Allahabad High Court
The New India Assurance Co. Ltd. vs Smt. Anita Upadhayay And 4 Others on 28 February, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- FIRST APPEAL FROM ORDER No. - 2065 of 2017 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Anita Upadhayay And 4 Others Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- Rakesh Kumar Porwal Hon'ble Vivek Agarwal,J.
Heard Sri Aditya Singh Parihar, learned counsel for the appellant and Sri Rakesh Kumar Porwal, learned counsel for claimant-respondent no. 1.
This appeal has been filed by the insurance company being aggrieved of award dated 28.02.2017 passed by learned Motor Accident Claims Tribunal, Court No. 9, Kanpur Nagar in MACP Case No. 281 of 2013 on mainly two grounds.
It is submitted that the testimony of eye-witness PW2 as has been discussed by learned claims tribunal leads to a conclusion that injury could not have been caused as has been revealed in the post mortem report on account of a maruti car overtaking the motorcycle of the deceased as a result of which, deceased was allegedly made to fall on left hand side of the road. Secondly, it is submitted that salary slip of the deceased has not been proved. Thirdly, it is submitted that income tax deduction has not been made.
As far as factum of nature of injury and negligence is concerned, admittedly insurance company did not examine any doctor in support of their case that such injuries as have been reported in the post mortem report of the deceased could not have been sustained on account of the impact of the accident as has been allegedly narrated by the so called eye-witness PW2. In absence of there being any evidence to this effect, this plea of the insurance company being not substantiated through any cogent material on record deserves to be discarded and is discarded.
As far as salary slip is concerned, it is not in dispute that deceased was working as a sub-inspector in Uttar Pradesh Police. There is no material on record to dispute his engagement with Uttar Pradesh Police as sub-inspector. There is no material on record to show that such salary slip was forged and was not belonging to the deceased. Further, gross income for the month of September 2012 has been shown as Rs. 40,316/- (forty thousand three hundred sixteen rupees) from which statutory deduction like G.P.F, G.I.F. etc. have been reduced and net income has been considered at Rs. 34,758/- (thirty four thousand seven hundred fifty eight rupees). The fact of the matter is that such statutory deductions are part of the income and were not required to be deducted. Therefore, it can be presumed that when quantum is not in challenge in the hands of the claimants, then the amount which constitutes almost 15% of the salary of the deceased was actually deducted under the head of tax deduction rather than under the deduction of statutory payments. Therefore, calculation of compensation treating monthly income at Rs. 34,758/- (thirty four thousand seven hundred fifty eight rupees) instead of Rs. 40,316/- (forty thousand three hundred sixteen rupees) for which a salary slip has been produced cannot be faulted with. Thus, there is no merit in the appeal on all the grounds as have been raised by learned counsel for the insurance company.
Therefore, appeal fails and is accordingly, dismissed.
Order Date :- 28.2.2020 Vikram/-