Jammu & Kashmir High Court
New India Assurance Co. Ltd vs Usha Baloria And Others on 24 July, 2020
Author: Rajesh Bindal
Bench: Rajesh Bindal
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
MA No. 291/2012,
MA No. 226/2006,
CCROS No. 12/2006,
MA No. 168/2006,
MA No. 654/2010,
MA No. 382/2012,
CCROS No. 9900002/2013,
MA No. 14/2013,
MA No. 221/2013,
MA No. 222/2014,
MA No. 526/2014 and
MA No. 124/2015
DATE OF DECISION : 24-07-2020
New India Assurance Co. Ltd.
...Appellant(s)
Through:- Mr. Baldev Singh, Advocate for
appellant in MA No. 168/2006 &
226/2006.
Mr. Vishnu Gupta, Advocate for
appellant in 221/2013.
Mr. R. K. Gupta, Sr. Advocate with
Mr. Uday Bhaskar, Advocate for
appellant in MA Nos. 291/2012,
382/2012, 14/2013, 222/2014 &
526/2014
Mr. Amrit Sareen, Advocate for
appellant in MA No. 654/2010
Mr. D. S Chouhan, Advocate for
appellant in MA No. 124/2015
Mr. Piyush Gupta, Advocate for
appellants in CRROS No.
9900002/2013.
Mr. R. K. Bhatia, Advocate for
appellants in CCROS No. 12/2006
v/s
Usha Baloria and others
... Respondent(s)
2
Through:- Mr. Vinod Kotwal, Advocate for
Respondent Nos. 1 to 4 in MA No.
654/2010.
Mr. Piyush Gupta, Advocate for
Respondent Nos. 1 to 5 in MA
No. 382/2012.
Mr. M. P. Gupta, Advocate for
Respondents No. 1 to 3 in MA
No. 291/2012.
Mr. Suneel Malhotra, CGSC for
respondent Nos. 5 & 6 in MA No.
291/2012 and for respondent No. 4
in MA Nos. 222/2014.
Mr. P. N. Raina, Sr. Advocate with
J. A. Hamal, Advocate for
Respondent Nos. 1 to 4 in MA
No. 221/2013
M/s. Joginder Kumar and Ankush
Manhas Advocates for Respondent Nos.
1 to 4 in MA No. 526/2014
Mr. Dheeraj Choudhary, Advocate for
Respondent Nos. 1 to 4 in MA No.
14/2013
Mr. R. K. Bhatia, Advocate for
respondent Nos. 1 to 7 in MA No.
226/2006.
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
JUDGMENT
1. This order will dispose of a bunch of appeals and the cross objections, as some of the issues raised in all the appeals, are common. Besides that additionally some small issues have been raised in some of the appeals.
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2. The deceased in the following cases, at the time of accident, were travelling in the vehicle bearing Registration No. JK02U-0759. The accident took place on February 25, 2009:
i) CIMA No. 291/2012 titled as New India Assurance Co. Ltd.
v/s Usha Baloria & Ors.
As a result of the accident the deceased Yoginder Singh Baloria died. The claimants are widow, son & daughter of the deceased. The deceased was working as a Master at the time of his death. The monthly income of the deceased as proved before the Tribunal was ₹ 17,009/- and the Tribunal while taking into consideration the personal expenses of the deceased @ 1/3rd of the total income, calculated annual dependency at ₹ 1,36,080/-. Since the age of the deceased at the time of death was proved to be 53 years, as such multiplier of 11 was applied. A sum of ₹ 10,000/- each was granted under the heads-love and affection; funeral expenses; loss of estate and loss of consortium. Total compensation awarded by the Tribunal was ₹ 15,36,880/-.
ii) CIMA No 526/2014 titled as New India Assurance Co. Ltd v/s Indra Devi & Ors.
The deceased Subash Chander died in this accident. The claimants are widow, daughters, son & mother of the deceased. The deceased was working as Master at the time of his death, whose monthly income of ₹ 23,081/- was proved before the Tribunal. The annual loss of dependency was assessed at ₹ 2,69,100/-. After deducting 1/4th of the income towards personal expenses and taking into consideration future increase in the income of deceased @ 30%, multiplier of 12 was applied in view of the age of the deceased as 44 years. Adding ₹ 5,000/- on account of funeral expenses and ₹ 10,000/- on account of loss of consortium, the Tribunal awarded total compensation of ₹ 32,44,200/-
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iii) CIMA No. 14/2013 titled as New India Assurance Co. Ltd v/s Romalo Devi & Ors.
The deceased Faquir Lal, husband of the claimant no.1 & father of the remaining claimants died in this accident. The deceased was a Head Constable in police at the time of his death. The monthly income of the deceased as proved before the Tribunal was ₹ 17,505/-, which was rounded to ₹ 18,000/- 30% increase was granted on account of future prospects. After deducting personal expenses of the deceased, the total dependency of the claimants was assessed as ₹ 1,70,400/- (14,200 x 12 = 1,70,400/-). The age of the deceased at the time of death was 50 years, so, the multiplier of 13 was applied. Adding further ₹ 2,000/- as funeral expenses, ₹ 5,000/- on account of loss of consortium and ₹ 2,500/- on account of loss of estate, the Tribunal awarded total compensation of ₹ 22,24,700/-
iv) CIMA No. 382/2012 titled as New India Assurance Co. Ltd v/s Mansa Ram & ors.
