04 07.04.2021 WPA 13806 of 2019 (Via Video Conference) Sonali Hatua Giri Vs. Union of India and others Mr. Sankar Nath Mukherjee, Mr. Niraj Gupta, Mr. Priyabrata Shah, Mr. Aditya Biswas ...for the petitioner Mr. Y. J. DAstoor, Mr. Rudraman Bhattacharya, Mr. Anuran Samanta ...for the Union of India The challenge presently under consideration is to the vires of Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks issued by the Ministry of Home Affairs, FFR division. The said Scheme is for disbursement of pension to freedom fighters under the Central Samman Pension Scheme. The guidelines-in-question provide the modalities of such disbursement. The petitioner is the daughter of a deceased freedom fighter, who had been getting pension under the said Scheme for the Swantrata Sainik Samman Pension till his demise on December 4, 2012. The petitioner was married but subsequently got a decree of divorce on March 19, 1999 and has since been 2 residing at her paternal house along with her son and was dependent on her father since she had foregone her right of alimony from her husband. The petitioner submits that after the demise of her father, her widowed mother also applied for grant of such pension in her favour. However, such representation was kept pending for an inordinately long time and ultimately the mother of the petitioner died on February 18, 2019 as well, leaving behind her son and daughter, that is, the writ petitioner. Subsequently, the petitioner also made a representation before respondent no.5 requesting fordisbursal of family pension in her favour as a dependent daughter. However, such request has not yet been considered till date. At the outset, the challenge to the vires of Clause 5.2.5 is required to be considered, since the decision on the same will affect the outcome of the writ petition otherwise. The relevant provision in the Guidelines is found in Clause 5.2 thereof, which deals with transfer of pension to spouse(s)/daughter(s). Clause 5.2.3 stipulates that the spouse/daughter must fulfil the twin conditions of being "unmarried" and "having no independent source of income". Clause 5.2.5, on the other hand, stipulates that widowed/divorced daughter is not eligible for Samman pension. Learned counsel for the petitioner contends that Clause 5.2.5 excludes widowed/divorced daughters from entitlement, although "unmarried" daughters have been included. Such discretion is without any reasonable basis and violates Article 14 as well as Article 39 of the Constitution of India. Learned counsel for respondent no.1 argues that there are intelligible differentia as to why widowed and/or divorced daughters are excluded from the benefit of the Scheme. It is submitted that there is a presumption of constitutionality and the validity of a legislation can only be struck down when the classification is unreasonable and arbitrary. For such proposition, learned counsel relies on Municipal committee, Patiala Vs. Model town Residents Association, reported at (2007) 8 SCC 669, wherein it was held that there is a presumption of constitutionality and in testing the validity of the law, the Court can take into consideration matters of common knowledge and, at the same time, the Court must presume that the legislature understands and correctly appreciates the needs of its own people. While elaborating the intelligible differentia of excluding widowed and/or divorced daughters from the benefit of the Scheme, learned counsel argues that, as far as widows are concerned, under Section 8 of the Hindu Succession Act, 1956, a widow is a Class I heir, including the widow of a pre-deceased son. As such, a widow is entitled to inherit the properties of the husband and/or the father-in-law. In the event the husband does not have any property and the father-in-law is alive and the widow is unable to maintain herself, under Sections 19 of the Hindu Adoption and Maintenance Act, 1956, she is entitled to maintenance as a widowed daughter-in-law. Section 2 of the Act clarifies that this would also cover Buddhists, Jains and Sikhs. As far as a Muslim widow is concerned, she is entitled to dower which is recovered by wife or widow or divorcee or her heirs if she is dead. Under the Indian Succession Act, 1925, Section 32 provides that the property of a husband devolves on the widow. Such provision covers all persons who are not Hindus, Mohammedans, Buddhists, Sikhs or Jains. There is specific provision in Sections 50 and 51 of the said Act regarding property of the deceased devolving on the widow as far as Parsis are concerned. Regarding divorced women, it is submitted that Hindu women are entitled to permanent alimony from the husband under Section 25 of the Hindu Marriage Act, which also include Buddhists, Jains and Sikhs apart from Hindus. Under Section 3(1)(a), read with Section 4, of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman can claim maintenance even after expiry of iddat period. A divorced Parsi woman, it is submitted, is entitled to permanent alimony and maintenance from the husband under Section 40 of the Parsi Marriage and Divorce Act, 1936. A divorced Christian woman, on the other hand, is entitled to permanent alimony and maintenance from the husband under Section 37 of the Indian Divorce Act, 1969. As such, a widowed and a divorcee daughter are entitled to maintain themselves as they have been provided sufficient benefits under various statutes, which are not available to an unmarried daughter. As such, the classification of widowed and divorcee daughters on the one hand and unmarried daughters on the other is reasonable. That apart, it is argued that the object of the pension Scheme is to provide subsistence allowance only to the dependents of the freedom fighters who are otherwise not entitled to get the benefit from any other person. By placing reliance on an unreported Order dated July 29, 2016 passed by the Punjab and Haryana High Court in Letters Patent Appeal No.171 of 2015 (Khajani Devi Vs. Union of India and others), learned counsel submits that the benefit of the Scheme is admissible to a divorced daughter. A two- Judge Bench of the Supreme Court, by an Order dated September 27, 2019 passed in SLP (C) No. 02353 of 2019 (Union of India and others Vs. Khajani Devi) was pleased not to interfere with the same on the view that the order adopts a progressive and socialist constructive approach. However, the Himachal Pradesh High Court had taken a contrary view in an Order dated July 18, 2019 passed in CWP No.1504 of 2019 (Tulsi Devi Vs. Union of India and another). A three-Judge Bench of the Supreme Court, by an Order dated May 28, 2020 passed in an SLP arising out of Diary No.7497 of 2020 (Tulsi Devi Vs. Union of India and another) was pleased to issue a notice in the matter. Such issue is, thus, pending adjudication before the Supreme Court and it is argued that judicial decorum warrants that since the Supreme Court is in seisin of the mater, this Court should not take any view at this stage. Learned counsel for the petitioner contends in reply that in Tulsi Devi (supra), the Himachal Pradesh High Court did not consider the judgment of Khajani Devi (supra) rendered by the Punjab and Haryana High Court, which was upheld by the Supreme Court in a Special Petition, bearing No.17706 of 2017. Thus, it is submitted that the law, as it stands at present, is that divorced daughters are also entitled to the benefit of the scheme. As regards the contention of respondent no.1 that judicial decorum ought to constrain the hands of this Court due to pendency of a similar issue before the Supreme court, such contention is not acceptable, at least in the present case, since mere pendency of challenge in a different case cannot have any direct bearing on the adjudication at hand. That apart, in view of the implicit urgency involved, since the petitioner has no income to sustain herself and her minor son without any income, the matter pertains to her livelihood and cannot be stalled indefinitely for the adjudication of the matter pending before the Supreme