RESERVED
Case :- FIRST APPEAL FROM ORDER No. - 2900 of 2008 Appellant :- Smt. Subhadra Singh & Others Respondent :- Muneesh & Others Counsel for Appellant :- Gopal D. Srivastava,I.M.Tripathi,S.P.Giri Counsel for Respondent :- P.K.Sinha
Hon'ble Ran Vijai Singh,J. Hon'ble Mukhtar Ahmad,J.
(Delivered by Justice Mukhtar Ahmad J.)
This appeal has been preferred assailing the award dated 06.10.2001 passed in M.A.C.P. No. 198 of 1998 (Subhadra Singh and others Vs. Munish and others) whereby amount of Rs.7,83,000/- was awarded as compensation along with 9% interest from the date of moving the petition till realization of the money.
The background facts in nutshell are that in an accident which took place on 12th September, 1998 at about 2.30 a.m. Rajendra Prasad, husband of the claimant no. 1 (hereinafter referred to as the deceased) who was coming from Jaunpur to his native village Lakhauwa on his motorcycle bearing bearing No. 62-C-8999, a truck bearing No. DL-1G 1427 driven by its driver in a rash and negligent manner hit the motorcycle of the deceased resultantly he sustained fatal injuries and lost his life. The driver of the truck succeeded in running away from there leaving the truck on the spot.
A claim petition was filed by the widow and children of the deceased stating therein that the deceased was aged about 41 years of age at the time of accident and was working as Area Manager in Gomti Gramin Bank, Jaunpur and was drawing a salary of Rs. 13,000/- per month. It was also asserted that the deceased was to retire in January, 2015 and he was likely to reach on a higher post and his pay scale was to be revised. It was further asserted that the deceased was having a valid and effective driving licence to drive motorcycle. Rupees thirty lacks were claimed to be awarded as compensation.
Learned Tribunal on the basis of the evidence adduced on behalf of the parties observed that the accident took place due to rash and negligent driving of the truck. It was also observed that the driver of the truck was having valid and effective driving license and the truck was validly insured with respondent no. 4, The New India Insurance. The claim petition was allowed and Rs.7,83,000/- along with 9% interest from the date of filing of the claim petition till actual payment was provided.
Feeling aggrieved with the amount of compensation, this appeal has been filed for enhancement.
We have heard Sri S.P. Giri, learned counsel for the appellants and Sri P.K. Sinha, learned counsel for the respondents.
Learned counsel for the appellant has argued to enhance the awarded amount on the following grounds-
i) The Tribunal has erred in assessing the monthly income of the deceased as Rs.6,000/- per month while he was working as Area Manager and was getting monthly emoluments of Rs.13,000/- per month and the Tribunal should not have deducted Provident Fund, Vehicle Advance, Insurance and monthly payment towards member ship of Cricket and Sports Club.
ii) The Tribunal did not take into consideration the future prospects while calculating the amount of compensation.
Learning counsel appearing on behalf of the respondent No. 4 has opposed these arguments and supported the award. However, it is stated that Rs.20,000/- was wrongly provided by the Tribunal as expenses towards last ceremony. Further Rs. 5,000/- were provided for Shraddh while there is no such provision. In respect of determination of income he argued that the learned Tribunal has correctly relied upon actual take home salary and thus no error has been committed while determining the amount of compensation on the basis of the monthly salary.
We now proceed to deal with the points raised before us.
It has been asserted by the claimant that the deceased was working as Area Manager in Gomti Gramin Bank at its Head Office, Jaunpur. The salary slip issued by the Senior Manager of the concerned Bank has been made available on record. The earning and deductions as shown in the salary slip are as under:-
a) Earnings-
Basic Pay - Rs. 4,020.00 D.A. - Rs. 8,297.00 H.R.A. - Rs. 300.00 Total - Rs.12,617.00
b) Deductions-
P.F. - Rs. 600.00 Vehicle Advance- Rs. 225.00 House Loan- Rs.1,460.00 L.I.C. - Rs.1,092.00 Income tax - Rs. 300.00 Festival Advance- Rs. 550.00 C.S. Loan - Rs. 580.00 Cricket Club- Rs. 20.00 Sports Club - Rs. 10.00 Total - Rs.4,912.00 Take home Salary = Total Earning - Total Deductions Rs.12,617.00 – Rs.4,912.00 = Rs. 7,704.00 Attested copy of salary register has also been made available on record.