AND
v) CCROS No. 9900002/2013 titled as Mansa Ram v/s New India Assurance Co. Ltd.
The deceased Subash Chander, who worked with J&K Police died in this accident. The claimants 1 & 2 are parents, claimant no. 3 is widow & claimants 4 & 5 are sons of the deceased. The monthly income of the deceased as proved before the Tribunal was ₹ 11,734/-, which was rounded of to ₹ 11,800/. 30% increase was granted on account of future prospects. After deducting personal expenses of the deceased, the total annual dependency was assessed at ₹ 1,35,264/- (11,272 x 12 = 1,35,264). The deceased was 38 years of age at the time of his death, so multiplier of 16 was applied. Further ₹ 2,000/- were awarded on account of funeral expenses, ₹ 5,000/- 5
on account of loss of consortium and ₹ 2,500/- were awarded on account of loss of estate. The Tribunal awarded total compensation of ₹ 21,73,724/-
vi) CIMA No. 222/2014 titled as New India Assurance Co. Ltd v/s Sajjad Ahmed & ors.
The deceased Sharifa Begum died in this accident. The deceased was mother of the claimants, who was an agriculturist besides being a house wife. The monthly income of the deceased as proved before the Tribunal was ₹ 3,000/-. The deceased was 40 years of age, so multiplier of 15 was applied. The Tribunal assessed the total dependency at ₹ 5,40,000/- (36,000 x 15 = 5,40,000 ). Adding ₹ 50,000/- on account of conventional charges, ₹ 5,000/- on account of funeral expenses and ₹ 10,000/- on account of loss of love and affection, the Tribunal passed an award of ₹ 6,05,000/-
In the following appeals different vehicles were involved in the accident.
vii) CIMA No. 221/2013 titled as United India Insurance Co. Ltd v/s Zamrooda Begum & Ors.
On 08.05.2008, the deceased Zulafkar Ali was travelling in the vehicle (passenger bus) bearing registration no. JK02N- 2236 from Thathri to Kishtwar, which met with an accident near Warda Bridge resulting in death of the deceased. The claimants are widow and sons of the deceased. The deceased was a Government employee working as Assistant Lineman in PHE department at the time of his death. The monthly income of the deceased proved before the Tribunal was ₹ 6,817/- After adding future increase in the income @ 30% and deducting 1/4th of the income towards personal expenses, monthly dependency of the claimants came to ₹ 6648/- (6,817 + 2040 - 2214 = 6,648/- ). The annual dependency of the claimants 6 worked out to be ₹ 79,776/- The deceased was 40 years of age at the time of death, so multiplier of 14 was applied. ₹ 5,000/- each were awarded on account of loss of consortium; on account of loss of estate; loss of love and affection and funeral expenses. Total compensation awarded by the Tribunal was ₹ 11,36,864/-
viii) CIMA 226/2006 titled as National Insurance Company Ltd. v/s Ashu Radha & ors.
AND
ix) CCROS APPEAL No. 12/2006 titled as Ashu Radha v/s Mushtaq Ahmed and others.
On 06.10.2004, the deceased Jagdesh Raj while riding his scooter bearing registration no. JK02Q-5606 from Mishriwala towards Akhnoor was hit by the vehicle bearing registration no. JK02T-7253 near Bawa Talab, resulting in his death. The claimants are widow, sons, mother & sisters of the deceased. The deceased was a Government employee working in Handicraft department, as Accountant Store Supervisor, whose monthly income was proved before the Tribunal was ₹ 11,008, which was rounded of to ₹ 11,000/-. Adding sum on account of future prospects, the Tribunal assessed average income of the deceased as ₹ 16,500/- and deducting 1/3rd of the income towards personal expenses, the monthly dependency of the claimants was assessed at ₹ 11,000/-. Considering the age of the deceased as 35 years multiplier of 14 was applied. Adding ₹ 15,000/- each on account of loss of consortium and loss of estate and ₹ 3,000/- on account of funeral expenses, total compensation awarded by the Tribunal was ₹ 18,81,000/-
x) CIMA 124/2015 titled as United India Insurance Co. Ltd v/s Taro Devi & ors.
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On 12.01.2011, the deceased Ram Dayal while travelling in a vehicle (three Wheeler) bearing registration no. JK21-1425 met with an accident at Kala Gate, Industrial Area, Bari Brahmana, Jammu, as a result of which he suffered serious injuries which proved to be fatal. The claimants are widow, sons and daughter of the deceased. The deceased was working as driver with SICOP, whose monthly income proved before the Tribunal was ₹ 25,399/-. After deducting the personal expenses of the deceased @ 1/3rd, annual dependency of the claimants was founded to be ₹ 2,03,192/-. The deceased was 55 years of age at the time of death, so multiplier of 10 was applied. Further sum of ₹ 25,000/- were added on account funeral expenses, ₹ 5,000/- on account of loss of estate and ₹ 1,00,000/- on account of loss of consortium. Total compensation awarded by the Tribunal was ₹ 21,62,000/-.
xi) CIMA No. 654/2010 titled as Oriental Insurance Co. Ltd v/s Krishna Devi & Ors.