Court. Although the dismissal of a Special Leave Petition by the Supreme Court does not tantamount to affirmance of an order on merits, which would lend binding force to such order as the law of the land is declared by the Supreme Court, the Punjab and Haryana High Court had taken a clear view that divorced daughters are also entitled to benefit under the Scheme-in-question. The view taken by the Himachal Pradesh High Court did not lay down any ratio on the vires of Clause 5.2.5 and/or decide the question which has fallen for consideration before this Court. In the said case, being Tulsi Devi (supra), the Himachal Pradesh High Court held that the "Swantrata Sainik Samman Yojana" has been launched as a mark of respect to the freedom fighters whereas in the case of armed force personnel or the Central/State Government pensionaries/employees, the pension is not a 'bounty', but a property. Thus, a line of distinction was drawn between such pensions and the pension payable to freedom fighters and their heirs. With utmost respect, even without going into the question of parity with other pension schemes, the view of the Punjab and Haryana High Court is more applicable in the present case. In the said judgment, it was held that it would be a travesty to exclude a divorced daughter when an unmarried daughter finds mention in the list of eligible dependents. It was further held that there would be no rationality to the reason for such distinction, particularly when the divorced daughter is the sole eligible dependent and qualifies for the benefit. It was held that a beneficial scheme such as the one in hand should not be construed on a strict interpretation, which tends to disapprove the claims of the benefit, to result in virtual frustration or negation of the laudable motive of the scheme itself. In my view, the ratio laid down by the Punjab and Haryana High Court in Khajani Devi (supra) is also applicable in the present context and appeals to the judicial conscience on a higher footing than the Himachal Pradesh report. A combined reading of Article 14 of the Constitution of India, which is a fundamental right of equality before the law, and Article 39(a), ensures that the State is to direct its policy towards securing such end. Clause (d) of Article 39 also ensures that there is equal pay for equal work for both men and women. Although Article 39 is a Directive Principle of State Policy, not directly enforceable in law, the fundamental rights of the citizens of India ought to be considered in the context of the directive principles to lend teeth to the intentions of the framers of the Constitution of India. In view of Clause 5.2.3 having conferred eligibility on spouses/daughters who are unmarried and have no independent source of income, Clause 5.2.5 of the guidelines is ex facie irrational, since it excludes widowed/divorced daughters from the eligibility. The scheme was formulated as "a token of honour by a grateful nation to the honorable freedom fighters and their dependents" as per its own language. It is not necessary that the term 'dependents' as used in the scheme has to be in consonance with Succession Acts of various religious communities. However, even if we take into consideration the Acts- in-question, no line of distinction has been drawn between divorced and unmarried daughters. For example, if we read Sections 8 and 9, in conjunction with the Class I of the Schedule to the Hindu Succession Act, 1956, it will be evident that the Class I heirs include not only the widow but also the daughter of the deceased. Hence, no line of distinction has been drawn between "unmarried' and "divorced" daughters. A criterion which defies logic cannot be "intelligible" in the true sense of the term. A bare perusal of Clause 5.2.3 of the guidelines- in-question indicates that there is already a safeguard against abuse of the provisions of the scheme by including the yardstick, "having no independent source of income" as a condition of eligibility. Such qualification circumscribes the eligibility of unmarried daughters. Since, as per the arguments of the respondent no.1, an analogy has been sought to be drawn with the respective Matrimonial Laws of different communities, we ought to look into the efficacy of such remedies on the touchstone of efficacy. All the recourses and legal remedies open to divorced and widowed daughters require long-drawn litigation and mere rights available in the statute books. In order to get the fruit of such litigation, a widowed/divorced daughter has to wait till the end of litigation. The amount actually granted to such daughter by the court of law also acquires relevance vis-à-vis her subsistence requirements. Legal provisions cannot meet the pangs of hunger and/or urgent necessity of sustenance of human beings. As stipulated in case of unmarried daughters, widowed/divorced daughters also qualify as unmarried but have been excluded from the pension scheme. In the event Clause 5.2.5 was not there, the expression 'unmarried' could very well include within its purview widowed/divorced daughters of the pension holders as well, since their marital status would also be on an equal footing with unmarried daughters. The mere possibility of a legal remedy, or an order of court granting meager amount as maintenance is not adequate to meet the necessities of widowed/divorced daughters but they may also be dependents of their father, being the freedom fighter, in the event they do not/cannot opt for taking recourse to legal remedies and do not have income sufficient to maintain themselves. Since the rider, "having no independent source of income" already qualifies unmarried daughters in Clause 5.2.3 of the guidelines, such test acts as a sufficient safeguard to prevent abuse of the pension scheme by widowed/divorced daughters of the freedom fighter who otherwise have an independent source of income, be it from alimony/maintenance or from some other source. On the other hand, it may very well be that a spinster daughter of the freedom fighter has an independent income of her own, even if she does not have legal remedy as available to the widowed/divorced daughters from their matrimonial family. Since the aforesaid safeguard is already existing, the blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India, which enshrines the guarantee of equality to all citizens. In the present case, the classification is worse than gender bias, since unmarried daughters have been included within the scheme but widowed/divorced daughters who stand on the same footing, having no independent source of income, have been excluded. Even going by the Succession Acts, daughters, irrespective of qualification, are entitled to the property of the deceased as heirs. Hence, the mere existence of a right in a statute book to get maintenance from the matrimonial family is not at all sufficient to meet the financial requirements of those widowed/divorced daughters who do not have any income. Having or not having income is undoubtedly an intelligible differential, which can easily be incorporated if widowed/divorced daughters are also brought within the purview of 'unmarried' daughters. Thus, as in the event an unmarried daughter who has no income is ineligible for the pension, widowed/divorced daughters stand on a similar footing as daughters of the deceased and shall not be eligible anyway if they have any independent source of income, which can very well be alimony or maintenance as well. However, as far as daughters having no independent source of income are concerned, widowed/divorced daughters stand on an equal footing with a spinster daughter as heirs of the deceased freedom fighter. The marital status of all of them is "unmarried". Thus, the criterion of exclusion of widowed/divorced daughters, as sought to be projected by respondent no.1, is untenable in the eye of law. As such, Clause 5.2.5 is patently violative of Article 14 of the Constitution of India, which ensures equality among people standing on the same footing, in the absence of reasonable classification or intelligible differentia. In view of the above discussions, the preliminary point is decided by declaring Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks, issued by the Ministry of Home Affairs, FFR Division vide Memo No.45/03/2014 - FF(P) ultra vires, being violative of Article 14 of the Constitution of India. The expression "unmarried" as used in Clause 5.2.3 of the said Guidelines shall also include widowed/divorced daughters as eligible for the Sainik Samman Scheme-in-question, provided they satisfy the other test of having no independent source of income. Further orders on the merits of the writ petition shall be passed on the next returnable date. (Sabyasachi Bhattacharyya, J.)


