NILIMABEN ARUNKUMAR BOSE vs. RANJITSINH GAJESINH OSWAL

C/FA/4754/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 4754 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

================================================================ 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ NILIMABEN ARUNKUMAR BOSE & 2....Appellant(s) Versus RANJITSINH GAJESINH OSWAL & 4....Defendant(s) ================================================================ Appearance: MR PR JANI, ADVOCATE for the Appellant(s) No. 1 - 3 MR AJAY R MEHTA, ADVOCATE for the Defendant(s) No. 1 MR GC MAZMUDAR, ADVOCATE for the Defendant(s) No. 3 MR HG MAZMUDAR, ADVOCATE for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 2 , 5 RULE SERVED BY DS for the Defendant(s) No. 4 ================================================================ Page 1 of 9

C/FA/4754/2008 JUDGMENT CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

Date : 19/11/2014

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) This appeal is filed by the dependents and heirs of deceased Arunkumar Bose who died in a vehicular accident on 1.5.2002. They have prayed for enhancement of the compensation awarded by the Claims Tribunal in the impugned judgment and award dated 27.2.2007 passed in Claim Petition No.496 of 2002. Brief facts are as under: Said Shri Arunkumar Bose aged about 48 years was employed as Class I officer in Oil and Natural Gas Commission (ONGC for short). He was travelling in the car of the employer where the car collided with a truck. ONGC vehicle as well as the truck, both were insured by the New India Assurance Co. Ltd. The question of negligence of two drivers or internal apportionment of their liability, therefore, is of no consequence in this appeal. The Claims Tribunal held the insurance company liable to pay the compensation. Considering the evidence on record, the Tribunal assessed the income of the deceased at the time of accident at Rs.3 lacs per annum. The Tribunal adopted the multiplier of 13, added a sum of Rs.30,000/- towards conventional amount and awarded a total compensation of Rs.26,35,000/- to the claimants, i.e. widow and two children of the deceased. Page 2 of 9

C/FA/4754/2008 JUDGMENT Before the Claims Tribunal, widow of the deceased was examined at Ex.68. In her deposition, she stated that her husband was receiving a salary of Rs.26,872/- per month just before the accident. He had also received Rs.17,000/- towards bonus, Rs.18,000/- towards leave encashment and Rs.4,000/- towards educational allowance. In addition to that, he was entitled to incentive bonus and medical reimbursement. One Anilkumar Gupta, Pay and Accounts Officer of the ONGC was examined at Ex.81. He produced the pay-slips and other related documents concerning the deceased employee. At Ex.82, the claimants examined one Manan Gandhi, who was also an employee of the ONGC working in the Finance and Accounts Department of the ONGC. He produced form 16 certificate under the Income Tax Act of a co-employee for the financial year from 1.4.2005 to 31.3.2006 showing gross income of Rs.5,81,780/-. This was exhibited at Ex.92. In addition to these depositions, the claimants relied on a circular Ex.85 providing drilling allowance to the employees at the rate of 20% of their basic pay. At Ex.86 a circular in respect of payment of HRA at different rates of basic pay depending on the class of city was produced. At Ex.86, the claimants produced the bio-data of the deceased issued by the ONGC which showed that he joined ONGC on 24.8.1981 and by 1.1.2000, he had received five promotions. Ex.90 is the pay slip of the deceased for the month of Page 3 of 9

