the multiplicand is a more
\ndifficult exercise. Indeed, many factors have to be
\nput into the scales to evaluate the contingencies of
\nthe future. All contingencies of the future need not
\nnecessarily be baneful. The deceased person in this
\ncase had a more or less stable job. It will not be
\ninappropriate to take a reasonably liberal view of
\nthe prospects of the future and in estimating the
\ngross income it will be unreasonable to estimate
\nthe loss of dependency on the present actual
\nincome of Rs. 1032\/- per month. We think, having
\nregard to the prospects of advancement in the
\nfuture career, respecting which there is evidence
\non record, we will not be in error in making a
\nhigher estimate of monthly income at Rs. 2000\/- as
\nthe gross income. From this has to be deducted his
\npersonal living expenses, the quantum of which
\nagain depends on various factors such as whether
\nthe style of living was spartan or bohemian. In the
\nabsence of evidence it is not unusual to deduct
\none-third of the gross income towards the personal
\nliving expenses and treat the balance as the amount
\nlikely to have been spent on the members of the
\nfamily and the dependents. This loss of
\ndependency should capitalise with the appropriate
\nmultiplier. In the present case we can take about
\nRs. 1,400\/- per month or Rs. 17,000\/- per year as
\nthe loss of dependency and if capitalized on a
\nmultiplier of 12 which is appropriate to the age of
\nthe deceased, the compensation would work out to
\n(Rs. 17,000\/- x 12= 2,04,000\/- rupees) to which is
\nadded the usual award for loss of consortium and
\nloss of the estate each in the conventional sum of
\nRs. 15,000\/.<\/p>\n
     This Court in Sarla Dixit & Anr. v. Balwant Yadav & Ors.<\/a> [(1996) 3
\nSCC 179] opined :\n<\/p>\n
The average gross future monthly income could
\nbe arrived at by adding the actual gross income at
\nthe time of death, namely, Rs.1,500\/- per month to
\nthe maximum which he would have otherwise got
\nhad he not died a premature death, i.e., Rs.3,000\/-
\nper month and dividing that figure by two.  Thus,
\nthe average gross monthly income spread over his
\nentire future career, had it been available, would
\nwork out to Rs.4,500\/- divided by 2, i.e.,
\nRs.2,200\/-.  Rs.2,200\/- per month would have been
\nthe gross monthly average income available to the
\nfamily of the deceased had he survived as a bread
\nwinner.<\/p>\n
16.\tIn Rathi Menon v. Union of India<\/a> [(2001) 3 SCC 714], this Court,
\nupon considering the dictionary meaning of compensation held :
\nIn this context a reference to Section 129 of the
\nAct appears useful. The Central Government is
\nempowered by the said provision to make rules by
\nnotification “to carry out the purposes of this
\nChapter”. It is evident that one of the purposes of
\nthis chapter is that the injured victims in railway
\naccidents and untoward incidents must get
\ncompensation. Though the word “compensation” is
\nnot defined in the Act or in the Rules it is the
\ngiving of an equivalent or substitute of equivalent
\nvalue. In Black’s Law Dictionary , “compensation”
\nis shown as
\nequivalent in money for a loss
\nsustained; or giving back an
\nequivalent in either money which is
\nbut the measure of value, or in actual
\nvalue otherwise conferred; or
\nrecompense in value for some loss,
\ninjury or service especially when it is
\ngiven by statute.
\nIt means when you pay the compensation in terms
\nof money it must represent, on the date of ordering
\nsuch payment, the equivalent value.<\/p>\n
17.\tIn N. Sivammal and Ors. v. Managing Director, Pandian Roadways
\nCorporation and Ors.<\/a> [(1985) 1 SCC 18], this Court took into consideration
\nthe pay packet of the deceased.\n<\/p>\n
18.\tWe may also notice that in T.N. State Transport Corporation Ltd. v. S.
\nRajapriya and Ors.<\/a> [(2005) 6 SCC 236], this Court held :
\n8. The assessment of damages to compensate the
\ndependants is beset with difficulties because from
\nthe nature of things, it has to take into account
\nmany imponderables e.g. the life expectancy of the
\ndeceased and the dependants, the amount that the
\ndeceased would have earned during the remainder
\nof his life, the amount that he would have
\ncontributed to the dependants during that period,
\nthe chances that the deceased may not have lived
\nor the dependants may not live up to the estimated
\nremaining period of their life expectancy, the
\nchances that the deceased might have got better
\nemployment or income or might have lost his
\nemployment or income together.\n<\/p>\n
9. The manner of arriving at the damages is to
\nascertain the net income of the deceased available
\nfor the support of himself and his dependants, and
\nto deduct therefrom such part of his income as the
\ndeceased was accustomed to spend upon himself,
\nas regards both self-maintenance and pleasure, and
\nto ascertain what part of his net income the
\ndeceased was accustomed to spend for the benefit
\nof the dependants. Then that should be capitalised
\nby multiplying it by a figure representing the
\nproper number of years’ purchase.\n<\/p>\n
10. Much of the calculation necessarily remains in
\nthe realm of hypothesis “and in that region
\narithmetic is a good servant but a bad master”
\nsince there are so often many imponderables. In
\nevery case “it is the overall picture that matters”,
\nand the court must try to assess as best as it can the
\nloss suffered.<\/p>\n
19.\tThe same view was reiterated in New India Assurance Co. Ltd. v.