$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 31st January, 2020 Date of decision: 19th March, 2020 + CM(M) 1448/2019, CM APPLs. 43987/2019 & 43988/2019 DEV RAJ & ORS ..... Petitioners Through: Mr. B.B. Gupta, Senior Advocate with Mr. Devesh Pratap Singh, Advocate. (M:9999814755) versus SATPAL GULIA ..... Respondent Through: Mr. R.K. Saini, Ms. Bhavana Jain and Ms. Tavishi Vats, Advocates. (M:8447641995) CORAM: JUSTICE PRATHIBA M. SINGH JUDGMENT Prathiba M. Singh, J. 1. The Petitioners - Shri Dev Raj, Shri Shiv Raj and Shri Hans Raj were the Plaintiffs (hereinafter, "Plaintiff Nos. 1-3") in a suit for permanent injunction in respect of property bearing No. 223, Village Mangolpur Kalan, Delhi (hereinafter, "suit property"). In the said suit, an interim order was passed in the application under Order XXXIX Rules 1 and 2 CPC on 15 th February, 1994 to the following effect: - "4. I have perused the report of the local commissioner. The local commissioner has categorically stated in his report that he served a notice upon the defendant with regard to his appointment to execute the commission but the defendant deliberately refused to accept the notice. The defendant deliberately and intentionally did not take part in the proceedings held by the local commissioner. It is reported by the local commissioner in his report that the defendant was constructing a wall with the help of the police and the wall was just adjoining the doors of the house of the plaintiffs, which were mostly about to close. After carefully considering the arguments of the plaintiff counsel and in view of the nature of the suit and inasmuch as the documents placed on record by the plaintiff counsel in support of his contention particularly when the plaintiffs claimed themselves to be the owner of the suit property_____house and whereas the defendant has failed to appear despite service and information particularly given by the local commissioner who executed the commission after giving notice to the defendant and since the doors of the house of the plaintiffs are closed on account of raising the wall and whereas it has become difficult for the plaintiffs to enter in the back portion of the house or to open the doors or to tether the cattle. I am of the view that these are the exceptional circumstances where the court must intervene and the Court should not hesitate even to grant the relief which is in the nature of the mandatory form. I accordingly allow the application moved by the plaintiffs as the defendant has not appeared despite knowledge and I order that the walls raised in front of the doors of the house of the plaintiffs be removed in order to facilitate the plaintiffs for their egress and ingress in the premises. In case the hurdle of raising the wall in front of the doors is not removed, the plaintiffs are likely to suffer irreparable loss. The plaintiffs shall remove the wall, raised by the defendant as alleged in front of the doors of the house and if necessity be the plaintiffs shall take the assistance of the local police. The local police is also directed to get this order implemented. I am of the considered view that since the defendant is absent despite knowledge inasmuch as where the process has not been received in the court issued to the defendant in pursuance to order contained in order 39 rule 3 CPC I in the interest of justice once again order that the defendant be again served with the restraint orders on filing of P.F. R.C. etc. for 28.2.94." The Court, by way of an interim mandatory order, had thus directed removal of the wall so as to provide access to the Plaintiffs on the basis that the Plaintiffs were the owners of the property. 2. The said suit, however, came to be finally dismissed by the ld. Trial Court vide judgment/decree dated 24th December, 1999, which reads as under: - "17. In view of the foregoing discussions and facts and circumstances of the case and on perusal of the material placed on record, I am of the view that the plaintiff have totally failed to prove that they are the owners and entitled to possess the suit property, falls in the back portion of their houses and also failed to prove that they are entitled to open the doors towards the suit land i.e. the land pertains to khasra No.70/1/1, 70/34 and 70/32 as shown in the site plan not belonging to them.Whereas the wall which was in existence at the time of filing of the suit was demolished in pursuance of ad interim order dt. 15.2.94, therefore, the suit property be restored to its original condition. 18. In view of the foregoing discussions and facts and circumstances of the case, I accordingly dismiss the suit of the plaintiffs, with cost of Rs.5000/- Decree sheet be prepared accordingly. File be consigned to R/R." At the final stage, the trial court came to the conclusion that the Plaintiffs had failed to establish ownership and thus, while dismissing the suit, directed the re- construction of the wall which was demolished and restoration of the same to its original condition. 3. The said judgment/decree was challenged by Plaintiff Nos. 1-3. The first appeal was dismissed on 16th May, 2018 and the second appeal was dismissed on 14th September, 2018. In effect, the original judgment/decree was maintained by both the Appellate Courts. 4. Considering the nature of the judgment/decree which was passed by the Trial Court, the Respondent/Defendant (hereinafter, "Defendant") in whose favour a final order of restoration was passed by the Trial Court, sought execution of the judgment/decree. The Executing Court considered the judgment/decree and on 26th April, 2019, dismissed the objections filed by Plaintiff Nos. 1-3 and directed as under: "20. The suit was filed in year 1993 and JDs got into the illegal possession of the suit property on 30.03.1994 and since then they are in the illegal possession of the suit property. JDs are in the possession of the suit property for the last 25 years and for that period DH has been deprived of the enjoyment of his immovable property. JDs are reaping unjust benefits from the suit property for the last 25 years and on the other hand, DH is being deprived of enjoying the suit property and of profit generated from it. Therefore, equity demands that JDs should pay damages / mesne profits to the DH for the period they were in illegal possession of the suit property and compensate the DH. 21. The photographs filed alongwith the execution petition clearly shows that suit property is used for commercial purpose i.e. as a godown for keeping marble slabs and stones. Judicial notice is taken of the fact that village Mangolpur kalan i.e. the area where the suit property is located is a well known market of marble slabs. Therefore, in the opinion of the Court, the DH is entitled to damages / mesne profit of Rs. 1 lac for each year for which the suit property was in the possession of the JDs. Hence, DH is entitled to damages / mesne profit of Rs. 25 lacs from the JDs. DH is entitled to recover the damages / mesne profit of Rs. 25 lacs only after depositing the requisite Court fee. In case, JDs did not comply with this order then DH can get the order executed through the Court so that the order can be implemented in letter and spirit. Application disposed of accordingly." Thus, the executing court came to the conclusion that on the basis of the initial interim injunction