On 07.04.2006, the deceased Kewal Krishan, while travelling in a vehicle (Bus) bearing registration no. JK02T- 6949 met with an accident at Shashu, Kishtwar, as a result of which he died. The claimants are widow, daughter & son of the deceased. The deceased worked as Process Server in the court of Additional Sessions Judge, Kishtwar whose monthly income proved before the Tribunal was ₹ 5,945/-, which was rounded of to ₹ 5950/-. The Tribunal after adding 50% towards future increase & deducting 1/4th towards personal expenses, calculated the annual dependency at ₹ 84,000/-. The deceased was 38 years of age at the time of his death so the multiplier of 12 was applied. Further sum of ₹ 5,000/- was awarded on account of loss of estate and ₹ 7,000/- on account of loss of consortium. The Tribunal awarded total compensation of ₹ 12,72,000/-.
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xii) CIMA 168/2006 titled as New India Asurance Company v/s Balwan Singh On 15.05.2002, the deceased Surinder Singh while riding his motorcycle was hit by a vehicle (Truck) bearing registration no. JKQ-9505 at Dashmesh Nagar, Digiana , Jammu, resulting in his instantaneous death. The claimants are parents, sister and brother of the deceased. The deceased was a Government employee, working as constable in J&K Police. The monthly income of the deceased proved before the Tribunal was ₹ 5,724/-, which was rounded of to ₹ 5,700/-. The Tribunal after adding 50% towards future prospects and deducting 2/3rd of the income towards personal expenses, calculated the monthly dependency of the claimants as ₹ 2,850/- Therefore, the annual dependency of the claimants was worked out at ₹ 34,200/-. Though, the deceased was 22 years of age but since the claimants are parents of the deceased, so the Tribunal applied the multiplier of 13 on the basis of the age of the claimant no. 2 (mother), who was 48 years of age. Further compensation of ₹ 3,000/- was awarded on account of funeral expenses. The Tribunal awarded total compensation of ₹ 4,47,600/-. ARGUMENTS ON BEHALF OF INSURANCE COMPANY:
3. Mr. R.K. Gupta, learned senior counsel appearing for the Insurance Company, while addressing arguments on the issue, which is common in all the appeals, submitted that in terms of the Jammu and Kashmir Family Pension-cum-Gratuity Rules, 1964 (for short „the 1964 Rules‟), family of an employee who dies during service, is entitled to family pension for a period of seven years, which is equivalent to his last pay drawn. The aforesaid Rules further provide that after the period of seven years, during which the family pension is paid equivalent to the last pay drawn by the deceased employee, further for a period of seven years 50% of 9 the last pay drawn or twice the family pension, whichever is less, is admissible as per Sub-Rule 20(ii)(aaa) of the 1964 Rules. The amount of pension payable is more than the normal amount. It is only thereafter that the normal amount of family pension is payable. However, the payment is restricted till the date of superannuation of the employee. In the cases in hand, families of the deceased employees have been paid pension equivalent to the last drawn salary of the employees. Reference was also made to Regulation 20(ii)(bbb) of the 1964 Rules.
4. The family of the deceased/claimants cannot be paid the amount twice. Once in the form of family pension equivalent to the last pay drawn by the employee and secondly, while calculating the compensation even that period is considered. It is despite the fact that there was no loss of income to the family for this period. Reference was made to the judgment of Hon‟ble Supreme Court in Vimal Kanwar and Others v. Kishore Dan and others, 2013 ACJ 1441.
5. The principles as to how compensation in the motor accident cases has to be calculated, are well settled. It is provided that such benefits given to the dependents have to be taken care of while calculating the amount of compensation. Reference was made to the judgments of Hon‟ble Supreme Court in The Managing Director, TNSTC Ltd. v. K.I. Bindu and Others, (2005)7 SCC 171, Bhakra Beas Management Board v.
Kanta Aggarwal and others, 2008 ACJ 2372 and Reliance General Insurance Co. Ltd. v. Shashi Sharma and others, 2016 ACJ 2723. Reference was also made to the judgments of this Court in CIMA No. 127/1998 titled as Zaheeda Parveen and others v. Ghulam Mohd. Dar 10 and others decided on 06.09.2000 and CIMA No. 102/2013 titled as New India Assurance Company Limited v. Gulzar Bibi and others decided on 04.07.2018.
6. It was further submitted that the nomenclature under which the amount is being paid to the family of the deceased employee, which is equivalent to the last pay drawn, will not be relevant. The fact is that ultimately there was no pecuniary loss to the family of the deceased employee for that period. In the claim petition dependents had claimed that there was loss of pay and allowances on account of death of the bread earner of the family, hence, the compensation be assessed, accordingly.
