Hon'ble Ashwani Kumar Mishra,J.
(Per Hon. Ashwani Kumar Mishra, J.)
1. Instant appeal under section 173 of the Motor Vehicle Act has been preferred by the appellants-claimants, against the judgment and order/award passed by Motor Accident Claims Tribunal, Balrampur dated 9.1.2013 in M.A.C.P. No.7 of 2012, whereby the tribunal has awarded compensation amounting to Rs.26,61,976/- along with 6% interest. Appellant-claimant no.1 is widow of deceased Krishna Murari Ram Tiwari, whereas appellant-claimant nos.2 to 4 are minor children of deceased and appellant-claimant nos.5 and 6 are parents of deceased. Appellants-claimants have sought enhancement, over and above the amount awarded to the amount claimed before the tribunal i.e. Rs.66,05,181/-, primarily on the ground that monthly salary of the deceased has been incorrectly determined; future prospects have not been correctly valued; personal and living expenses of the deceased have not been correctly valued and the amounts under different heads towards loss of consortium, loss of care and guidance of minor children and funeral expenses have not been awarded.
2. The facts emerging from the records are that deceased Krishna Murari Ram Tiwari was a permanent employee of M/s Bajaj Hindustan Ltd. (Sugar Division) Unit, Kundrakhi Kastua, P.O. Govindpara, District Gonda, and was working in night shift from 10.00 PM to 6.00 AM. On 28.11.2011 at about 9.30 PM, while he was on way to the factory along with Sandeep Kumar Tiwari on a motorcycle bearing registration no. UP 47 D-7612, having reached Bankatwa, he was hit from behind by Xylo Mahindra Vehicle bearing registration no. UP 47-D 3819 due to rash and negligent driving by its driver, as a result whereof the deceased sustained serious and fatal injuries and while he was taken to the district hospital at Gonda, he succumbed to injuries. A first information report as Case Crime No.1062 of 2011 under section 304-A and 427 I.P.C. was lodged, wherein the vehicle in question was mentioned. Accordingly, a claim for compensation has been filed under section 166 of the Act by the appellants-claimants under specified heads.
3. The owner of the vehicle as well as the insurance company contested the claim by filing written statement.
4. The tribunal on the basis of respective pleas of the parties framed following issues:-
(i) Whether on 28.11.2011 at about 9.30 PM on Gonda-Faizabad road, accident was caused due to rash and negligent driving of Mahindra Xylo Vehicle bearing registration no. UP 47 D-3819, which hit the motorcycle from behind & led to death of pillion rider on account of serious and fatal injuries suffered by him?
(ii) Whether the vehicle bearing registration no. UP 47 D-3819 was duly registered and insured?
(iii) Whether the vehicle was being driven by the driver possessing valid driving licence?
(iv) Whether the claimants are entitled for compensation and from whom?
5. The tribunal upon consideration of evidence brought on record, which included oral statement of four witnesses as well as F.I.R., postmortem report, newspaper report, site-plan, technical report and charge-sheet concluded that the accident had been caused by the vehicle in question due to rash and negligent driving of its driver resulting in serious and fatal injuries for the deceased. Issue no.2 and 3 were also decided by holding that the vehicle was duly registered and insured, and it was driven by Nanke son of Jaleel, who had a valid permission to drive it.
6. The findings returned by the tribunal on issue no.1, 2 and 3 have attained finality inter se between the parties, inasmuch as the judgment of the tribunal has not been challenged by the respondents. No further discussion on issue no.1, 2 and 3 is, therefore required.
7. The only issue that arises for consideration is, as to whether 'just compensation' warranted by law under section 168 (2) of the Motor Vehicle Act has been determined by the tribunal for being paid to the appellants-claimants?
