Jammu & Kashmir High Court – Srinagar Bench
Shahid Shafi & Others vs Farooq Ahmad Najar & Ors on 27 December, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 19.12.2024
Pronounced on: 27.12.2024
Mac Appeal No.49/2021
Mac Appeal No.48/2021
SHAHID SHAFI & OTHERS
RUBEENA & ORS. ...APPELLANT(s)
Through: - Mr. A. A. Wani, Advocate.
Vs.
FAROOQ AHMAD NAJAR & ORS. ...RESPONDENT(S)
Through: - Mr. Aatir Kawoosa, Advocate, with
Mr. Areeb Kawoosa, Advocate.
Mr. Sajad Gulzar, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1. By this common judgment, afore-titled two appeals
arising out of two different awards relating to a single road
traffic accident, are proposed to be disposed of.
2. It appears that on 12.01.2015, deceased Mohammad
Shafi Malik and his wife, deceased Naza, were travelling in
a vehicle bearing registration No.JK09A-2565 (TATA Sumo)
from Gugloosa Kupwara towards Srinagar. On reaching
Village Ranji on National Highway, the vehicle in question
collided with a Load Carrier bearing registration No.JK01W-
1652, that was proceeding from the opposite direction. As
a result of the accident, both the above named persons
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suffered fatal injuries resulting in their death. The accident
is alleged to have been caused due to the composite
negligence of the drivers of the aforesaid two vehicles.
3. The legal representatives/claimants of the deceased
Mohammad Shafi Malik and his wife Mst. Naza, filed two
separate claim petitions before the Motor Accidents Claims
Tribunal, Srinagar (for short “the Tribunal”), claiming
compensation from the owners, drivers and the insurers of
the two offending vehicles. The learned Tribunal vide two
separate awards dated 29.06.2021, which are impugned in
the present appeals, held that the deceased had died as a
result of the road traffic accident that was caused due to
the rashness and negligence on the part of the drivers of
the two offending vehicles. It was also found that the
offending vehicle bearing No.JK09A-2565 was insured with
respondent United India Insurance Company Ltd. whereas
the offending vehicle bearing No.JK01W-1652 was insured
with respondent National Insurance Company Ltd. at the
relevant time. The learned Tribunal further found that there
was no violation of the terms and conditions of the policies
of insurance on the part of the owners of the offending
vehicles.
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4. While calculating the compensation in the claim
petition relating to the death of deceased Mohammad Shafi
Malik, who was working as an Orderly in Tehsil Office,
Kupwara, and was drawing a monthly salary of Rs.19,200,
the learned Tribunal assessed the loss of dependency to
the claimants at Rs.27,02,644/ and after adding
compensation under the conventional heads, the total
compensation in the amount of Rs.28,52,644/ was
awarded in favour of the claimants and the same was made
payable by the two insurance companies in equal
proportions. The Tribunal further held that the awarded
amount shall be shared in equal proportions by claimants
No.2 to 4, who happen to be appellant Nos.2 to 4 in Mac
App No.49/2021. The claimants 1 & 5, who happen to be
appellant Nos.1 and 5, were not given any share out of the
awarded sum.
5. In the claim petition relating to death of Mst. Naza,
who was a house wife, the learned Tribunal assessed her
notional income as Rs.4000/ per month and after giving
increase of 40% on account of future prospects, her
monthly notional income was taken as Rs.5600/. On this
basis, the learned Tribunal assessed the loss of dependency
at Rs.7,16,736/ and after adding compensation under the
conventional heads, the Tribunal awarded total
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compensation of Rs.8,66,736/ in favour of the claimants.
The same was made payable by the two insurance
companies in equal proportions. Claimant No.4, who
happens to be appellant No.4 in Mac App No.48/2021, was
not given any share in the awarded sum which was directed
to be shared in equal proportions amongst claimant Nos.1
to 3, who happen to be the appellant Nos.1 to 3 herein.