7. It was further submitted that the 1964 Rules were framed in exercise of the powers under Section 126 of the Constitution of the then State of Jammu and Kashmir. Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006 (for short „the Haryana Rules‟) were framed in exercise of powers under Article 309 of the Constitution of India. Ultimately, what has to be seen is the amount actually received by the dependents from the State/employer. Payment of the amount equivalent to the last pay drawn and then consideration of that very period for the purpose of assessment of compensation, taking that too as loss of income, would be a bonanza for the claimants. Motor Vehicles Act as interpreted vide various judgments provides for assessment of just and fair compensation. He further submitted that it is the public money. Even if no issue was raised before the Tribunal, still the same can be taken up in appeal. The claimants can be asked to file affidavits. That can simply resolve this issue. The question is assessment of 11 fair amount of compensation. He further referred to the judgment of Hon‟ble Supreme Court in National Insurance Company Limited versus Birender and others, reported as AIR 2020 SC 434, wherein it was opined that for considering the amount received by the claimants on account of financial assistance equivalent to last pay drawn, affidavits can be filed by them before Executing Court, so that amount so received can be deducted out of the total compensation assessed. The same procedure can follow in the cases in hand as well.
ARGUMENTS ON BEHALF OF THE CLAIMANTS
8. Mr. M.P. Gupta, learned counsel for the claimants in CIMA 291/2012 submitted that the arguments sought to be raised by the Insurance Company before this Court were never raised before the Tribunal. There is no material produced on record to show as to whether any amount was payable to the family of the deceased employee or was in fact paid. In the absence of this factual matrix the issue cannot be permitted to be raised for the first time before this Court. In support of his arguments, reliance was placed upon judgment of this Court in MA No. 204/2011 titled as Reliance General Insurance Company Limited v. Sita Devi and others decided on 02.07.2018 and judgments of Hon‟ble Supreme Court in Karpagathachi and others versus Nagarathinatchachi, AIR 1965 SC 1752 and Mohani Devi and anr. Versus Prem Lata, 2010 (3) JKJ 411. Referring to judgment of Hon‟ble Supreme Court in Sebastiani Lakra and others v. National Insurance Company Ltd. and Anr., AIR 2018 SC 5034, it was submitted that the pensionary benefits payable to the family of the deceased employee 12 are not deductible while assessing the amount of compensation payable to the dependents. As per the 1964 Rules, what is payable is the family pension.
9. It was further argued that in the case in hand future prospects were not granted to the dependents of the deceased employee to which they were entitled to in terms of the judgment of Hon‟ble Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi and others, (2017) 16 SCC
680.
10. While referring to the judgment of Madras High Court in United India Insurance Co. Ltd. v. P. Sivakami @ Shantha, 2019 (2) ACJ 912, it was submitted that for claiming enhanced compensation, the claimants are not required to file appeal or cross objections as such. The issue can be raised even in the appeal filed by the Insurance Company.
11. Mr. P. N. Raina, learned senior counsel while referring to Judgment of the Hon‟ble Supreme Court in Shashi Sharma's (supra) case submitted that it has been specifically held therein by the Supreme Court that the pension is not to be deducted for the purpose of payment of compensation. Haryana Rules are quite different, if compared with the 1964 Rules applicable in the then State of J&K. There is nothing on record to suggest as to whether the family of the employee was entitled to full amount of pension as provided for in the 1964 Rules, as there are certain preconditions to be fulfilled. There being no evidence with reference thereto on record, such a plea raised by the Insurance Company, deserves to be rejected.
13ADDITIONAL ARGUMENTS IN DIFFERENT APPEALS MA No. 226/2006
12. The arguments raised by learned counsel for the claimants is that the widow of the deceased employee herein was appointed as Junior Assistant on compassionate basis and she is getting salary on account of discharge of duties by her. Besides that she is receiving family pension. However, Government Instruction No. 1, attached to Rule 24 of the 1964 Rules provided that if the claimant is being paid salary then the Dearness Allowance is payable only on the pay and not on the family pension. As the widow in the present case is not getting Dearness Allowance on the pension, hence, no deduction is possible. While referring to judgment of Hon‟ble the Supreme Court in Vimal Kanwar and others v. Kishore Dan and others, 2013 ACJ 1441, it was submitted that appointment of the widow on compassionate basis has no relevance for the purpose of assessment of compensation on account of death of an employee. He further submitted that the issue regarding deduction of amount of income tax was also dealt with in the aforesaid judgment.
CROSS OBJ. 12/2006 in MA No. 226/2006
13. In the cross-objections filed by the claimants, the contention raised is that considering the age of the deceased as 35 years, the multiplier of 14 applied, is not correct. It should be 16. It was further argued that there were seven dependents of the deceased. Deduction of 1/3rd has been made on account of personal expences. It should have been @ 1/5th in terms of 14 principles laid down in Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121. Damages on account of loss of consortium have not been awarded. Interest should have been awarded from the date of filing of the application.
MA No. 654/2010
14. Additional contention raised by learned counsel for the company in the present appeal is that the income of the deceased was calculated at ₹ 6,694/- and has been rounded off to ₹ 7,000/- by the Tribunal instead of ₹ 6700/-. If calculated properly, the amount of compensation will be reduced.
MA No. 291/2012
15. In the aforesaid appeal, learned counsel for the claimants submitted that considering the age of the deceased Government employee, future prospects have not been granted. The same should have been granted @ 15%. Besides this, compensation under other heads has also not been awarded. Relying upon the judgment of Supreme Court in APSRTC and Another versus M. Ramadevi and Ors., AIR 2008 SC 1221, it was submitted that the claimant can seek enhancement of compensation without even filing the appeal, while appearing as a respondent in the appeal filed by the Insurance Company or the owner/driver.