which was granted in favour of the Plaintiffs, they continued to enjoy benefit of the order and possession of the property since 1994, while the Defendant was deprived of the enjoyment of the property, though finally the suit was dismissed. Thus, the court observed that the Defendant ought to be compensated for enjoying the property during the said period and directed the payment of damages/mesne profits of Rs. 25 lakhs. In order to implement its order, the Executing Court appointed a bailiff vide a separate order of the same date i.e., 26th April 2019, in the following terms: "Vide separate order passed today, the objections filed by the Jds has been dismissed and it was held that DH is entitled to erect the western boundary wall upto the height of about Nine feet, in front of four doors as shown A,B,C and D in the site plan Ex. PW 1/A and also entitled to the possession of the suit property and also entitled to have the suit property in the same condition as it was in at the time when the suit was filed and as shown in photographs no. 5 and 6 filed on 24.09.2018. Counsel for DH/defendant submitted that original position of the suit property be restored. Bailiff of this court is directed to restore the original position of the suit property i.e. erecting a wall in front of four doors as shown at A,B, C and D in the site plan attached herewith which was demolished in pursuance of court order dated 15.02.1994 and file report on the next date of hearing. Issue warrants of possession against the JD qua the suit property i.e. House No. 176 having area of 1160 sq. yards approximately in Khasra No. 70/1/1, Khasra No. 70/31, 70/32, Village Mangol Pur Kalan as shown at point ABJI in the site plan Ex. PW 1/A for NDOH on filing of PF. ................ Further permission to break open the lock is also granted if it is required to execute the warrant." 5. Plaintiff Nos. 1-3 thereafter preferred an appeal which has been dismissed vide the impugned order dated 16th September, 2019 on the ground that the same is not maintainable. 6. Mr. B.B Gupta, ld. Sr. Counsel appearing for Plaintiff Nos. 1-3 submits that on the issue of maintainability of the appeal, the Appellate Court was completely wrong in law. He submits that even objections under Section 47 CPC have to be treated as those filed under Order XXI Rule 97 CPC as the term "any person" in Rule 97 includes the Judgment Debtor. Since the objections under Order XXI Rule 97 CPC have to be decided under Rule 98 and are appealable under Rule 103, the finding of the Appellate Court is erroneous in law and the appeal has to be decided on merits. He relies on the following judgments - i. Murti Bhawani Mata Mandir Represented Through Pujari Ganesh Lal (Dead) Through Legal Representative Kailash v. Ramesh and Others, (2019) 3 SCC 707 ii. Bhanwar Lal v. Satyanarain and Another, (1995) 1 SCC 6 iii. Asgar & Others v Mohan Verma & Others 2019 (3) CLJ 16 (SC) iv Babulal v Raj Kumar & Ors. (1996) 3 SCC 154 7. On the other hand, Mr. R.K. Saini, ld. counsel appearing for the Defendant submits that this is a case of gross abuse by Plaintiff Nos. 1-3 who ensured that they enjoyed the property in question,by way of interim relief in a suit which was finally dismissed. He submits that Plaintiff Nos. 1-3 deliberately delayed the adjudication of the first appeal and have, in effect, enjoyed the property for almost 20 years after the passing of the decree. It was under these circumstances, that the Court has the power of restitution under Section 144 CPC wherein the Court, while ensuring that the benefit of the interim order which was originally passed is no longer enjoyed by Plaintiff Nos. 1-3, directed construction of the wall, as also payment of mesne profits. He submits that such an order would not be appealable, inasmuch as the Judgment Debtor was all along a party to the suit itself, and thus the order passed dismissing the objections by the Judgment Debtor would not be appealable as the same was under Section 47 CPC. 8. In order to decide whether the order dated 26th April, 2019 was an appealable order or not, what is important to be seen is the nature of the order which was passed. The Executing Courtconsidered the entire issue of restitution which was directed by the final judgement and also held that since the Judgment Debtors had come into possession of the property due to the interim/mandatory injunction which was passed by the Court on 15 th February, 1994, and the suit having been dismissed resulting in the said order being vacated, the Court ought to put the Defendant in the same position as it was, prior to the filing of the suit. In the Court‟s opinion, restitution was in two forms-  First, by restoring the original position of the property i.e. by erecting a wall which had earlier been demolished pursuant to the interim order and  Secondly, by directing the Judgment Debtors to pay damages for the occupation of the said property from 1994 till 2019 i.e. a period of almost 25 years. 9. The CPC contemplates various orders that can be passed in execution proceedings. Whenever there are questions which arise between the parties to the suit in respect of either the execution, discharge or satisfaction of the decree, the same can be determined by the Executing Court itself under Section 47 CPC. Section 47 reads as under: "47. Questions to be determined by the Court executing decree. - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation I. - For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II. - (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree with the meaning of this section.]" 10. There is no dispute as to the legal proposition that if objections are filed in execution proceedings, if the Court is of the opinion that there are any complex facts evolved, evidence would have to be recorded. Bhanwar Lal (supra) cited by the Plaintiffs, holds that under Order XXI Rule 97 CPC the term „any person‟ would include a Judgment Debtor. However, the nature of the order needs to be considered to see whether an order passed by the executing court is one under Order XXI Rule 97 CPC, where the decree holder faces obstruction or resistance, or is an order which is implementing the decree. The mandatory nature of the injunction which was granted in the final judgment/decree has resulted in warrants of possession being issued by the Executing Court, and rightly so. It is the settled position that dismissal of a suit also constitutes a decree. The dismissal of the suit in the present case is not a mere dismissal, but a dismissal which entailed a final order by the Court, that the Defendant needs to be restored possession of the property, which was occupied by the Plaintiffs due to the operation of an interim order of the Court itself. Such an order, is clearly one that is passed exercising the inherent powers of the Court to restitute a party to the same position as he or she was at the time when the suit was filed when, the status quo had been changed due to an order passed by the Court, and ultimately the Court has dismissed the suit itself. The Executing Court was merely implementing the original judgment/decree. 11. The judgment in Babulal v. Raj Kumar And Others (supra) isclearly distinguishable on facts, inasmuch as in the said case, the party objecting to the execution of the decree was not a party to the original judgment/decree for specific performance. The executing court had not conducted any enquiry into the objections filed by him, and it was in that context that the Supreme Court held that the executing Court ought to have enquired into the matter. The facts in the present case are different, inasmuch as the Plaintiffs who are objecting to the execution of the decree were party to the suit since inception. They enjoyed the interim order which was originally passed by the Court. The judgment/ decree, to which they were a party has attained finality. 12. Even in Asgar & Ors v. Mohan Varma & Ors.