6. The award dated 29.06.2021 passed by the learned
Tribunal in respect of death of two deceased persons has
been challenged by the appellants on the grounds that the
learned Tribunal has not awarded the expenses for
transportation of the dead bodies. It has been further
contended that the compensation on account of loss of
consortium to appellants Shahid Shafi and Mohammad
Maqbool Malik has not been awarded by the Tribunal. It
has also been contended that the learned Tribunal has not
taken into account the fact that with effect from 1st
January, 2016, 7th Pay Commission Recommendations
were adopted in the case of Government employees of the
Jammu and Kashmir and deceased Mohammad Shafi
Malik, who was a Government employee, was expected to
get the benefit of the pay revision had he remained alive. It
has also been contended that the appellant Shahid Shafi
happen to be the son of both the deceased persons and was
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dependent upon the deceased at the time of their death, as
such, the learned Tribunal was not justified in depriving
him from a share in the compensation and in calculating
the compensation by excluding his dependency on the
deceased persons. It has been further contended that the
income of the deceased Naza, for the purposes of
calculation of compensation has been assessed by the
learned Tribunal on a lower side without any justification.
It has been further contended that appellant Mohammad
Maqbool Malik, who happens to be the brother of deceased
Mohammad Shafi Malik, is also entitled to share in the
amount of compensation. It has been further contended
that the learned Tribunal has erroneously deducted the
income tax from the income of deceased Mohammad Shafi
Malik, even though his income did not fall under the taxable
range. It has also been contended that the learned Tribunal
has adopted an incorrect multiplier while assessing the
compensation in the case of deceased Mohammad Shafi
Malik. On the basis of these grounds, the appellants have
challenged the impugned awards and sought enhancement
of the compensation.
7. I have heard learned counsel for the parties and
perused record of the case including record of the Tribunal.
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8. The first ground which has been urged by learned
counsel for the appellants is that while calculating the
income of deceased Mohammad Shafi Malik, the Tribunal
was obliged to take into consideration the fact that he was
expected to get revised salary with effect from 01.01.2016
in view of adoption of 7th Pay Commission
Recommendations in the case of Government employees of
the Jammu and Kashmir State. In this regard, it is to be
noted that deceased Mohammad Shafi Malik died on 12th
January 2015. It is an admitted fact that the
recommendations of 7th Pay Commission were adopted in
the case of Government employees of J&K State with effect
from 01.01.2016. In the considered view of this Court, the
benefit of revision of pay scales which takes place after the
death of a victim in a motor vehicular accident cannot be
given unless the revision of pay scales has been given
retrospective effect so as to cover the period during which
the death of the victim had taken place. The subsequent
prospective revision of pay scales would have no effect upon
the assessment of compensation in favour of the
dependents of a victim of motor vehicle accident. While
granting the benefit of future prospects by enhancing the
income of a deceased by certain percentage, the factors
relating to pay revision are taken care of. In fact, this aspect
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of the matter has been conclusively determined by the
Supreme Court in the celebrated judgment in the case of
Sarla Verma and others vs. Delhi Transport Corporation
and another, (2009) 6 SCC 121. It would be apt to refer to
Paras 45 to 47 of the said judgement which are reproduced
as under:
45. The assumption of the appellants that the actual
future pay revisions should be taken into account for
the purpose of calculating the income is not sound.
As against the contention of the appellants that if the
deceased had been alive, he would have earned the
benefit of revised pay scales, it is equally possible
that if he had not died in the accident, he might have
died on account of ill health or other accident, or lost
the employment or met some other calamity or
disadvantage. The imponderables in life are too
many. Another significant aspect is the non-
existence of such evidence at the time of the
accident.
46. In this case, the accident and death occurred in
the year 1988. The award was made by the Tribunal
in the year 1993. The High Court decided the appeal
in 2007. The pendency of the claim proceedings and
appeal for nearly two decades is a fortuitous
circumstance and that will not entitle the appellants
to rely upon the two pay revisions which took place
in the course of the said two decades. If the claim
petition filed in 1988 had been disposed of in the
year 1988-1989 itself and if the appeal had been
decided by the High Court in the year 1989-1990,
then obviously the compensation would have been
decided only with reference to the scale of pay
applicable at the time of death and not with
reference to any future revision in pay scales.