16. In response Learned counsel for the Insurance Company submitted that without filing appeal independently the claimants cannot seek enhancement of compensation. Law on the issue stands settled by Supreme Court in Ranjana Prakash and Ors. Versus Divisional Manager and Anr., (2011)14 SCC 639.
15MA No. 382/2012
17. Additional contention raised by learned counsel for the Insurance Company in the present appeal is that deduction on account of income tax has not been made from the salary of the deceased employee. As is evident from the salary certificate produced on record, it is only the gross salary which has been shown therein. He further submitted that the system being followed in the motor accidents cases here is that the certificates produced on record are showing gross salary of the employee and not the net salary after deduction of the income tax. As a result, undue benefit accrues to the claimants. Any amount on account of income tax accrues to the State exchequer and not to the employee even when he is in service. Reference was made to judgment of Supreme Court in Shyamwati Sharma and others v. Karam Singh and others, (2010) 12 SCC 378. It was submitted that deduction of income tax @ 30% on the gross income was approved by the Supreme Court in the aforesaid judgment.
CCROS No. 9900002/2013 in MA No. 382/2012
18. Learned counsel for the claimants submitted that no evidence was lead by the Insurance Company before the Court below or even arguments raised that any income tax was payable on the salary of the deceased employee. The age of the deceased employee here was 38 years. The future prospects were given @ 30%, whereas it should have been @ 50%.
19. Regarding income tax, the contention raised is that once the salary certificate has been produced on record, as has been issued by the employer, the presumption is that the amount of income tax has been taken 16 care of. The onus was on the Insurance Company to lead evidence otherwise. In support of the arguments reliance was placed upon the judgment of Hon‟ble Supreme Court in Vimal Kanwar and Others v. Kishore Dan and others, 2013 ACJ 1441.
DISCUSSIONS
20. Heard learned counsel for the parties and perused the relevant referred record.
21. Primarily, the learned counsels for the parties have raised the following issues, which are common in all the appeals besides additional arguments raised in some of the appeals. The common issues are being dealt with together, whereas any additional argument raised in the appeals will be dealt with separately:
"1. Whether the amount of family pension payable to the family of the deceased Government employee for any period, which is equivalent to the last pay drawn, is deductible from the amount of compensation payable to the dependents on account of death of the employee in a motor accident case?
If the answer to the question is in positive; how to deal with that amount?
2. Whether income tax has to be deducted out of the salary payable to an employee for the purpose of assessment of compensation?
3. Whether the claimants can seek enhancement of compensation without filing appeal or cross objections independently, merely in an appeal filed by the Insurance Company or owner/driver of the vehicle?17
If answer to the above question is in negative, whether the claimants can argue to sustain the award on grounds other than dealt with by the Tribunal or decided against them?
4. Whether the Insurance Company can be permitted to raise arguments in an appeal against the award of the Motor Accidents Claims Tribunal, which were not specifically raised before the Tribunal?"
FINDINGS
22. QUESTION No.1.
Whether the amount of family pension payable to the family of the deceased Government employee for any period, which is equivalent to the last pay drawn, is deductible from the amount of compensation payable to the dependents on account of death of the employee in a motor accident case ?
If the answer to the question is in positive;
how to deal with that amount?
23. To appreciate the contentions raised by learned counsel for the parties on the aforesaid issue, it would be relevant to extract the provisions of Regulation 20(ii)(bbb) of the 1964, Rules. The same reads as under :-
"(bbb) Notwithstanding anything contained in sub-clause (bb) above, where a Government servant dies while in service after having rendered not less than 7 years continuous service, the rate of family pension admissible to the beneficiary of the deceased shall be equal to the pay last drawn by the deceased officer before his death. Pension at the enhanced rates equal to the last 18 pay shall be payable for a period of 7 years from the date following the date of death of the Government servant or for period up to the date on which the deceased Government servant would have attained the age of superannuation whichever is earlier.
After having drawn family pension at such enhanced rates, it will be allowed at the rate equal to 50% of pay last drawn or twice the family pension admissible as per sub-rule (ii) (aaa) whichever is less and the amount so admissible shall be payable for a period of 7 years from the date the payment of enhanced pension as per preceding para ceases or till the deceased would have attained the age of 62 years whichever is earlier.
Thereafter, the family pension will be payable at the ordinary rates laid down in sub-rule (ii) (aaa).
These rules shall be deemed to have come into effect from 1-1-1986.
The cases which have been decided by the Accountant General from 8-5-1986 to the date of issue of this Notification shall not be re-opened and shall be treated to have been decided in relaxation of these rules.
The half of the period of Work charged service as admissible to be taken into account for normal pension under rule 17 of Jammu and Kashmir Government Work charged Employees Rules shall also be allowed to be taken into account for computing the period of seven years continuous service on the date of death of an employee for purposes of grant of family pension under this rule. "
Pending cases, if any shall be decided accordingly."