Learned Tribunal has assessed the monthly income of deceased as Rs.7,500.00, out of which Rs.1,000.00 was deducted as petrol expenses and Rs.500.00 towards other expenses and calculated the amount of compensation on Rs.6,000.00 as monthly income.
Now it is to be considered as to how the take home salary is to be determined. In National Insurance Co. Ltd. v. Indira Srivastava (2008) 2 SCC 763, the Hon'ble Apex Court has observed-
“9. 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 employees 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 the death of the near and dear one can hardly be compensated on monetary terms.
Their Lordship also stated that if some facilities were being provided whereby the entire family stood to benefit, the same must be held to be relevant for the purpose of computation of total income on the basis of which the amount of compensation payable for the death of kith and kin of the applicants was required to be determined. The Court further held in para 12 as under:-
“12. Superannuation benefits, contributions towards gratuity, insurance of medical policy for self and family and education scholarship were beneficial to the members of the family.
It was further observed that 'just compensation' must be determined having regard to the facts and circumstances of each case. The basis for considering the entire pay-packet is what the dependents have lost in view of death of the deceased. It is in the nature of compensation for future loss towards the family income.
It was further observed in paragraph 19 that the amount 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.
In Rabhuvir Singh Matolya v. Hari Singh Malviya (2010)2 SCC (Cri) 546 the Hon'ble Supreme Court has observed that dearness allowance and house rent allowance should be included for computation of income of the deceased.
In the present case the gross salary and deductions are shown, as above.
In view of the discussions made above and in the light of the law laid down by the Apex Court, in our opinion the amount of income tax is to be deducted. Loan and advances taken by the deceased and paying from his salary cannot be deducted.
Thus, we calculate the income of the deceased by taking above mentioned allowances into consideration, the monthly income of the deceased thus comes to Rs.12,617.00 – Rs. 300.00 (income tax) = Rs.12,317.00 or Rs.12,000.00 (round up). The annual income of the deceased thus comes to Rs.12,000 x 12 = Rs.1,44,000.00.
One third deduction for personal and living expenses made by the Tribunal seems to be proper, which has not been disputed by the appellants, thus after deduction the dependency of claimants comes to Rs.1,44,000.00 – Rs.48,000.00 = Rs.96,000.00.
Now we have to determine the future prospects. In Sarla Verma and others Vs. Delhi Transport Corporation and others, 2009 ACJ 1298, the Hon'ble Supreme Court has laid down the “rule of thumb” with respect to addition in income due to future prospects. It has been observed therein that addition should be only 30% if the age of the deceased is between 40 to 50 years. In the present case the deceased was about 43 years of age and thus we allow addition of 30% by way of future prospects. As such annual dependency comes-
Rs.96,000.00 + 28,800.00 = Rs. 1,24,800.00.
Now we have to decide as to what would be the proper multiplier. As per High School Certificate made available on record, the date of birth of the deceased was 10.01.1955. Hence at the time of accident he was about 43 years of age. In view of the second Schedule of the Motor Vehicle Act 15 would be the proper multiplier. The amount comes to-
Rs.1,24,800.00 x 15 = Rs. 18,72,000.00 Besides this claimant shall also be entitled to get Rs.10,000.00 for funeral expenses, Rs.5,000.00 for loss of estate and Rs.10,000.00 for loss of consortium (payable to claimant no. 1 -Subhadra Singh).
In view of the discussions made above, the total compensation admissible and payable to the claimants is worked out to be as under-
Rs.18,72,000.00+Rs.10,000/-+ 5,000/- + 10,000/- = Rs.18,97,000.00 Accordingly compensation of Rs.7,83,000/- awarded by the Tribunal is enhanced to Rs.18,97,000.00 along with simple interest @ 7% per annum from the date of filing of the petition till the date of actual payment.
In view of the above the appeal is partly allowed.
Order Date :-24.4.2018 M.A.Ansari