47. If the contention urged by the claimants is
accepted, it would lead to the following situation:
the claimants could only rely upon the pay scales in
force at the time of the accident, if they are prompt
in conducting the case. But if they delay the
proceedings, they can rely upon the revised higher
pay scales that may come into effect during such
pendency. Surely, promptness cannot be punished
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in this manner. We therefore reject the contention
that the revisions in pay scale subsequent to the
death and before the final hearing should be taken
note of for the purpose of determining the income for
calculating the compensation.
9. A Coordinate Bench of this Court in the case of Bajaj
Allianz Gen. Insu. Co. Ltd vs. Ghulam Mohi-ud-Din and
another, 2019 ACJ 3132, has also held that the benefit of
revision and enhancement of salary of the victim of accident
can be taken into consideration, if the revision of pay scale
takes place though subsequent to the death but with
retrospective effect covering the date of death of such
victim. The Court further held that the subsequent
prospective revision of pay scales resulting in enhancement
of salary of the deceased, which takes place after the death
of the deceased employee cannot be considered and the said
increase in salary would subsume in head “loss of future
prospects”.
10. In view of the foregoing position of law, the contention
of the appellants that the learned Tribunal has not taken
into account the pay revision while calculating the income
of the deceased Mohammad Shafi Malik is without any
merit. This is so because the deceased had died prior to the
date when the 7th Pay Commission recommendations were
given effect by the Government.
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11. The other contention that has been raised by the
appellants is that the appellant Mohammad Maqbool Malik
has not been granted any share in the awarded sum in the
claim petition pertaining to deceased Mohammad Shafi
Malik. The same is also without any substance for the
reason that appellant Mohammad Maqbool Malik happens
to be the brother of deceased Mohammad Shafi Malik, who
as per the evidence on record was employed in the bank
and was earning his own income. In the presence of sons
and daughters of deceased Mohammad Shafi Malik and
keeping in view the fact that appellant Mohammad Maqbool
Malik was having his own income and was not dependent
upon the income of deceased Mohammad Shafi Malik, he
cannot claim a share in the awarded sum.
12. The contention of the appellants that they are entitled
to transportation charges of the dead bodies of the deceased
is also without any merit because the appellants/claimants
have not led any evidence before the Tribunal to this effect.
In the absence of any evidence on this aspect, the Tribunal
could not have granted any additional compensation on
account of expenses on transportation of dead bodies. The
funeral expenses awarded to the claimants/appellants
under the conventional head would, under the
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circumstances, cover the expenses of transportation of
dead bodies of the victims as well.
13. Similarly, the contention of the appellants that the
Tribunal has adopted a lower multiplier while assessing the
loss of dependency in the case relating to death of
Mohammad Shafi Malik, is also without any merit. The
contention raised by the appellants is based upon the
assumption that the deceased was aged 38 years at the time
of his death, as has been mentioned in the claim petition
and the postmortem report. However, it has come in the
statement of PW Mohammad Ashraf Bhat, Record Keeper
that as per the service record, the date of birth of the
deceased was 27th February, 1971. Thus, the deceased was
aged 44 years at the time of his death and not 38 years, as
has been claimed by the appellants. The Tribunal, by taking
the age of the deceased as 44 years, has correctly applied
the multiplier of 14. The contention of the appellants in this
regard is, therefore, rejected.
14. The next contention relates to the assessment of loss
of dependency of the claimants in the case relating to
deceased Mohammad Shafi Malik. It has been contended
that his income was not falling in the taxable range and
because he had left behind 4 dependents, as such, the
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Tribunal has erred in deducting 1/3rd of his income towards
his personal expenses and, in fact, only 1/4th of his income
was eligible to be deducted.