24. As the judgments referred to by learned counsel for the parties deal with the Haryana Compassionate Assistance to the Dependents of the 19 Deceased Government Employees" Rules, 2006 (for short „the Haryana Rules), the relevant parts thereof are also extracted below:
"No. G.S.R. 19/Const./Art.309/2006.-In exercise of the powers conferred by the proviso to article 309 of the Constitution of India, The Governor of Haryana hereby makes the following rules to grant the compassionate assistance by way of ex-gratia financial assistance on compassionate grounds to members of the family of a deceased Government employee who dies while in service/missing Government employee, namely:-
5.(1) On the death of any Government employee, the family of the employee would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim,-
(a) for a period of fifteen years from the date of death of the employee, if the employee at the time of his death had not attained the age of thirty-five years;
(b) for a period of twelve years or till the date the employee would have retired from Government service on attaining the age of superannuation, whichever is less, if the employee at the time of his death had attained the age of thirty-five years but had not attained the age of forty-eight years;
(c) for a period of seven years or till the date the employee would have retired from Government service on attaining the age of superannuation, whichever is less, if the employee had attained the age of forty-eight years.
(2) The family shall be eligible to receive family pension as per the normal rules only after the period during which 20 he receives the financial assistance as above is completed.
(3) The family of a deceased Government employee who was in occupation of a Government residence would continue to retain the residence on payment of normal rent/license fee for a period of one year from the date of death of the employee.
(4) Within fifteen days from the date of death of a Government employee, an ex-gratia assistance of twenty five thousand rupees shall be provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner.
(5) House Rent Allowance shall not be a part of allowance for the purposes of calculation of assistance."
25. A perusal of the Rule 20(ii)(bbb) of the 1964 Rules reveals that it starts with a non-obstante clause. It provides that notwithstanding anything contained in the Sub-Clause (bb), where a Government servant dies while in service, having rendered not less than seven years of continuous service, his family shall be entitled to family pension equivalent to the last pay drawn by the deceased employee, before his death. The aforesaid amount is payable for a period of seven years from the date of death or the date on which the deceased employee would have attained the age of superannuation, whichever is earlier.
There are three aspects important in the aforesaid rules.
1. To be eligible, a Government employee must have served the State for not less than seven years continuously.
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2. The family pension admissible to the beneficiary of the deceased would be equivalent to the last pay drawn by the deceased employee before his death.
3. The aforesaid amount is payable for a period of seven years from the date of death of the employee or the date on which he would have attained the age of superannuation, whichever is earlier.
26. Now coming to the Haryana Rules, it provides for grant of compassionate assistance by way of ex-gratia financial assistance to the members of the family of a deceased employee, who dies while in service. Rule 5 provides that such financial assistance shall be a sum equivalent to the pay and other allowance, last drawn by the deceased employee in normal course. Different periods have been prescribed for which the family of the deceased employee will get the financial assistance, considering his/her age. Sub-Rule 2 of Rule 5 is also relevant, which provides that the family shall be eligible to receive family pension only after the period during which the family receives the financial assistance as per the rules.
27. Haryana Rules came up for consideration before Hon‟ble the Supreme Court in Shashi Sharma and Others' case (supra) with reference to assessment of compensation in a motor accident case. It was opined therein that there is no definite formulae provided under the Motor Vehicles Act for assessment of compensation. Idea is to recompense the claimants for the possible loss suffered or likely to be suffered. The measure of compensation must be just and fair and secondly no double benefit should be passed on to the claimants. The compensation is not intended to be a bonanza, largesse or source of profit. If any amount is due to the dependents of the deceased even otherwise, the same shall be deductible from the 22 compensation payable under the Motor Vehicles Act. One of the major head under which the compensation is claimed by the family of a deceased Government employee is loss of income, i.e., pay and wages, which the deceased employee would have earned while in service, had he been alive. In case the employer compensates an employee for a particular period on account of loss of salary, to grant the same benefit while assessing the compensation under the Act cannot be permitted. Referring to the Haryana Rules specifically it was opined that under Rule 5 financial assistance equivalent to pay and other allowances, last drawn by the deceased employee, is granted. It is only after the period specified therein is over that the family pension is payable. Claim on account of loss of pay and wages can be made against the insurer. However, once that very amount is being paid by the employer, it will not be justifiable to calculate and pay that amount as compensation under the Motor Vehicles Act. The same would amount to double payment under the head of „loss on account of pay and wages‟ of the deceased employee. The same will result in grant of bonanza, largesse. Any amount received/receivable by the dependents of the deceased in the form of ex-gratia financial assistance, cannot be paid for the second time, under the head „loss on account of pay and allowances,. While harmoniously construing the rules vis-à-vis the compensation under the Act, it was directed that the amount so received or receivable as financial assistance equivalent to pay and other allowances, that was last drawn by the deceased employee in the normal course, has to be excluded out of the amount of compensation. Relevant paras thereof are extracted below:
"15. Be that as it may, the term compensation has not been defined in the Act of 1988. By interpretative process, it 23 has been understood to mean to recompense the claimants for the possible loss suffered or likely to be suffered due to sudden and untimely death of their family member as a result of motor accident. Two cardinal principles run through the provisions of the Motor Vehicles Act of 1988 in the matter of determination of compensation. Firstly, the measure of compensation must be just and adequate; and secondly, no double benefit should be passed on to the claimants in the matter of award of compensation. Section 168 of the Act of 1988 makes the first principle explicit. Sub-section (1) of that provision makes it clear that the amount of compensation must be just. The word "just" means - fair, adequate, and reasonable. It has been derived from the Latin word "justus", connoting right and fair. In para 7 of State of Haryana & Anr. vs. Jasbir Kaur & Ors., it has been held that expression "just" denotes that the amount must be equitable, fair, reasonable and not arbitrary. In para 16 of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., this Court has observed that the compensation "is not intended to be a bonanza, largesse or source of profit". That however may depend upon facts and circumstances of each case, as to what amount would be a just compensation.