8. Before the tribunal, in order to establish the income of the deceased, essentially three documents were produced and proved. Paper no. 6C-1 dated 14.1.2012 is the original certificate of the employer, which mentions salary of the deceased as Rs.18,172/- per month or Rs.2,18,064/- per annum. The certificate further mentions that the deceased was a hardworking young man of about 32 years, who had been promoted on regular basis and his salary had increased every year and that he will have continued in service till he attained age of 60 years, after which he was entitled for payment of gratuity and pension. The original salary slip has also been filed as paper no.33C dated 30.10.2012, which mentions details of the salary as under:-
Computation of Income Tax (5) Children Education Allowance (Exempted Allowance under section 10(14) Rule 2 BB of Income Tax) Amount Received [Less amount of allowance or Rs.100/- per month per Chilled for maximum 2 children, which ever is lower] Rs.100x2 = Rs.02400.00 (6) Conveyance Allowance Exempted Under section 10(14) Rule 22 BB of Income Tax Rs.800x12 = Rs.9600.00 (7) House Rent Allowance is Exempted under Section 10(13A) Rule 2A of Income Tax 40% of salary (Rs.8000/+3200/+1600+Rs.928) = Rs.13728/x12=1,64,736/ if 40% comes Rs.65894/ or actual which ever is lower Rs.2000x12 = Rs.24000.00 ---------------- Rs.1,82,064.00 (8) Rebate under Section 80C of Income Tax (Maximum Rs.1 Lac.) Provident Fund Contribution Rs.1344x12 = Rs.16,128.00 ---------------- Rs.1,65,936.00 Income Exempted in Financial Year 2011-12 Rs.1,80,000.00 ----------------- Income Tax Payable NIL -----------------
10. The tribunal in its judgment has taken note of the aforesaid documents and has recorded a finding that income of the deceased amounting to Rs.18,172/- is wholly proved. The tribunal has considered the computation of income tax as per the certificate issued by the Chartered Accountants. However, the tribunal took the view that various allowances which were exempted under the Act would have to be excluded and net salary after adjusting the aforesaid amount was determined as Rs.1,65,936. The tribunal further allowed 50% for the future prospects, making the multiplicand as Rs.2,48,904/-. Considering the age of the deceased between 30 to 35 years, the tribunal has allowed multiplier of 16 and 1/3rd towards persons expenses were deducted. A sum of Rs.2,000/- towards funeral expenses and Rs.5,000/- towards mental agony and pain were allowed, thereby totaling the compensation to Rs.26.61,976/-.
11. We have heard Sri Ashok Sinha, learned counsel appearing for appellants-claimants and Sri Ankit Srivastava, learned counsel appearing for respondent- insurance company and have perused the records of the present appeal as also original records of the tribunal.
12. The short question which arises for determination of compensation is, as to what components of the salary would be included in determining the income of the deceased for determining the compensation?
13. In National Insurance Company Ltd. v. Indira Srivastava and others: 2008 (1) TAC 424 (SC), after considering the previous judgments, the Apex Court has held as under in para 8, 9, 11, 17 and 19:-
"8. The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetory terms.
9. Section 168 of the Act uses the word 'just compensation' which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, Gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined.-------
11. We may furthermore notice that apart therefrom, superannuation benefits, contributions towards gratuity, insurance of medical policy for self and family and education scholarship were beneficial to the members of the family.
17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.
19. 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 profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute."
14. The aforesaid proposition has been reiterated by the Apex Court in Raj Rani and others v. Oriental Insurance Co. Ltd. and others: 2009 ACJ 2003. Para 10 of the said judgment is reproduced hereinafter:-
"10. The fact that the deceased was getting a salary of Rs.17,431/- is not in dispute. Apart from the dearness allowance, if other allowances were payable which were beneficial to the entire family, the same should have been taken into consideration for the purpose of computation of the annual income. It was so held in National Insurance Company Ltd. v. Indira Srivastava & Ors. [(2008) 2 SCC 763]."
15. From the aforesaid judgment, it is clear that term 'income' not only includes pay packet which the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Superannuation benefits, contribution towards gratuity, medical policy, education scholarship etc. were held beneficial to the members of the entire family and thus included in the definition of 'income'.
16. In the present case, we find that the Chartered Accountants had referred to the provisions of Income Tax Act, which dealt with various allowances admissible under the Income Tax Act. The certificate of the Chartered Accountants, which has been duly proved, was not controverted by the insurance company by leading any contra evidence. The perks, which were provided to the deceased and were beneficial to the members of entire family, were required to have been counted for determining the income. The only deduction required to be made was of the actual payment of income tax on the income. The certificate of the Chartered Accountants clearly shows that in view of the allowances admissible under the Income Tax Act and actually availed no tax was actually payable.