15. If we have a look at the impugned award in the case
relating to deceased Mohammad Shafi Malik, his monthly
salary as per the salary certificate proved by PW
Mohammad Ashraf Bhat Record Keeper, was Rs.19,200
with his date of birth as 27th February, 1971. A perusal of
the salary certificate on record of the Tribunal shows that
the deceased was subscribing Rs.2000/ per month towards
GP fund. The Tribunal, in the instant case, has, after
adding 30% of the income of the deceased towards future
prospects and deducting income tax in the amount of
Rs.9952/, calculated the annual income of the deceased at
Rs.2,89,568.
16. The procedure adopted by the learned Tribunal is not
in accordance with law. As per the ratio laid down by the
Supreme Court in Sarla Verma‘s case (supra), the actual
income of the deceased less income tax, should be the
starting point for calculating the compensation. It has been
further held in the said case that to this actual salary less
tax, there should be addition of future prospects. In the
instant case, the learned Tribunal has added future
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prospects and thereafter deducted the income tax, which is
contrary to the ratio laid down by the Supreme Court in
Sarla Verma‘s case (supra).
17. When we go by the ratio laid down by the Supreme
Court in Sarla Verma‘s case (supra), which provides that
starting point for calculating the annual income of a victim
would be gross salary less income tax, we have to start with
gross salary of the deceased Mohammad Shafi Malik, which
has been proved to be Rs.19,200/ per month. His annual
salary would come to Rs.2,30,400/. When we deduct the
GP fund contribution of the deceased, which is Rs.2000/
per month (Rs.24,000/ per annum), the taxable income of
the deceased Mohammad Shafi Malik would come to
Rs.2,06,400/ per annum. As per the rates of income tax
that were prevailing at the relevant time, no income tax was
payable upto the annual income of Rs.2,50,000/.
Therefore, the income of the deceased was not within the
taxable range and, as such, no deduction on account of
income tax was to be made to the annual income of the
deceased. The monthly income was, therefore, required to
be taken as Rs.19,200/ and by giving 30% increase
(Rs.5760) on account of future prospects, the same would
come to Rs.24,960/ and his annual income would come to
Rs.2,99,520/.
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18. Another error that has been committed by the learned
Tribunal while calculating the loss of dependency of
deceased Mohammad Shafi Malik is that 1/3rd of the
income of the deceased towards his personal expenses has
been deducted by holding that he had left behind only three
dependents by excluding appellant Shahid Shafi from the
list of dependents on the ground that he was employed in
place of deceased Mohammad Shafi Malik on
compassionate basis.
19. The dependency of a deceased has to be assessed at
the time of his/her death and not on the basis of
subsequent events. If subsequent events are taken into
account, then in a case where a claim petition remains
pending, say for five or ten years, by that time if all
dependents of the deceased would start earning income,
then it would lead to a situation where no compensation on
account of loss of dependency would become payable to the
legal heirs of the deceased. The logic of taking into account
subsequent events while determining the dependency of a
victim does not appear to the sound, though it would
certainly be a factor while determining the shares of the
dependants out of the awarded sum. Here it would also be
pertinent to mention that it is the extent of dependency of
a claimant upon the income of the victim which determines
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his/her share in the awarded sum. The rules or the law of
inheritance applicable to the claimants have no bearing
upon the apportionment of the awarded compensation. The
dependency of the victim of a motor vehicular accident has
to be taken into consideration at the time when his/her
death takes place. Admittedly, at the time of death of both
the deceased, who happen to be the parents of appellant
Shahid Shafi, he was unemployed and had barely attained
the age of majority. Therefore, the Tribunal could not have
excluded the appellant Shahid Shafi from the list of
dependents of the deceased.
20. Once it is held that the deceased had left four
dependents, namely, Shahid Shafi, Suhail Shafi, Rubeena
and Rozia Shafi, as their sons/daughters, as per the law
laid down by the Supreme Court in Sarla Verma‘s case
(supra), and reiterated in National Insurance Company
vs. Pranay Sethi & Ors. (2017) 16 SCC 680, deduction
@1/4th of the income of the deceased towards his personal
and living expenses was to be resorted to. The Tribunal by
deducting 1/3rd of income of the deceased, has fallen into a
grave error.