16. The principle discernable from the exposition in Helen C. Rebello‟s case (supra) is that if the amount "would be due to the dependants of the deceased even otherwise", the same shall not be deductible from the compensation amount payable under the Act of 1988. At the same time, it must be borne in mind that loss of income is a significant head under which compensation is claimed in terms of the Act of 1988. The component of quantum of "loss of income", inter alia, can be "pay and wages" which otherwise would have been earned by the deceased employee if he had survived the injury caused to him due to motor accident. If the dependents of the deceased employee, however, were to be compensated by the employer 24 in that behalf, as is predicated by the Rules of 2006 - to grant compassionate assistance by way of ex-gratia financial assistance on compassionate grounds to the dependents of the deceased Government employee who dies in harness, it is unfathomable that the dependents can still be permitted to claim the same amount as a possible or likely loss of income to be suffered by them to maintain a claim for compensation under the Act of 1988.
17. A perusal of the scheme of Rules of 2006 would reinforce the position that the dependents of the deceased Government employee are suitably compensated for a specified period by way of financial assistance in the form of ex-gratia payment on compassionate grounds equivalent to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim. Here, we may advert to the recital of the Rules of 2006, which reads thus:
"No. G.S.R. 19/Const./Art.309/2006.-In exercise of the powers conferred by the proviso to article 309 of the Constitution of India, The Governor of Haryana hereby makes the following rules to grant the compassionate assistance by way of ex-gratia financial assistance on compassionate grounds to members of the family of a deceased Government employee who dies while in service/missing Government employee, namely:-
(emphasis supplied) Rule 2 stipulates the objects of the Rules, namely, to assist the family of a deceased/missing Government employee of Group C and D category, in tiding over the emergent situation, resulting from the loss of the bread-earner while in regular service by giving financial assistance. Rule 3 of the said Rules provides for eligibility to receive financial assistance under the 25 Rules. As per Rule 4, the eligible family members are required to submit an application in Form A for compassionate financial assistance. Rule 5, is of some significance which provides for the extent of financial assistance. The same reads thus:
"5(1). On the death of any Government employee, the family of the employee would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim.,-
(a) for a period of fifteen years from the date of death of the employee, if the employee at the time of his death had not attained the age of thirty-five years;
(b) for a period of twelve years or till the date the employee would have retired from Government service on attaining the age of superannuation, whichever is less, if the employee at the time of his death had attained the age of thirty-five years but had not attained the age of forty-eight years;
(c) for a period of seven years or till the date the employee would have retired from Government service on attaining the age of superannuation, whichever is less, if the employee had attained the age of forty-eight years.
(2) The family shall be eligible to receive family pension as per the normal rules only after the period during which he receives the financial assistance as above is completed.
(3) The family of a deceased Government employee who was in occupation of a Government residence would continue to retain the residence on payment of normal rent/license fee for a period of one year from the date of death of the employee.26
(4) Within fifteen days from the date of death of a Government employee, an ex-gratia assistance of twenty five thousand rupees shall be provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner. (5) House Rent Allowance shall not be a part of allowance for the purposes of calculation of assistance."
18. Rule 6 pertains to pending cases of ex-gratia assistance, with which we are not concerned in the present appeals. But to complete the narrative, we may refer to the said provision. It postulates that all pending cases of ex-gratia assistance shall be covered under the new Rules (i.e. Rules of 2006). Further, the calculation of the period and payment shall be made to such cases from the date of notification of the new Rules. It further provides that the families will have the option to opt for the lump sum ex-gratia grant provided in the Rules, 2003 or 2005, as the case may be, in lieu of the monthly financial assistance provided under the new Rules.
19. Reverting back to Rule 5, sub-clause (1) provides for the period during which the dependents of the deceased employee may receive financial assistance equivalent to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim. Sub-rule (2) provides that the family shall be eligible to receive family pension as per the normal Rules only after the period during which they would receive the financial assistance in terms of sub-rule (1). Sub-rule (3) guarantees the family of a deceased Government employee of a Government residence in occupation for a period of one year from the date of death of the employee, upon payment of normal rent/license fee. By virtue of sub-rule (4), an ex-gratia assistance of 25,000/- is provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner. Sub-rule (5) clarifies that 27 house rent allowance shall not be a part of allowance for the purposes of calculation of assistance.
20. Rule 5 broadly deals with two aspects. Firstly, to compensate the dependents of the deceased Government employee by granting ex-gratia financial assistance on compassionate grounds for the loss of pay and other allowances for a specified period. The second part of Rule 5 is to compensate the dependents of the deceased Government employee by way of allowances and concessions - of retaining occupation of the Government residence on specified terms, of family pension and other allowance. As regards the second part, it deals with income from other source which any way is receivable by the dependants of the deceased Government employee. That cannot be deducted from the claim amount, for determination of a just compensation under the Act of 1988.