(supra)the parties who were objecting to the decree, were not parties to the original judgment and were strangers to the decree. Since the objectors set up an independent claim, the Supreme Court held that the executing court had to decide the issue as to whether the claim was justified or not. The Supreme Court had observed as under: "The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder." Thus, the executing court has very vast powers while deciding an execution. The intention of the Code as also the judgements has been to ensure that delays are not caused in execution of decrees and multiplicity of proceedings is avoided, by permitting the executing courts to decide the issues even relating to title if raised. 13. The powers of the Executing Court are quite broad. Under Order XXICPC, the various steps that can be taken by the Executing Court for implementing a decree are stipulated. The same includegranting of set off, sale of the property, auctioning of the property, execution of a document, endorsement of immovable property, taking custody of movable property, directing oral examination of a Judgment Debtor, attachment of agricultural produce, orders against garnishee, attachment of salaries, attachment of partnership property, attachment of immovable property, conduct of sale by public auctioning, etc. In the case of immovable property, if there is any resistance, by any person including the Judgment Debtor, the Decree Holder can approach the Executing Court, which shall then pass orders under Order XXI Rule 98 CPC. Any order passed at the behest of a Decree Holder under Order XXI Rule 97 and 98 CPC would constitute a decree under Order XXI Rule 103 CPC. The same would then be appealable. If a person is wrongly dispossessed, such person can approach the Executing Court under Order XXI Rule 99 CPC for orders to be passed in terms of Order XXI Rule 100 CPC, which would also constitute a decree under Order XXI Rule 103 CPC. 14. The Plaintiffsargue that the orders passed by the Executing Court, first by appointing a bailiff to restore the original position of the suit property, and secondly by directing payment of damages for illegal possession are both orders under Section 47 CPC, and hence no appeal lies to the ADJ from the said order. 15. The scheme of Order XXI Rules 97 to 106 CPC is quite clear. If there is obstruction or resistance by any person, the Decree Holder approaches the Executing Court under Order XXI Rule 97 CPC. If the person in occupation has been wrongly dispossessed, so long as that person is not the Judgment Debtor, the Executing Court can be approached under Order XXI Rule 99 CPC. What happens if the Judgment Debtor who is bound by the decree is dispossessed? Would such dispossession be covered under Order XXI Rule 99 CPC or under Section 47 CPC? This issue needs to be examined. 16. The nature of the order passed in the present case has the following elements: i) the order is against the Judgment Debtors; ii) it is of a mandatory nature i.e., the Judgement Debtors have to restore the property to its original condition. The exact wording of the final decree, while dismissing the suit is as under: "....Whereas the wall which was in existence at the time of filing of the suit was demolished in pursuance of ad interim order dt. 15.2.94, therefore, the suit property be restored to its original condition....." iii) the Plaintiffs did not comply with the same hence the Defendant sought execution; iv) the Judgment Debtors were the Plaintiffs in the original suit and have enjoyed possession; v) the executing court thus directs the bailiff to restore possession from the Judgment Debtors; vi) rightly or wrongly, the Executing Court has directed the Judgment Debtors to pay damages. 17. Clearly, it is the Judgment Debtors who are sought to be dispossessed. By a simple reading of Order XXI Rule 99, it is clear that the impugned order is not an order under the said provision. 18. Further, the order that has been passed by the executing court is not in respect of obstruction or resistance by the Judgment Debtors for which the Decree Holder has approached the Executing Court. The Judgement Debtors have simply failed to comply with a mandatory order or mandatory injunction. Thus, this is not an order under Order XXI Rule 97 either. In the present case, the Decree Holder has sought orders under Order XXI Rule 32 CPC for enforcement of a mandatory injunction which directed restoration of the wall to its original condition. The executing court holds that the said provision does not apply. 19. An order like the impugned order, would, in the opinion of this Court be an order under Section 47 CPC i.e., it would relate to execution, discharge or satisfaction of the decree by the Executing Court. The final decree directing restitution and the same being given effect to by the executing court, would also be an order relating to the implementation of the decree and not one under Order XXI Rule 97 CPC which contemplates resistance or obstruction to the execution of a decree. 20. The ld. ADJ exercising appellate jurisdiction, has also observed that the order passed by the Executing Court is under Section 47 and is not appealable under Order XXI Rule 103. The observations of the ld. ADJ are as under: "12. Since the maintainability of the appeal has been seriously challenged by learned counsel for the respondent, I am of the view that it will be appropriate to test the maintainability of the appeal before going into merits. 13. The objections which were filed by the appellants before the Ld. Executing Court were titled as „objections on behalf of judgment debtors/objectors under order XXI R 97 of the Code of Civil Procedure read with all other enabling provisions and also under section 47 of Code of Civil Procedure to the execution petition filed by the alleged decree holder. The executing court while deciding the objections has observed that, "Vide this order, the court shall decide, the objections filed by the JDs u/sec. 47 of CPC." The present appeal has been titled as "Appeal u/O 21 R 58/97/98/99/100/101/103/104/105 CPC..." 14. So far as provisions invoked in the present appeal are concerned, most of the provisions do not in any manner provide for any appeal. Only Rule 103 of Order XXI CPC prescribes that any order passed under Rule 98 on an application under rule 97 and rule 100 on an application under rule 99 of order XXI CPC shall be deemed to be a decree which means that such an order is appealable. For the purpose of provisions of Order XXI R 103 CPC, it is to be seen whether the impugned order was actually an order passed under Rule 97 to rule 100 CPC. In this regard, it is found from the record that though the application/objections were titled under order XXI Rule 97 CPC but in fact the said provision was not attracted in the given situation and probably due to this reason only the Ld. Executing Court has treated the objections only under 47 CPC which deals with the questions arising between the parties to the suit in relation to execution, discharge or satisfaction of the decree. 15. Rule 97 of Order XXI CPC deals with a remedy available to the decree holder and a purchaser of the property when there is resistance to execution of warrant of possession etc. The appellant is not a decree holder or purchaser of property in this case; so, there does not arise any question of the appellant availing the abovesaid provision. 16. Similarly, Rule 99 of Order XXI CPC deals with the remedy available to a third person who is dispossessed during execution of a decree. The appellants also do not fall in the category of third person as they were party to the suit and are judgment debtors in the present execution petition. So, this provision is also not available to the appellants. 17. There is an argument on behalf of appellant that the ld. Executing court has taken recourse to section 144 CPC, which deals with restitution, so, by virtue-of the definition of term decree u/sec. 2(2) CPC which includes an order u/sec. 144 CPC, the impugned order is appealable. In this regard, it is to be seen that, order of restitution has already been passed by the Ld. Trial Court vide judgment dated24.12.1999 and it can be taken that the ld. executing court has simply analyzed the same for the purpose of execution in its letter and spirit. The judgment dated. 