21. Similarly, the learned Tribunal has erred in depriving
appellant Shahid from compensation on account of
parental consortium on the ground that he was major
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earning son of the two deceased. The law laid down by the
Supreme Court in Pranay Sethi‘s case (supra), as
explained in Magma General Insurance Co. Ltd. vs. Nanu
Ram & Ors., (2018) 18 SCC 130, clearly provides that loss
of consortium would include parental consortium which is
granted to a child upon premature death of a parent for loss
of parental aid, protection, affection, society, discipline,
guidance and training. It cannot be stated that once a child
attains the age of majority and starts earning income, he
does not need any parental aid, affection or guidance. Even
a major son or daughter is entitled to parental consortium
upon death of his/her parents @Rs.40,000/.
22. That takes us to the contentions regarding
assessment of income of deceased Naza. In the instant case,
the learned Tribunal, as already stated, has assessed the
notional income of deceased Naza, who happened to be a
house wife, as Rs.4000/ and after giving increase of 40%
towards future prospects, her monthly income has been
assessed as Rs.5600/. The learned Tribunal has, despite
noticing that contribution of a house wife is significant as
she performs role of a daughter, wife, sister and mother at
different stages of her life, assessed her notional income as
Rs.4000/ per month only. While holding so, the learned
Tribunal relied upon judgment of the Supreme Court in the
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case of Jitendra Khimshankar Trivedi & Ors. Vs. Kasam
Daud Kumbhar & Ors. (2015) 4 SCC 237.
23. The notional income that has been assessed by the
learned Tribunal, in the instant case, appears to be grossly
inadequate. In Jitendra Khimshankar Trivedi‘s case
(supra), the Supreme Court was dealing with a matter
where the death of the house wife had taken placed in the
year 1990. It is in those circumstances that the Supreme
Court assessed the income of deceased house wife as
Rs.4000/ per month. In the instant case, death of the
deceased has taken place in the year 2015 i.e. 25 years
thereafter. Therefore, the Tribunal was expected to take into
account the factors like increase in cost of living during
these 25 years, which the Tribunal has omitted to do.
24. The Supreme Court has, in the case of Latta Wadhwa
& Ors. Vs. State of Bihar, 2001 (8) SCC 197, while
emphasizing the contribution of a house wife towards her
household, observed that in the absence of the requisite
data and taking into consideration the multifarious services
rendered by the housewives for managing the entire family,
even on a modest estimation, value of such services should
be assessed at Rs.3000/ per month and Rs.36000/ per
annum in the case of housewives in the age group of 34 to
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59. The judgment was rendered in the year 2001 and the
death of the deceased, in the instant case, has taken place
in the year 2015. Having regard to the steep rise of inflation,
devaluation of rupee and increase in cost of living, the
income of a house wife in the year 2015 could have, by no
stretch of reasoning, been taken as Rs.4000/ per month
only. After taking into consideration the aforesaid factors,
the income of the deceased Naza was required to be taken
@Rs.6500/ per month.
25. Apart from the above, as per the Second Schedule to
Motor Vehicles Act, which was applicable at the relevant
time, the income of a non-earning spouse had to be taken
as 1/3rd of the income of her husband if the evidence in that
regard is available. In the instant case, as already stated,
the income of deceased Mohammad Shafi Malik, the
husband of deceased Naza, has been proved to be
Rs.19,200/ per month at the time of his death. Therefore,
even if we apply the Second Schedule to Motor Vehicles Act,
income of deceased Naza at the time of her death would
come to around Rs.6500/ per month. Thus, monthly
income of deceased Naza has to be taken as Rs.6500/ and
not Rs.4000/ per month, as has been done by the Tribunal.