17. The tribunal has correctly appreciated the evidence brought on record for determining the income of the deceased. However, it has erroneously deducted from the salary of the deceased, perks which were available to the deceased and were exempted from applicability of the Income Tax Act. If no tax was payable due to exemption granted under the Income Tax Act, tribunal was required to have computed the salary inclusive of perks,beneficial to the members of the entire family, in its entirety. Admittedly, no income tax was payable and, therefore, no deduction under the head of tax was required to be deducted. From the details of the salary admitted to be paid to the deceased, it transpires that basic salary, fixed personal pay, ex-gratia, special allowance, children education allowance, conveyance allowance, house rent allowance and provident fund contribution were all liable to be included in the definition of 'income', as the aforesaid amounts were all available for the benefit of the members of the entire family. The loss caused to the family of the deceased, inclusive of all elements/perks works out to Rs.2,18,064/-. We, therefore hold that tribunal was not justified in assessing the income of the deceased at Rs.1,65,936/- per annum. The correct income of the deceased was Rs.2,18,064/-, as has been claimed, and we hold it accordingly.
18. The age of the deceased was about 32 years and, therefore, the multiplier of 16 is in consonance with the principles laid down in the chart prepared in Smt. Sarla Verma and others v. Delhi Transport Corporation and another: 2009 (2) TAC 677 (SC). The multiplier of 16, therefore, would be valid.
19. Since age of the deceased was only 32 years, therefore, 50% was liable to be added towards future prospects in view of the observations made in para 11 of Smt. Sarla Verma (supra), which is reproduced hereinafter:-
"11. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words ''actual salary' should be read as ''actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of 13 increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. "
Thus, a further sum of 50% of Rs.2,18,064/- would be added to determine the multiplicand.
20. Tribunal has deducted 1/3rd towards personal and living expenses. In the present case, deceased was married and has left behind six dependents. The issue of deduction for personal and living expenses has been considered in respect of a married person in para 30 of Sarla Verma (supra), which is referred hereinafter:-
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-forth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."
Thus, by virtue of principle laid down in para 30 aforesaid, only 1/4th of the aforesaid amount would be appropriated towards personal and living expenses of the deceased.
21. Tribunal has further awarded a sum of Rs.5,000/- towards mental agony and pain (loss of consortium) and Rs.2,000/- towards funeral expenses. This issue has been dealt with by Hon'ble Supreme Court in (2013) 9 SCC 54 Rajesh and others vs. Rajbir Singh and others in para 17 and 18 of the judgment, which are reproduced:-
17. The ratio of a decision of this court, on a legal issue is a precedent. But an observation made by this court, mainly to achieve uniformity and consistency on a socio-econmic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may, therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.25000 to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma case, it was held that compensation for loss of consortium should be in the range of Rs.5000 to Rs.10000. In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc. the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Austraila, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
18. We may also take judicial notice of the fact that the tribunals have been quite frugal with regard to award of compensation under the head "funeral expenses". The "price index", it is a fact has gone up in that regard also. The head "funeral expenses" does not mean the fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of "funeral expenses", in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-"
In view of the above, we hold that the claimants are entitled to loss of consortium amount of Rs.1,00,000/- and a further sum of Rs.25,000/- for funeral expenses.
