M. G. Marg, P.O. & P.S. Gangt ok, East Sikkim . … Appe lla v. Sm t . Nirlat a Sharm a, W/ o Lat e Mahadeo Sharm a
Case Details
TH E H I GH COURT OF SI KKI M : GAN GTOK ( Civ il Appellat e Jur isdict ion) D ATED : 2 3 - 0 8 - 2 0 1 3 CORAM H ON ’BLE M R. JU STI CE S. P. W AN GD I , JUD GE M AC App. N o.0 4 of 2 0 1 3 The Br anch Manager, The New I ndia Assur ance Com pany Lt d., Branch Office : M. G. Marg, P.O. & P.S. Gangt ok, East Sikkim . … Appe lla n t 1. 2. 3. 4. Versus Sm t . Nirlat a Sharm a, W/ o Lat e Mahadeo Sharm a
Legal Reasoning
Shri Anil Sharm a, S/ o Lat e Mahadeo Sharm a Shri Am it Sharm a, S/ o Lat e Mahadeo Sharm a All resident s of Tem i Tark u, P.O. + P.S. Tem i, Sout h Sikkim . Shri Milan Pradhan, S/ o Shri Y. N. Pradhan, C/ o ‘Bhansari Cot t age, Church Road, P.O. & P.S. Gangt ok, East Sikkim . … Re spon de n t s For Appellant : Mr. Sudesh Joshi, Advocat e. For Respondent s No.1 t o 3 : Ms. Sunit a Pradhan and Mr. Thinlay Bhut ia, Dorj ee Advocat es. For Respondent No.4 : Mr. B. N. Sharm a, Advocat e. M AC App. N o.0 4 of 2 0 1 3 2 J U D G M E N T ( ORAL) Wangdi, J. The lim it ed quest ion inv olved in t his Appeal is t hat whet her t he Learned Claim s Tribunal grant ing com pensat ion against fut ure prospect s in t he im pugned j udgm ent was sust ainable in v iew of t he decision of t he Hon’ble Suprem e Court in Re shm a Kum a r i a nd Ot he r s vs. M a nda n M oha n a nd Anot he r : 2 0 1 3 ( 5 ) Sca le 1 6 0 wherein it has been held t hat t here should be no addit ion t o incom e for fut ure prospect s where t he age of t he deceased is m ore t han 50 years as held in Sa r la Ve r m a ( Sm t ) a nd Ot he r s vs. D e lhi Tr a nspor t Cor por a t ion a nd Anot he r : ( 2 0 0 9 ) 6 SCC 1 2 1 . For convenience, t he relevant port ion of t he j udgm ent is set out below: - “3 5 . Wit h r egar d t o t he addit ion t o incom e for fut ur e pr ospect s, in Sar la Ver m a [ 2009 ( 6) SCC 121] , in Susam m a t his Cour t has not ed ear lier decisions Thom as [ 1994 ( 2) SCC 176] , Sar la Dixit [ 1996 ( 3) SCC 179] and Abati Bezbar uah [ 2003 ( 3) SCC 148] and in paragr aph 24 of t he Repor t held as under : t o incom e of t he act ual salar y “ 24. ……. I n view of t he im ponder ables and uncer taint ies, w e ar e in favour of adopt ing as a r ule of t hum b, an addit ion of 50% of act ual t he salar y deceased t owards fut ur e prospect s, w here t he deceased had a per m anent j ob and was below 40 year s. ( Wher e t he annual incom e is in t he t axable range, t he w or ds “ act ual salar y” should be r ead as “ act ual salar y less t ax” ) . The addit ion should be only 30% if t he age of t he deceased w as 40 to 50 years. Ther e should be no addit ion, w her e t he age of t he deceased is m or e t han 50 indicat e a year s. Though t he evidence m ay M AC App. N o.0 4 of 2 0 1 3 3 differ ent per cent age of incr ease, it is necessar y t o st andar dise t he addit ion t o avoid differ ent yar dst icks being applied or differ ent m et hods of calculat ion being adopt ed. Wher e t he deceased w as self- em ployed or was on a fixed salar y ( w it hout pr ovision for annual incr em ent s, et c.) , t he act ual t he cour t s w ill usually incom e at t im e of deat h. A depar t ur e t her efr om should be m ade only in r ar e and special except ional cir cum st ances.” t ake only involving cases t he 2 . I t is undisput ed t hat in t he present case t he deceased was m ore t han 50 years of age, i.e., 53 year s t o be precise. Of course, Ms. Sunit a Pradhan, Learned Counsel, appearing on behalf of t he Respondent s No.1 t o 3, subm it s t hat t he am ount of Rs.2 lakhs ( Rupees t w o lakhs) only against fut ure prospect s was grant ed by t he Learned Claim s Tribunal in considerat ion of t he fact t hat t he deceased was a Governm ent servant and had at least 5 years of serv ice left before his superannuat ion when he died and furt her t hat t his issue was not raised in t he proceedings before t he Learned Claim s Tr ibunal. Alt hough t here appears t o be subst ance in t his subm ission but consider ing t he fact t hat t his is purely a quest ion of law t here is no im pedim ent for t his Court t o t ake not ice of t his at t his st age. Mr. Sudesh Joshi, Learned Adv ocat e, appearing on behalf of t he Appellant , subm it s t hat as t he Learned Claim s Tr ibunal lacked t he very j urisdict ion t o award such com pensat ion it was liable t o be set aside. M AC App. N o.0 4 of 2 0 1 3 4 3 . I t is no doubt t rue t hat ideally t he Appellant ought t o have brought t his posit ion of law before t he Learned Claim s Tr ibunal but , t hat by it self does not absolve t his Court of it s responsibilit y t o follow t he rat io once it is brought t o it s not ice. Thus, upon considerat ion of t he rat io laid down in Sa r la V e r m a ( supr a ) which has been adopt ed in Re shm a Kum a r i ( supr a ) , t he com pensat ion awarded against fut ure prospect s in t he im pugned j udgm ent undoubt edly appears t o be unsust ainable and, t herefore, nat urally requires t o be set aside. 4 . I n v iew of t he above, t he com pensat ion of Rs.2 lakhs ( Rupees t wo lakhs) only awarded by t he Learned Claim s Tr ibunal against fut ure prospect s is set aside. 5 . Since t he pay m ent of t he com pensat ion rem aining undisput ed bet ween t he part ies hav ing been paid t o t he Respondent s No.1 t o 3, not hing furt her rem ains for det erm inat ion in t his Appeal. 6 . 7 . I n t he result , t he Appeal is allowed. The j udgm ent passed by t he Learned Mem ber, Mot or Accident Claim s Tribunal, East and Nort h M AC App. N o.0 4 of 2 0 1 3 5 Sik k im at Gangt ok , st ands m odified t o t he ext ent alluded t o ear lier. 8 . 9 . No order as t o cost s. Let a copy of t his j udgm ent and t he Original records be t ransm it t ed fort hw it h t o t he Learned Claim s Tribunal for com pliance. Sd/- ( S. P. W a ngdi ) Judge 2 3 - 0 8 - 2 0 1 3 Approved for report ing : Yes I nt ernet : Yes ds