After giving 40% rise to the said income of deceased Naza
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on account of future prospects, her monthly income would
work out to be Rs.9100/.
26. In the face of what has been discussed hereinabove,
the compensation is each of the cases is revised in the
following manner:
Mac App No.49/2021 filed in respect
of death of Mohammad Shafi Malik:
Compensation assessed by the Tribunal
S. No. Headings Amount awarded
1 Annual Income =Rs.2,89,568/
2 1/3rd deduction on account of =Rs.96,522/
personal and living expenses
3 Loss of dependency =1,93,046×14=27,02,644/
4 Loss on account of parental =1,20,000/
consortium (appellant Nos.2 to 4 only)
5 Funeral expenses =15,000/
6 Loss of estate =15,000/
Total compensation awarded =28,52,644/Modified/enhanced compensation
S. No. Headings Amount awarded
1 Annual income =2,99,520/
2 1/4th deduction on account of =Rs.74,880/
personal and living expenses
3 Loss of dependency =2,24,640×14=31,44,960/
4 Loss on account of parental =1,60,000/
consortium (appellant Nos.1 to 4)
5 Funeral expenses =15,000/
6 Loss of estate =15,000/
Total compensation awarded =33,34,960/Mac App No.48/2021 filed in respect
of death of Mst. Naza:
Compensation assessed by the Tribunal
S. No. Headings Amount awarded
1 Monthly Income =Rs.5600/
2 1/3rd deduction on account of =Rs.1867/
personal and living expenses
3 Loss of dependency =3733x12x16=7,16,736/
4 Loss on account of parental =1,20,000/
consortium (appellant Nos.2 to 4 only)
5 Funeral expenses =15,000/
6 Loss of estate =15,000/
Total compensation awarded =8,66,736/
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Modified/enhanced compensation
S. No. Headings Amount awarded
1 Annual income =9100×12=1,09,200/
2 1/4th deduction on account of =Rs.27300/
personal and living expenses
3 Loss of dependency =81,900×16=13,10,400/
4 Loss on account of parental =1,60,000/
consortium (appellant Nos.1 to 4)
5 Funeral expenses =15,000/
6 Loss of estate =15,000/
Total compensation awarded =15,00,400/
27. Accordingly, both the appeals are allowed and the
awards passed by the Tribunal shall stand modified to the
aforesaid extent.
28. Thus, it is provided that appellant Nos.1 to 4 in Mac
App No.49/2021 shall be entitled to the enhanced
compensation of Rs.33,34,960 (rupees thirty-three lacs
thirty-four thousand nine hundred and sixty only) along
with interest @7.5 per annum from the date of filing of the
claim petition till final realization of the awarded sum.
Appellant No.5-Mohammad Maqbool Malik shall not be
entitled to any compensation. Appellant No.1-Shahid Shafi,
who is now settled in life as per the evidence on record as
he has already been gainfully employed, shall be paid an
amount of Rs.4.00 lacs (rupees four lacs) out of the awarded
sum and the balance amount shall be shared equally by
appellant Nos.2 to 4.
29. Similarly, the appellant in Mac App No.48/2021 are
held entitled to enhanced compensation in the amount of
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Rs.15,00,400 (rupees fifteen lacs four hundred only) along
with interest @7.5 per annum from the date of filing of the
claim petition till final realization of the awarded sum.
Appellant Shahid Shafi shall be paid to an amount of
Rs.4.00 lacs (rupees four lacs) out of the awarded sum and
the balance amount shall be shared by appellant Nos.1 to
3 in equal proportions.
30. The liability to satisfy both the awards shall be shared
equally by two respondent Insurance Companies.
31. The appeals shall stand disposed of in above terms.
32. A copy of this judgment be sent to the Tribunal for
information.
(Sanjay Dhar)
Judge
SRINAGAR
27 .12.2024
“Bhat Altaf-Secy”
Whether the order is reportable: Yes
Mohammad Altaf Bhat
Mac Appeal No.49/2021
I attest to the accuracy and
authenticity of this document
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