22. The tribunal has not awarded any amount towards loss of care and guidance for minor children. The Apex Court while dealing with a claim of compensation in Civil Appeal No.8251 of 2013: Sanobanu Nazirbhai Mirza and others v. Ahmedabad Municipal Transport Service, observed as under in para 8 of the judgment:-
8. In view of the aforesaid fact, we have to hold that it would be just and proper for this Court to take a sum of Rs.5000/- as the monthly income of the deceased having regard to the nature of job that the deceased was performing as a polisher, which is a skilled job, wherein the annual income would come to Rs.60,000/-. This Court in judgment of Santosh Devi V. National Insurance Co. Ltd.& Ors.5, has held that an addition of 30% increase must be applied for increase in total income of the deceased over a period of time if he had been alive. Further, in the recent decision in Rajesh & Ors. V. Rajbir Singh, this Court while referring to the case of Santosh Devi (supra) held that in the case of self-employed persons or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects of the deceased. Keeping in view the five dependents of the deceased in the case on hand, 1/5th amount is to be deducted towards personal expenses. Having regard to the age of the deceased as 25, as mentioned in the postmortem report, which age is taken by both the Tribunal as well as the High Court, and keeping in mind the life expectancy of the deceased, multiplier of 20 must be applied to the multiplicand for the purpose of quantifying loss of dependancy. Further, following the decision of this Court in Rajesh V. Rajbir Singh (supra), Rs.1,00,000/- must be added under the head of loss of consortium and Rs.1,00,000 under the head of loss of care and guidance for minor children. Further, it was held by this Court in the case referred to supra that Rs.25,000/- must be awarded for funeral expenses as this Court has made observations in the case referred to supra that the tribunals have been frugal in awarding the compensation under the head ''funeral expenses' and hence, we award Rs.25,000 under the head of funeral expenses to the claimants/legal representatives."
Therefore, we hold that the appellants-claimants are also entitled to Rs.1,00,000/- towards loss of care and guidance for minor children.
23. The tribunal also has not awarded any amount towards loss of estate in the present case. The deceased was aged about 32 years, therefore, it would be appropriate to award a sum of Rs.10,000/- for loss of estate.
24. In such circumstances, the claimants would be entitled to compensation under following heads:-
Sl. No. Heads Calculation
(i) Income Rs. 18,172/-
(ii) 50% of above to be added as future prospects.
Rs. 27,258/-
(Rs.18,172+9086)
(iii) 1/4th of (ii) to be deducted as personal expenses of the deceased.
Rs.20443.5/-
(Rs.27,258-6814.5)
(iv) Compensation (for loss of dependency) after multiplier of 16 is applied.
Rs. 39,25,152/-
(Rs.20,443.5x12x16)
(v) Consortium Rs.1,00,000/-
(Rs.1,00,000+39,25,152 =Rs.40,25,152/-)
(vi) Funeral expenses Rs.25,000/-
(Rs.25,000+40,25,152 =Rs.40,50,152/-)
(vii) Loss of care and guidance for minor children Rs.1,00,000/-
(Rs.1,00,000+40,50,152 =Rs.41,50,152/-)
(viii) Loss of estate Rs.10,000/-
(Rs.10,000+41,50,152 =Rs.41,60,152/-) Total compensation awarded Rs.41,60,152/-
25. The tribunal has allowed 6% interest. Although, this court in 'United India Insurance Company Ltd. v. Rajendra Pratap Singh and others: in F.A.F.O. No.236 of 2010' after noticing various decisions of the Apex Court, has held that payment of interest at the rate of 9% p.a. would be the appropriate interest to be awarded in such matters, however, in view of the fact that we have enhanced the compensation amount, we deem it appropriate to maintain the rate of interest at the rate of 6% per annum. We are fortified in taking this view, by the observations made by the Apex Court in Sanjay Verma v. Haryana Roadways: 2014 (3) SCC 210, which is to the following effect:-
"In view of the enhancement made by us, we do not consider it necessary to modify the rate of interest awarded by the High Court i.e. 6% from the date of application i.e. 24.8.1999 to the date of payment which will also be payable on the enhanced amount of compensation."
26. In view of our aforesaid findings, we modify the award dated 9.1.2013 passed by Motor Accident Claims Tribunal, Balrampur in M.A.C.P. No. 07 of 2012 and allow the claim for payment of compensation to Rs.41,60,152/-, as calculated above, along with interest at the rate of 6% p.a. from the date of filing of the claim petition till its actual payment. The respondent- insurance company is directed to deposit the aforesaid amount before the tribunal, after adjusting the amount already deposited, within a period of two months. Tribunal shall release the enhanced award in favour of the appellant's-claimant's in proportion to the amount directed by the tribunal.
27. Accordingly, the present appeal is allowed in part in terms of the aforesaid directions. No order is however, passed as to costs.
Order Date :- 29.5.2014 Ashok Kr.