24.12.1999 has already been challenged by way of first and second appeal and both appeals filed by the appellants have already been dismissed vide judgment dated 16.05|.2018 and 14.09.2018. Without commenting upon the correctness of impugned order. It can be said that the different reliefs have been granted by the ld. executing court to the decree holder while deciding the objections filed by the appellants as a measure to ensure restitution as per the judgment passed by the ld.Trial court and not as an independent measure for restitution. 18. In view of above. It can be said that the objections were treated u/sec. 47 CPC by the ld. Executing Court which deals with questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. It iswell settled that it is the substance and not the nomenclature which is material. So, far as an order passed u/sec. 47 CPC is concerned, the same is not an appealable order as it does, not find mention either in section 104 or in order 43 CPC which prescribe exhaustive list of the appealable orders.' There is also no special provision which makes the order u/sec. 47 CPC an appealable order. An order u/sec. 47 CPC is also not covered by the existing definition of term decreeu/sec. 2(2) of CPC. 19. Considering the above facts and circumstances, I am of the considered view that present appeal is not maintainable in this court and same is accordingly dismissed." 21. It is the settled position in law that the nomenclature of an application does not govern the nature of the application, or the order passed in the same. Clearly the order passed by the Executing Court in this case is one under Section 47 CPC and not under Order XXI Rule 97 CPC. The question as to whether the Judgment Debtor is covered under the term "any person" in Rule 97 does not even arise in the present petition inasmuch as the said provision has in fact been wrongly invoked in the title of the application. The order passed is one for implementing the mandatory injunction as granted by the original decree dated 24th December, 1999 along with restitution in the form of damages. Such an order cannot constitute an order under Order XXI Rule 97 CPC and is clearly an order under Section 47 CPC. 22. In cases of this nature, if the Judgment Debtor himself is provided repeated remedies for indirectly challenging the judgment/decree which has attained finality, that too by invoking provisions which are not applicable, the same would result in complete injustice. The decree which is sought to be executed in the present case was originally passed in 1999 i.e., two decades ago. The same was upheld in 2018.As per the said decree, the Judgment Debtors had to restore the property to its original condition which they failed to do. The Executing Court has given effect to the said decree. No issues have been raised before the Executing Court, which warrant any enquiry. If such orders are held to be appealable, the same would result in providing repeated remedies to a Judgment Debtor who was a party to the original decree which has attained finality. Any interpretation that delays the execution ought to be avoided. The ADJ -as the Appellate Court was right in the view that was taken. Accordingly, the present petition and all pending applications are dismissed. PRATHIBA M. SINGH JUDGE MARCH19, 2020 Rahul/Rg


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6451 OF 2021 (Arising out of S.L.P. (C.) No. 14558 of 2019) N. JAYASREE & ORS. …APPELLANT(S) VERSUS CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD. …RESPONDENT(S) JUDGMENT S. ABDUL NAZEER, J. Leave granted. 2. This appeal is directed against the judgment dated 09.08.2017 passed by the High Court of Kerala at Ernakulam in MACA No. 1560 of 2013. Through the impugned judgment, the High Court scaled down the amount of compensation payable to Signature Not Verified Digitally signed by Anita Malhotra Date: 2021.10.25 17:08:20 IST the present appellants and thereby modified the award dated Reason: 26.04.2013 passed by the Motor Accident Claims Tribunal, Kottayam (for short ‘MACT’) in OP(MV) No.843 of 2011. 3. The appellants filed the aforesaid claim petition before the MACT seeking compensation on account of the death of N. Venugopalan Nair in a motor vehicle accident which occurred on 20.06.2011. Appellant no.1 is the wife of the deceased, appellant nos. 2 and 3 are his daughters and appellant no.4 is his motherinlaw. 4. There is no dispute as to the occurrence of the accident and the liability of the respondentinsurer to pay the compensation. In view of this admitted position, it is unnecessary to narrate the factual aspects of the accident. 5. The deceased was aged 52 years at the time of the accident. The MACT took the annual salary of the deceased as Rs.8,87,148. To this, the MACT applied a multiplier of ‘11’ and deducted onefourth (1/4th) of the income towards his personal expenses for the purpose of calculation of the compensation under the head of loss of dependency. A total sum of Rs.73,18,971/ (Rupees seventythree lakhs eighteen thousand nine hundred seventyone only) was awarded towards loss of dependency. The MACT awarded a total sum of Rs.74,50,971/ (Rupees seventyfour lakhs fifty thousand nine hundred seventyone only) towards compensation with interest @ 7.5 per cent per annum from the date of the claim petition till the date of realization. Thus, the amount awarded to the appellants is as under: S.No. Head of Claim Amount Amount Basis vital details Claimed (in Awarded (in in a nut shell rupees) rupees) 1. Transportation 5,000/ 4,000/ In view of the transportation charges 2. Funeral expenses 10,000/ 7,000/ Nominal amount 3. Damage to clothings 1,500/ 1,000/ …do…… 4. Loss of dependency 1,06,82,100/ 73,18,971/ (8,87,148 2,21,787)×11 =73,18,971/ 5. Pain and sufferings 10,000/ 15,000/ In view of the pain suffered by the victim before his death 6. Loss of love and 1,00,000/ 70,000/ Petitioners 2,3 affection and 4 have lost the love and affection of the victim 7. Loss of consortium 1,00,000/ 25,000/ The first petition has lost the companionship of her husband 8. Loss of estate 1,00,000/ 10,000/ Nominal amount 9. Loss of expectation of 2,00,000/ Not allowed Other heads life allowed TOTAL 1,12,08,600/ 74,50,971/ …………… 6. However, the High Court held that appellant no.4 was not a legal representative of the deceased. Further, the High Court held that the MACT ought to have applied split multiplier for the assessment of the dependency compensation. The High Court fixed monthly income of the deceased as Rs.40,000/ (Rupees forty thousand only) and deducted onethird (1/3 rd) of the income towards his personal expenses. It applied multiplier ‘7’ for calculating dependency compensation for the postretiral period and, for the preretirement period, a multiplier of ‘4’ was applied. Accordingly, the High Court awarded compensation of Rs.23,65,728/ (Rupees twentythree lakhs sixtyfive thousand seven hundred twentyeight only), towards loss of dependency for preretiral period and a sum of Rs.22,40,000/ (Rupees twentytwo lakhs forty thousand only) towards loss of dependency for postretiral period. A sum of Rs.1,00,000/ (Rupees one lakh only) was awarded towards loss of consortium, Rs.25,000/ (Rupees twentyfive thousand only) towards funeral expenses, and Rs.80,000/ (Rupees eighty thousand only) towards loss of love and affection. In total, a sum of Rs.48,39,728/ (Rupees fortyeight lakhs thirtynine thousand seven hundred twentyeight only) was awarded as compensation by the High Court. 