4 Whether This Case Involves A ... vs G.S.R.T.C. & 2

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

============================================================== FULSHANKAR UMIYASHANKAR PANDIT & 4....Appellant(s) Versus G.S.R.T.C. & 2....Defendant(s) ============================================================== Appearance:

MR PR JANI, ADVOCATE for the Appellant(s) No. 1 ­ 1.3 , 2 ­ 5 NOTICE SERVED for the Defendant(s) No. 1 ­ 3 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE G.B.SHAH Date : 07/04/2015 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. The present appeal is directed against the judgment and award dated 03.02.2007 passed by the Page 1 of 9 C/FA/4149/2007 JUDGMENT Tribunal in MACP No.913/99, whereby the Tribunal has awarded compensation of Rs.4,14,000/­ with interest at the rate of 9% p.a.

2. The short facts of the case are that, on 20.05.1999, at about 3.30 pm, when the deceased Kiritkumar Fulshankar Pandit was going on his motorcycle bearing no.GJ­1AS­387, while passing on Sardar Bridge, one ST bus bearing No. GJ­18­ 1507 was also passing on the said bridge but on the top of the said bus, plywood was put on the upper carriage of the bus. As the said plywood which was not tied properly fell on the deceased, resultantly, the deceased sustained injuries and succumbed to the injuries. The claim petition was filed being MACP No.913/99 for compensation of Rs.20,00,000/­. The Tribunal at the conclusion of the petition, passed the above referred judgment and award. Under the circumstances, the present appeal before this Court.

3. We have heard Ms. S.R. Shelat for Mr. Paresh R. Jani, learned advocate for the appellant. The respondents are served, but none appears on their behalf.

4. The learned counsel for the appellant raised the only contention that the quantum awarded by the Tribunal is on much lower side. In her submission, the deceased was having income of about Rs.10,000/­ to Rs.12,000/­ per month at the Page 2 of 9 C/FA/4149/2007 JUDGMENT time of the accident. But inspite of the same, the Tribunal assessed the income at Rs.3,000/­ per month and not even considered the prospective income and awarded compensation. In her submission, the Tribunal ought to have considered the aspects of number of claimants for the purpose of deduction towards the personal expenses. Hence, this Court may consider the present appeal.

5. We have gone through the reasons recorded by the Tribunal and we have considered the record and proceedings. It is an admitted position that the deceased though was a self employed person having sales tax registration and having bank account with Vijaya Cooperative Bank Ltd., but had not filed any income tax return prior to the date of the accident. After the date of the accident, wife of the deceased had filed income tax return showing income of Rs.1,14,885/­. The said return is filed on 01.10.1999. Whereas, the date of the accident is 20.05.1999. We may also record that in the respective accounting year, the exempted income was of Rs.50,000/­. In normal circumstances, if one is not paying income tax though he may be doing business or earning salary from any private firm, the income can reasonably be considered upto the exemption limit. As in the present case, it was yearly Rs.50,000/­, income per month can be considered at Rs.4,166/­ and could be rounded at Rs.4,200/­ per month as against Rs.36,000/­ as assessed by the Tribunal.

C/FA/4149/2007 JUDGMENT

6. There is considerable force in the contention raised by the learned counsel for the appellant that the prospective income which ought to have been considered has not been considered by the Tribunal. It is true that in the case of Sarla Verma v. Delhi Transport Corporation & Anr. reported at (2009) 6 SCC 121, the Apex Court had held that in case of self­employed person, the actual income can be considered and no addition may be made for prospective income, but the said decision of the Apex Court in the case of Sarla Verma (supra) was again considered by the Apex Court in the case of Santosh Devi v. National Insurance Co. Ltd. and ors. reported at 2012 ACJ 1428. The Apex Court in the said decision in the case of Santosh Devi (supra), observed at paragraph 14 as under:

"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self­employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naïve to say that the wages or total emoluments/income of a person who is self­ employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich Page 4 of 9 C/FA/4149/2007 JUDGMENT and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self­ employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self­employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, Page 5 of 9 C/FA/4149/2007 JUDGMENT we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self­employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self­ employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."

7. In view of the above referred legal position, we find that 30% rise can be given for the prospective income and such would be Rs.15,000/­ and accordingly, the prospective income of the deceased can be assessed at Rs.65,000/­.

8. The learned counsel for the appellant had attempted to submit that the income tax return was filed of course after the date of the accident, but the extract of the accounts was produced and the accountant was also examined and therefore, there was no reason for the Tribunal to discard the said evidence. Had it been a matter where the income tax return were filed prior to the accident, it may stand on different footing and different consideration. It is not that in every case the return filed after the date of accident should be discarded. But it may vary from facts to facts. In our view, if the genuineness of the return is at doubt on account of the fact that after the date of accident, the Page 6 of 9 C/FA/4149/2007 JUDGMENT returns were filed and there is past history of no income tax return filed, 1/2 of the income could be considered for the purpose of assessment of income, but such may be with the prospective income. If such an aspect is considered, it would be roughly around Rs.55,000/­ and as observed earlier, if the prospective income is considered after giving rise to the income below the exemption limit under the Income Tax Act, it would be Rs.65,000/­ per year. Hence, we find that even if the contention is considered and examined, it would not make much difference for the assessment of the income for considering the economic loss.

9. It is an admitted position that the number of claimants were 5 and therefore, 1/4th of the deduction was required to be made towards personal expenses instead of 1/3rd as made by the Tribunal. 1/4th of Rs.65,000/­ would be Rs.16,250/­ and 3/4th is Rs.48,750/­ and it can be rounded at Rs.49,000/­ per year towards future economic loss for the claimants. The Tribunal has applied the multiplier of 16 and the age of the deceased was 39 years. As per the decision of the Apex Court in the case of Sarla Verma (supra), the appropriate multiplier would be 15 and if applied, the total amount towards economic loss would be Rs.7,35,000/­ as against the amount assessed by the Tribunal of Rs.3,84,000/­ towards loss of dependency.

C/FA/4149/2007 JUDGMENT

10. The perusal of the order passed by the Tribunal shows that the Tribunal has awarded Rs.15,000/­ towards loss of estate and Rs.10,000/­ towards loss of consortium, which in our view are on lower side. Considering the facts and circumstances, the original claimants would be entitled to the amount of Rs.50,000/­ towards joint head of loss of estate, loss of consortium and loss of love and affection. The Tribunal has awarded Rs.5,000/­ towards funeral expenses, which considering the facts and circumstances as per the cost structure prevailing in the year 1999 appears to be proper and no interference is called for.

11. In view of the aforesaid observations and discussions, it is observed and directed that the original claimants shall be entitled to the compensation of Rs.7,35,000/­ plus Rs.50,000/­ plus Rs.5,000/­, total Rs.7,90,000/­ with interest at the rate of 9% p.a. from the date of the application until the amount is paid or deposited with the Tribunal, and if deposited, with interest accrued thereon.

12. The judgment and award passed by the Tribunal is modified to the aforesaid extent. Appeal is partly allowed. Considering the facts and circumstances, no order as to costs.

13. R & P be sent back to the Tribunal.