\nCharlie and Anr.<\/a> [(2005) 10 SCC 720]. However, therein although the words
\n‘net income’ has been used but the same would ordinarily mean gross income
\nminus the statutory deductions. We must also notice that the said decision
\nhas been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) and
\nOrs.<\/a> [(2007) 3 SCC 538].\n<\/p>\n
20.\tIn Bijoy Kumar Dugar v. Bidya Dhar Dutta & Ors.<\/a> [(2006) 3 SCC
\n242], this Court, in a case where the salary of the deceased was found to be
\nRs.3600\/- after deduction and wherein multiplier of 12 was applied where
\nthe age of the parents of the deceased was between 45 and 50 years, held
\nthat no further enhancement was warranted.\n<\/p>\n
21.\tIn U.P. State Road Transport Corporation v. Krishna Bala & Ors.<\/a>
\n[(2006) 6 SCC 249], it was held :\n<\/p>\n
The multiplier method involves the ascertainment
\nof the loss of dependency or the multiplicand
\nhaving regard to the circumstances of the case and
\ncapitalizing the multiplicand by an appropriate
\nmultiplier.  The choice of the multiplier is
\ndetermined by the age of the deceased (or that of
\nthe claimants, whichever is higher) and by the
\ncalculation as to what capital sum, if invested at a
\nrate of interest appropriate to a stable economy,
\nwould yield the multiplicand by way of annual
\ninterest.  In ascertaining this, regard should also be
\nhad to the fact that ultimately the capital sum
\nshould also be consumed over the period for which
\nthe dependency is expected to last.<\/p>\n
22.\tTherein a multiplier of 13 was adopted in a case where the age of the
\ndeceased was around 36.\n<\/p>\n
23.\tAlmost to the same effect is the decision of this Court in The
\nManaging Director, TNSTC v. Sripriya & Ors.<\/a> [2007 (4) SCALE 222]. In
\nthat case, a multiplier of 12 was applied in a case where the age of the
\ndeceased was 37 years.\n<\/p>\n
24.\tEven certain allowances payable to the deceased could have been
\ntaken into consideration in the changing social scenario.  In National
\nInsurance Company Ltd. v. Indira Srivastava & Ors.<\/a> [2007 (14) SCALE
\n461], it is useful to notice, this Court observed :
\n17. The amounts, therefore, which were required
\nto be paid to the deceased by his employer by way
\nof perks, should be included for computation of his
\nmonthly income as that would have been added to
\nhis monthly income by way of contribution to the
\nfamily as contradistinguished to the ones which
\nwere for his benefit. We may, however, hasten to
\nadd that from the said amount of income, the
\nstatutory amount of tax payable thereupon must be
\ndeducted.<\/p>\n
\tNoticing the dictionary meaning of income, it was held :
\n19. If the dictionary meaning of the word ‘income’
\nis taken to its logical conclusion, it should include
\nthose benefits, either in terms of money or
\notherwise, which are taken into consideration for
\nthe purpose of payment of income-tax or
\nprofession tax although some elements thereof
\nmay or may not be taxable or would have been
\notherwise taxable but for the exemption conferred
\nthereupon under the statute.<\/p>\n
25.\tWe, therefore, are of the opinion that what would have been the
\nincome of the deceased on the date of retirement was not a relevant factor in
\nthe light of peculiar facts of this case and, thus, the approach of the Tribunal
\nand the High Court must be held to be incorrect.  It is impermissible in law
\nto take into consideration the effect of revision in scale of pay w.e.f.
\n1.1.1997 or what would have been the scale of pay in 2002.\n<\/p>\n
26.\tThe loss of dependency, in our opinion, should be calculated on the
\nbasis as if the basic pay of the deceased been Rs. 3295\/- X 2 = Rs. 6,590\/-,
\nthereto should be added 18.5% dearness allowance which comes to
\nRs.1219\/-, child education allowance for two children @ Rs.240\/- X 2 =
\nRs.480 and child bus fair Rs.160 X 2 = Rs.320\/- should have been added
\nwhich comes to Rs.8,609\/-.\n<\/p>\n
27.\tFrom the aforementioned figure 1\/3rd should be deducted.  After
\ndeduction, the amount of income comes to Rs.5,738\/- per month [Rs.8609\/-
\n Rs.2871\/-] and the amount of compensation should be determined by
\nadopting the multiplier of 13, which comes to Rs.8,95,128\/-\n<\/p>\n
28.\tIn the present case, the High Court itself has applied the multiplier of\n<\/p>\n
13.  We are of the opinion that no interference therewith is warranted.  We
\nfurthermore do not intend to interfere with the rate of interest in the facts and
\ncircumstance of the case.\n<\/p>\n
29.\tThe appeal is allowed in part and to the extent mentioned
\nhereinbefore.  In the facts and circumstances of the case, there shall be no
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Oriental Insurance Company Ltd vs Jashuben & Ors on 14 February, 2008 Author: S Sinha Bench: S.B. Sinha, V.S. Sirpurkar CASE NO.: Appeal (civil) 1272 of 2008 PETITIONER: Oriental Insurance Company Ltd. RESPONDENT: Jashuben & Ors. DATE OF JUDGMENT: 14\/02\/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-91010","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nOriental Insurance Company Ltd vs Jashuben & Ors on 14 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/oriental-insurance-company-ltd-vs-jashuben-ors-on-14-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Oriental Insurance Company Ltd vs Jashuben & Ors on 14 February, 2008 - 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