7. We have heard the learned counsel for the parties. Learned counsel for the appellants submits that the High Court was not justified precluding appellant no.4 as legal representative of the deceased. She is the motherinlaw of the deceased and was living with the deceased and his family members. Therefore, she was entitled to be treated as a legal representative for the purpose of determination of compensation. Accordingly, 1/4 th of the income of the deceased should have been deducted towards his personal expenses. Further, it was contended that the High Court was not justified in applying a split multiplier having regard to the judgment of this Court in Sarla Verma (Smt.) and Ors. vs. Delhi Transport Corporation and Anr.1 and the subsequent Constitution Bench judgment of this Court in National Insurance Company Limited vs. Pranay Sethi and Ors.2. It was also argued that the deceased was a meritorious person who possessed the qualification of M.Sc. M.Phil. His monthly salary was 1 (2009) 6 SCC 121 2 (2017) 16 SCC 680 Rs.83,831/ which is evident from the materials on record. The High Court took his monthly income as Rs.40,000/ for the purpose of calculation of loss of dependency without any justification. In view of the above, the High Court was not justified in scaling down the amount of compensation awarded by the MACT. 8. On the other hand, learned counsel for the respondent submits that the deceased was aged 52 years at the time of the accident. He would not have earned the same monthly income after his retirement. In view of the same, the High Court applied a split multiplier for calculating the loss of dependency. It was also argued that appellant no.4, who is the motherinlaw of the deceased, cannot be treated as his legal representative. Further, it was contended that the High Court was justified in taking the monthly salary of the deceased as Rs.40,000/ and deducting 1/3 rd of the income towards the personal expenses, fair compensation has been awarded towards loss of dependency. 9. In view of the above, the questions for consideration before us are: (I) whether the High Court was justified in precluding the motherinlaw of the deceased (appellant no.4) as his legal representative? (II) whether the High Court was justified in applying a split multiplier? (III) based on the findings on the preceding questions, what is the amount of compensation that should be awarded to the appellants? (I) whether the High Court was justified in precluding the motherinlaw of the deceased (appellant no.4) as his legal representative? 10. The provisions of the Motor Vehicles Act, 1988 (for short, “MV Act”) gives paramount importance to the concept of ‘just and fair’ compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of ‘just compensation’ which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma1, this Court has laid down as under: “16. ...“Just compensation” is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the wellsettled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.” 11. In Sarla Verma1 it was further held that where the deceased was married, the deduction towards personal and living expenses of the deceased should be onethird (1/3 rd) where the number of dependent family members is between 2 and 3, onefourth (1/4 th) where the number of dependent family members is between 4 and 6, and onefifth (1/5th) where the number of dependent family members exceeds six. 12. In the instant case, the appellants have contended that the motherinlaw of the deceased was staying with the deceased and his family members since a long time. Taking into consideration the number of dependents of the deceased including his motherinlaw (four in number), the MACT had deducted one fourth (1/4th) of the income towards his personal expenses. However, the High Court has held that appellant no.4 being the motherinlaw of the deceased, cannot be reckoned as a dependent of the deceased. The High Court, therefore, determined the number of dependents as 3 and accordingly deducted onethird (1/3 rd) of the income of the deceased towards his personal expenses. 13. Section 166 of the MV Act provides for filing of an application for compensation. The relevant portion of the said Section is as under: “166. Application for compensation. — (1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made— (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.” 14. The MV Act does not define the term ‘legal representative’. Generally, ‘legal representative’ means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A ‘legal representative’ may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative. 15. Indicatively for the present inquiry, the Kerala Motor Vehicle Rules, 1989, defines the term ‘legal representative’ as under: “Legal Representative” means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased.” 16. In our view, the term ‘legal representative’ should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation. 17. It is settled that percentage of deduction for personal expenses cannot be governed by a rigid rule or formula of universal application. It also does not depend upon the basis of relationship of the claimant with the deceased. In some cases, the father may have his own income and thus will not be considered as dependent. Sometimes, brothers and sisters will not be considered as dependents because they may either be independent or earning or married or be dependent on the father. The percentage of deduction for personal expenditure, thus, depends upon the facts and circumstances of each case. 18. In the instant case, the question for consideration is whether the fourth appellant would fall under the expression ‘legal representative’ for the purpose of claiming compensation. In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr.3 this Court while considering the entitlement of the brother of a deceased who died in a motor vehicle accident to maintain a claim petition under the provisions of the MV Act, held as under: “13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110A to 110F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110A of the Act have to be done in accordance with wellknown principles of 33 (1987) 3 SCC 234 law. We should remember that in an Indian family brothers, sisters and brothers’ children and sometimes foster children live together and they are dependent upon the breadwinner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhagujri 4 and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110A of the Act if he is a legal representative of the deceased.” 19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors.5 it was held that: “7. …12. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique6 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the 4 AIR 1977 Guj 195 5 (2007) 10 SCC 715 6 1989 Supp (2) SCC 275 property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression ‘legal representative’. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai3 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.” 20. In Montford Brothers of St. Gabriel and Anr. vs. United India Insurance and Anr.7 this Court was considering the claim petition of a charitable society for award of compensation on account of the death of its member. The appellantsociety therein was a registered charitable society and was running various institutions as a constituent unit of Catholic church. Its members, after joining the appellantsociety, renounced the world and were known as ‘brother’. In this case, a ‘brother’ died in a motor vehicle accident. The claim petition filed by the appellantsociety seeking compensation on account of the death of aforesaid ‘brother’ was rejected by the High Court on the ground of its maintainability. 