C/FA/4754/2008 JUDGMENT April 2002 which showed his basic pay of Rs.13,331/- and with allowances and perquisites, his gross salary for the month was Rs.26,872/-. The employer had deducted tax of Rs.3,500/- for the said month. Ex.91 is form 16 certificate issued by the employer for the deceased which showed that between 1.4.2001 and 31.3.02, he was paid gross salary of Rs.3,27,971/- and he had a tax liability of Rs.50,653/- out of such income. Having heard the learned counsel for the parties and having perused the documents on record, it clearly emerges that the deceased was in employment of a Government corporation. Since beginning of his service, he had received as many as 5 promotions. His gross salary for the financial year from 1.4.2001 to 31.3.2002 was Rs.3,27,971/-. He died on 1.5.2002. In the month of April 2002, he received gross salary of Rs.26,000/ (rounded off) out of which a sum of Rs.3500/- was deducted towards tax liability. Considering such figures, even after deduction of tax, his income per month could safely be taken at Rs.22,500/- on the date of the accident or Rs.2,70,000/- per annum. This would not take into account the incentive bonus referred to by the widow in her deposition. This assertion of the widow is not seriously challenged by the insurance company in her cross-examination. Additionally, we have form No.16 in case of a co-employee, of course, of a couple of years later. This gives the break-up of the income of the employee which includes the bonus payment of Rs.37,693/-. Considering these aspects, we may add a sum of Rs.30,000/- to his early income of Rs.2,70,000/-. This will take the income amount to Rs.3 lacs per Page 4 of 9

C/FA/4754/2008 JUDGMENT annum. The Tribunal did not consider any prospective rise in income. This was wrong for two reasons. The Supreme Court in the case of Sarla Varma v. DTC, (2009) 6 SCC 121, did recognize that even in the age of group of 45 to 50, in case of employee in the Government Corporation, increase of 30% should be adopted. In the present case, there was sufficient evidence to hold that the income of the deceased would have surely increased with the passage of time. Firstly, he was employed in a Government corporation with certainty of job tenure. Secondly, the ONGC’s pay structure was subject to revision every 10 years. The last revision had taken place in the year 1997. During the active service life of the employee, therefore, at least one more pay revision was due. Even otherwise, considering the past pattern, he would have earned further promotions. 30% increase of the estimated current income at the time of death is therefore justified. The prospective income of the deceased therefore would come to Rs.3,90,000/- per annum. One-third thereof or Rs.1,30,000/- would be set apart for the personal expenditure of the deceased leaving a net amount of Rs.2,60,000/- for the dependents. Adopting the multiplier of 13 as suggested by the Supreme Court in the case of Sarla Varma (supra), the dependency loss would come to Rs.2,60,000 x 13 = Rs.33,80,000/-. To this amount, we would a sum of Rs.1 lac for the loss of estate, loss of consortium and love and care for the children and Rs.10,000/- towards post death ceremonies as was done by this Court in a recent decision dated 14.10.2014 rendered in First Appeal No.3894 of 2006, wherein considering various judgment of the Supreme Court, this Court held and observed as under: Page 5 of 9

C/FA/4754/2008 JUDGMENT “At this stage, learned counsel Shri Kakkad for the claimants urged that in terms of the judgment of the Supreme Court in the case of Rajesh v. Rajbir Singh, (2013) 9 SCC 54, the claimants would be entitled to Rs.1 lac under the head of consortium and Rs.1 lac towards loss of care and guidance to the child. He pointed out that in a later decision in the case of Vimal Kanwar v. Kishore Dan, (2013) 7 SCC 476, the Supreme Court once again granted Rs.1 lac under such heads. It was also pointed out that in the case of Sanobanu Nazirbhai Mirza v. Ahmedabad Municipal Transport Service, 2013 ACJ 2733, the Supreme Court awarded similar amounts relying on the decision in the case of Rajesh (supra). On the other hand, learned counsel for the appellant drew our attention to a decision of the Supreme Court in the case Minu Rout v. Satya Pradhymna Mohapatra, (2013) 10 SCC 695 in which a sum of Rs.50,000/- was awarded under conventional heads. He pointed out that this Court in the case of United India Insurance Co. Ltd v. Naynaben, wd/o Bharatkumar Bhalchandra Patel, in First Appeal No.481 of 2001 referring to the decision in the case of Minu Rout (supra) awarded a combined sum of Rs.50,000/- towards loss of consortium, loss of estate and funeral expenses. In the case of Rajesh (supra), the Supreme Court advocated for increase in the amount of consortium being awarded in fatal cases. It was observed as under: “17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistence on a socio- economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2500 to Rs.10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Varma case, it was held that compensation for loss of Page 6 of 9

