2013(1) ALL MR 589
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

M.N. GILANI, J.

Smt. Rekha Wd/O. Bhagwatraoji Pusdekar & Ors.Vs.Malyadri Narasimhulu & Ors.

First Appeal No. 18 of 2009

22nd November, 2012

Petitioner Counsel: Mr. Raju Dhoble

Motor Vehicles Act (1988), Ss.166, 168 - Compensation - Quantum of - Deceased was teacher in school - Without considering salary statements and deductions in it Tribunal made calculations as per carry home salary - Salary statement shows deductions towards society loan, Life insurance policy, RD, G.I.S etc - Deductions only towards transport and professional tax need to be considered while calculating take home salary - claimants entitled to receive enhanced amount of compensation accordingly.

2008 ALL SCR 574, 2010 ALL SCR 1858 Ref. to. [Para 7,8]

Cases Cited:
National Insurance Co. Ltd. Vs. Indira Srivastava and others, 2008 ALL SCR 574=2008(3) Mh.L.J. 550 [Para 8]
Shyamwati Sharma & others Vs. Karam Singh and others, 2010 ALL SCR 1858=(2010) 12 SCC 378 [Para 8]


JUDGMENT

-This appeal arises from the judgment and award dated 4.8.2008 passed by the Motor Accident Claims Tribunal, Wardha, in M.A.C.P. No.35/2005, whereby the appellants herein were awarded compensation of Rs.7,64,852/- on account of death of one Bhagwatrao which occurred on 14.2.2004, in a motor-vehicular accident involving motorcycle and truck.

2. On 14.2.2004, the deceased with one Gajanan on pillion were riding motorcycle on Nagpur - Hinganghat road. The truck coming from opposite direction dashed against the motorcycle. The truck also turned turtle. In that Bhagwatrao received injuries and succumbed to them on the spot. He left behind him, widow, unmarried daughter aged 21 years, son aged 19 years undergoing education and one minor daughter. They all lodged claim for award of compensation of Rs.20 lakh. Matter proceeded exparte against the owner of the truck. Respondent no.2 and 3 i.e. driver and insurer of the offending vehicle resisted the application mainly on the ground that because of rash and negligent driving of the motorcycle by the deceased himself, accident occurred. The respondent no.3 - insurer disputed the question about the existence of the insurance cover.

3. The learned tribunal framed issues. Claimants examined three witnesses. The learned tribunal held that because of rash and negligent riving of the truck accident occurred and therefore fastened the liability jointly and severally on the owner, driver and insurer of the truck. As regards the quantum of compensation, the learned tribunal assumed loss of dependency at Rs.3,842/- on the basis that take home salary of the deceased was Rs.5,762/- and after deducting 1/3rd towards personal and living expenses of the deceased, had he been alive, yearly dependency was calculated at Rs.46,104/- and after applying multiplier of 13, having regard to the age of the deceased, awarded total amount of compensation of Rs.7,64,852/-. The only issue raised in this appeal is the quantum of the compensation.

4. Mr. Dhoble, learned counsel for the appellant contended that evidence is placed on record to prove that gross salary of the deceased was Rs.12,388/- and after usual deductions towards transport allowance, professional tax etc. the net salary which ought to have been considered by the tribunal comes to Rs.11,888/-. According to him, the tribunal has fallen in serious error while considering the carry-home salary, which approach is de-hors the settled legal position, as explained by the Supreme Court as well as various High Courts.

5. None present for the respondents.

6. The point that arises for my consideration is :

Whether the approach of the learned Tribunal in considering the quantum of only take home salary, without having regard to the particulars / heads of deductions, is correct ?

7. At the time of incident, the deceased was serving as a teacher in Vikas Vidyalaya, Hinganghat. Mr. Tukaram Satpute, serving as Senior Clerk in the said school has been examined at Exhibit 43. He placed on record service book Exhibit 44 and the salary statement of the deceased at Exhibit 45. According to him, the deceased was receiving salary of Rs.12,388/- bifurcation of which is thus:

Basic

7500 = 00

Dearness Allowance

4125 = 00

House Rent Allowance

0563 = 00

Transport allowance

0200 = 00

Total

12,388 = 00

He admitted in his cross examination that carry-home salary of the deceased was Rs.5,762/-. Without considering the salary statements exhibit 45, and particularly the heads under which there were deductions, the learned tribunal assumed the monthly income of the deceased at Rs.5,762/-. Exhibit 45 shows that there were deductions towards Society Loan, Life Insurance Premium, Recurring Deposit, G.I.S. etc. In no circumstance, the tribunal should have excluded the amount of Rs.3,455/- which is deducted towards society loan, Rs.1056/- which is deducted towards L.I.C. premium, Rs.100/- recurring deposit and Rs.30/- towards G.I.S. The only deductions which could have been considered is of Rs.200/- towards transport allowance and Rs.300/- towards professional tax.

8. In case of National Insurance Co. Ltd ..vs.. Indira Srivastava and others [2008(3) Mh.L.J. 550] : [2008 ALL SCR 574] it has been held by their Lordships of the Supreme Court that - Perks paid which are beneficial to the members of the entire family to be included for computation of his monthly income. It was further held that :

"If the dictionary meaning of the word 'income' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or professional tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the execution conferred thereupon under the statute."

In case of Shyamwati Sharma & others ..vs..Karam Singh and others [(2010) 12 SCC 378] : [2010 ALL SCR 1858], their Lordships observed thus:

"We however, make it clear that while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans, etc. should not be excluded from the income. The deduction towards income tax / surcharge alone should be considered to arrive at the net income of the deceased."

The aforesaid being the legal position, the only deductions could be of the amount of Rs.200/- which the deceased was receiving towards transport allowance, Rs. 300/- which he was required to pay as professional tax. Thus the monthly income of the deceased would be : 11,888/- x 12 =1,42,656, after 1/3rd deduction of Rs. 47,552/-, it comes to 95,104/-. The deceased was born on 7.1.1958, that means on the date of incident he was aged about 46 years. The choice of multiplier made by the tribunal was correct. Thus total amount of dependency comes to Rs.95,104 x 13 =12,36,352/- rounded of to Rs.12,36,500/-. The tribunal awarded Rs.9,500/- under other heads which needs no interference. Thus the total amount of compensation would be [12,36,500 + 9500] Rs.12,46,000/-. This shall be inclusive of no-fault-liability amount.

9. As regards addition of agricultural income, P.W.1 Rekha admitted in her cross examination that still agricultural land is being cultivated. In that view of the matter the claimants would not be entitled for any addition in the amount of loss of dependency on account of loss of agricultural income.

10. In the result the appeal is allowed partly. The appellants / original claimants shall be entitled to receive enhanced amount of [Rs. 12,46,000 - 50,000 (No fault claim) - 7,64,852 awarded by the tribunal] = Rs. 4,31,148/- with future interest @ 7.5% p.a. form the date of filing of the petition i.e. 8.2.2005 till its realisation with proportionate costs throughout. Decree be drawn up accordingly which shall be exparte against the respondent no.1 to 3.

The amount be deposited with the Motor Accident Claims Tribunal, Wardha. On such deposit, the tribunal shall invest 70% of the amount in the name of original claimant no.1 - Smt. Rekha Bhagwatraoji Pusdekar in any nationalised bank of her choice, for a period of five years with an arrangement that she shall receive interest accrued thereon, monthly or quarterly and on maturity of the same she shall be entitled to receive the entire amount without reference to this Court. Rest of the amount be paid to her by cross cheque.

Appeal partly allowed.