7 (2014) 3 SCC 394 This Court after examining various provisions of the MV Act held that the appellantsociety was the legal representative of the deceased ‘brother’. While allowing the claim petition it was observed as under: “17. A perusal of the judgment and order of the Tribunal discloses that although Issue 1 was not pressed and hence decided in favour of the appellant claimants, while considering the quantum of compensation for the claimants, the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependents or earning? For answering this issue, the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or an organisation may suffer considerable loss due to the death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court in Sudama Devi v. Jogendra Choudhary8, which held that the term “legal representative” is wide enough to include even “intermeddlers” with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure.” 21. Coming to the facts of the present case, the fourth appellant was the motherinlaw of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the motherinlaw to live with her daughter and soninlaw during her old age and be dependent upon her soninlaw for her maintenance. Appellant no.4 herein may not be a legal heir of the 8 AIR 1987 Pat 239 deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold that she is a “legal representative” under Section 166 of the MV Act and is entitled to maintain a claim petition. (II) Whether the High Court was justified in applying a split multiplier? 22. The deceased was aged 52 years at the time of the accident. He was working as an Assistant Professor and getting a monthly salary of Rs.83,831/ (Rupees eightythree thousand eight hundred thirtyone only). The evidence on record shows that he was a meritorious man having the qualifications of M.Sc, M.Phil. He was a firstclass holder in M.Sc. He was a Selection Grade Lecturer in Mathematics and was a subject expert. He was also included in the panel of Mahatma Gandhi University and was appointed as Examiner in the Board of Examiners for CBCCSS Programme in Mathematics. Subsequently, he was appointed as Deputy Chairman of the Examiners Board. Evidence on record also shows that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are appointed in so many colleges. It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement. 23. In Sarla Verma1, this Court has held that while calculating the compensation, the courts should take into consideration not only the actual income at the time of the death but should also make additions by taking note of future prospects. It was further held that though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid disparate yardsticks being applied or disparate methods of calculation being adopted. 24. In Reshma Kumari & Ors. vs. Madan Mohan & Anr.9, a threeJudge Bench of this Court has approved the judgment in Sarla Verma1. 9 (2013) 9 SCC 65 25. In Pranay Sethi2, this Court has not only approved the aforesaid observations made in Sarla Verma1 but also held as under: “59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 26. In K.R. Madhusudhan and Ors. vs. Administrative Officer and Anr.10, this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of dependency and held as under: 10 (2011) 4 SCC 689 “8. In Sarla Verma1 judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances. 9. We are of the opinion that the rule of thumb evolved in Sarla Verma1 is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same.” 27. In Puttamma and Ors. vs. K.L. Narayana Reddy and Anr.11, this Court was again considering a case where split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus: “32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma1 11 (2013) 15 SCC 45 prepared a table for the selection of a multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier. 33. In K.R. Madhusudhan v. Administrative Officer10 this Court held as follows: (SCC p. 692, paras 1415) “14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6. 15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method. 34. We, therefore, hold that in absence of any specific reason and evidence on record the tribunal or the court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in Sarla Verma1 as affirmed in Reshma Kumari9.” 28. From the above discussion it is clear that at the time of calculation of the income, the Court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi2, the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case. (III) What is the amount of compensation that should be awarded to the appellants? 29. That takes us to the award of compensation. We have already noticed that the deceased was working as Assistant Professor at Devaswom Board Pampa College, Paruamala, and was drawing a monthly income of Rs.83,381/ which is clear from his salary certificate (Ex.A5) issued by the Principal of Devaswom Board Pampa College, Paruamala. The salary slip received by the deceased for the month of May 2011 (Ex.A6) also shows that his monthly salary was Rs.83,381/. These documents have been marked in evidence through the Principal of the said College who was examined as PW1. Thus, annual income of the deceased comes to Rs.10,00,572/. This Court in Sarla Verma1 has made it clear that the Annual Income of the deceased minus the income tax should be taken into account at the time of his death for the purpose of calculation of loss of dependency. The deceased had to pay Rs.1,13,424/ towards income tax per annum. After deducting the said amount the actual income of the deceased comes to Rs.8,87,148/. 30. The deceased was aged 52 years at the time of his death and had a permanent job. Having regard to the judgment in Pranay Sethi2, an addition of 15% of his actual salary should be added towards future prospectus. Therefore, 15% of his actual salary comes to Rs.1,33,072/ 31. Since the deceased was 52 years at the time of his death, the applicable multiplier is ‘11’. As we have held that appellant no.4, the motherinlaw of the deceased is also a dependent and a “legal representative” under Section 166 of the MV Act, the total number of dependents left behind by the deceased is four. Hence, 1/4 th of the income (actual salary + future prospects) should be deducted towards his personal expenses. Thus, the total compensation payable towards loss of dependency is as under: (1) (i) Annual Salary Rs.10,00,572 (ii) less Tax Rs.1,13,424 (iii) Actual Salary : Rs.8,87,148 (2) Future Prospects :15% of Rs.1,33,072 Actual Salary (3) Loss of dependency : Rs.84,16,815 (1) 8,87,148 + (2) 1,33,072  – ¼ i.e. Rs.2,55,055 x 11 32. In Pranay Sethi2, this Court has awarded a total sum of Rs.70,000/ (Rupees seventy thousand only) under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. It was held that the said sum should be enhanced at the rate of 10% in every three years. It was held thus: “59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 33. The judgment in Pranay Sethi2 was rendered in the year 2017. Therefore, the claimants are entitled for 10% enhancement. Thus, a sum of Rs.16,500/ each is awarded towards loss of estate and funeral expenses. 34. A threeJudge Bench of this Court in United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and Ors12, after considering Pranay Sethi2, has awarded spousal 12 (2020) SCC Online SC 410 : AIR 2020 SC 3076 consortium at the rate of Rs.40,000/ (Rupees forty thousand only) and towards loss of parental consortium to each child at the rate of Rs.40,000/ (Rupees forty thousand only). The compensation under these heads also needs to be increased by 10%. Thus, the spousal consortium is awarded at Rs.44,000/ (Fortyfour thousand only), and towards parental consortium at the rate of Rs.44,000/ each (Total Rs.88,000/) is awarded to the two children. 35. Thus, the appellants are entitled to compensation as under: (i) Towards Loss of Rs.84,16,815/ dependency (ii) Loss of Estate Rs.16,500/ (iii) Funeral Expenses Rs.16,500/ (iv) Spousal Consortium Rs.44,000/ (v) Parental Consortium Rs.88,000/ Total Rs.85,81,815/ 36. The appellants are also entitled to interest on the said amount at the rate of 7.5% per annum from the date of the claim petition till the date of its realization. The respondent is accordingly directed to deposit the above amount with accrued interest thereon at the rate of 7.5% per annum from the date of claim petition till the date of deposit, after deducting amounts, if any, deposited by the respondent, within eight weeks from today. 37. Resultantly, the appeal is allowed in the aforesaid terms. Parties are directed to bear their respective costs. 38. Pending applications, if any, shall also stand disposed of. ……………………………………J. (S. ABDUL NAZEER) ……………………………………J. (KRISHNA MURARI) New Delhi; October 25, 2021.