C/FA/4754/2008 JUDGMENT consortium should be in the rage of Rs.5000 to Rs.10,000. In legal parlance, “consortium” is the right of the spouse to the company,care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc. the spouse is entitled to get, has to be compensated appropriately. The concept of non- pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are if the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.” In the said judgment, the Supreme Court awarded a sum of Rs.1 lac separately for loss of care guidance for the minor children. One may, however, notice that no separate amount was awarded for loss of estate. Later, in the case of Vimal Kanwar (supra), the Supreme Court once again awarded compensation in following manner: “33. Having regard to the facts and evidence on record, we estimate the monthly income of the deceased Sajjan Singh at Rs.9,000 x 2 = Rs.18,000/- per month. From this his personal living expenses, which should be 1/3rd, there being three dependents has to be deducted. Thereby, the ‘actual salary’ will come to Rs.18,000 – Rs.6,000/- = Rs.12,000/- per month or Rs.12,000 x 12 =1,44,000/- per annum. As the deceased was 28 ½ years old at the time of death the multiplier of 17 is applied, which is appropriate to the age of the deceased. The normal compensation would then work out to be Rs.1,44,000/- x 17 =Rs.24,48,000/- to Page 7 of 9

C/FA/4754/2008 JUDGMENT which we add the usual award for loss of consortium and loss of the estate by providing a conventional sum of Rs. 1,00,000/-; loss of love and affection for the daughter Rs.2,00,000/-, loss of love and affection for the widow and the mother at Rs.1,00,000/- each i.e. Rs.2,00,000/- and funeral expenses of Rs.25,000/-.” Likewise, in the case of Sanabanu Nazirbhai Mirza (supra) also the Supreme Court awarded such amounts without separately awarding any compensation for loss of estate. It is true that in the case of Minu Rout, a Division Bench of the Supreme Court confined the compensation under conventional heads to Rs.50,000/-. This Court has, as noted above, adopted such a modality in the case of United India Insurance Company v. Naynaben (supra). It can thus be seen that the compensation to be awarded towards consortium and loss of love and affection to the children is not rigidly standardized. Nevertheless, the trend and the indications available from different decisions of the Supreme Court are in favour of increasing such compensation under conventional heads to keep in tune with the reducing purchasing power of the rupee as also bearing in mind the concept of sudden tragic and needless loss of life resulting into trauma and mental agony to the family members of the deceased. If it happens to be the wife, she would be deprived of life long love, affection and protection and companionship. The children at tender age would lose a parent without whom their upbringing and parenting would indefinitely be incomplete. The judgments of the Supreme Court noted above, including one in the case of Minu Raut cited by the counsel for the appellant do suggest a break from the present trend of awarding rather conservative amounts towards consortium or loss of love and affection to the children. In the facts of the present case, therefore, we adopt a sum of Rs.1 lac towards combined heads of loss of consortium and loss of live and affection to the children. No separate amount is being awarded to the loss of estate.” Accordingly, the claimants would receive total amount of Page 8 of 9

C/FA/4754/2008 JUDGMENT Rs.33,80,000/- + Rs.1,10,000/- = Rs.34,90,000/-. The Claims Tribunal awarded an amount of Rs.26,35,000/-. Thus, the claimants would receive an additional amount of Rs.8,55,000/-. This amount shall be paid by respondent No.3 insurance company with simple interest at the rate of 9% per annum from the date of claim petition till actual payment, which shall be done by 31st December 2014. The appeal is accordingly allowed. R & P may be transmitted to the Claims Tribunal. (AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) (vjn) Page 9 of 9