21. The claimants are legitimately entitled to claim for the loss of "pay and wages" of the deceased Government employee against the tortfeasor or Insurance Company, as the case may be, covered by the first part of Rule 5 under the Act of 1988. The claimants or dependents of the deceased Government employee (employed by State of Haryana), however, cannot set up a claim for the same subject falling under the first part of Rule 5 - "pay and allowances", which are receivable by them from employer (State) under Rule 5 (1) of the Rules of 2006. In that, if the deceased employee was to survive the motor accident injury, would have remained in employment and earned his regular pay and allowances. Any other interpretation of the said Rules would inevitably result in double payment towards the same head of loss of "pay and wages" of the deceased Government employee entailing in grant of bonanza, largesse or source of profit to the dependants / claimants. Somewhat similar situation has been spelt out in Section 167 of the Motor Vehicles Act, 1988, which reads thus: 28
"167. Option regarding claims for compensation in certain cases.--- Notwithstanding anything contained in the Workmen‟s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen‟s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
(Emphasis supplied)
22. Indeed, similar statutory exclusion of claim receivable under the Rules of 2006 is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of Pay and wages of the deceased has already been or will be compensated by the employer in the form of ex-gratia financial assistance on compassionate grounds under Rule 5 (1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants / claimants towards the head of pay and allowances in the form of ex-gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the Rules of 2006 would come into play if the Government employee dies in harness even due to natural death. At the same time, the Rules of 2006 do not expressly enable the dependents of the deceased Government employee to claim similar amount from the tortfeasor or Insurance Company because of the accidental death of the deceased Government employee. The harmonious approach for determining a just compensation payable under the Act of 1988, therefore, is to exclude the amount received or receivable by the dependents of the deceased Government employee under the Rules of 2006 29 towards the head financial assistance equivalent to "pay and other allowances" that was last drawn by the deceased Government employee in the normal course. This is not to say that the amount or payment receivable by the dependents of the deceased Government employee under Rule 5 (1) of the Rules, is the total entitlement under the head of "loss of income". So far as the claim towards loss of future escalation of income and other benefits, if the deceased Government employee had survived the accident can still be pursued by them in their claim under the Act of 1988. For, it is not covered by the Rules of 2006. Similarly, other benefits extended to the dependents of the deceased Government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, Life Insurance, Provident Fund etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependents of the deceased Government employee, applying the principle expounded in Helen C. Rebello and Patricia Jean Mahajan‟s cases (supra).
23. A Priori, appellants must succeed only to the extent of amount receivable by the dependents of the deceased Government employee in terms of Rule 5(1) of the Rules 2006, towards financial assistance equivalent to the loss of pay and wages of the deceased employee for the period specified."
(Emphasis supplied)
28. The issue was subsequently considered by the Supreme Court in Birender and Others' case (supra). One of the issues framed therein for consideration was, whether the amount receivable by the legal representatives of the deceased under the Haryana Rules is required to be deducted as a whole or only portion thereof? The issue was considered in 30 detail while referring to the earlier judgment of the Supreme Court in Shashi Sharma's case (Supra).
29. In the aforesaid case, no clear evidence had come on record that the claimants were eligible to get financial assistance under the Haryana Rules. It was observed that the High Court instead of providing for reduction of amount receivable by the legal representatives under the Haryana Rules from the compensation amount, should have independently determined the amount and ordered payment subject to filing of affidavit by the legal representatives before the Executing Court that neither they have received any amount under the Haryana Rules nor they will claim any financial assistance therein. It was only thereafter they were entitled to withdraw the entire amount of compensation. [Reference can be made to paras 18 & 22].
30. Judgment of Hon‟ble the Supreme Court in Sabastiani Lakra and others' case (supra) will not come to the rescue of the claimants for the reason that the family pension, which was opined to be not deductible for the purpose of assessment of compensation in the aforesaid case was in the form of contribution of the deceased employee during his service career. In the aforesaid judgment, the issue was considered in general whereas in the judgment as referred to above, the specific issue was with regard to grant of benefit equivalent to the last pay drawn by the deceased employee for a particular period.
ANSWER
31. In view of the aforesaid discussions on the issue, the answer to the question framed is that the actual amount of family pension equivalent to the salary of the deceased employee for a period of seven years or till the 31 date of superannuation, as the case may be, if received by the family of the deceased, will be deductible from the amount of compensation assessed.
As in the case in hand as well, there is nothing on record to suggest whether the amount has been received or not and the quantum thereof, it is directed that the amount of compensation payable to the claimant will depend upon their filing affidavit to the effect that they have or have not received the amount of family pension equivalent to the salary, the amount thereof, if received and if not received a statement that they will not claim the same from the State. The exact amount received/receivable shall be deductible from the compensation assessed. 32. QUESTION No. 2
Whether income tax has to be deducted out of the salary payable to the Government employee for the purpose of assessment of compensation?
33. The issue was gone into by Hon‟ble the Supreme Court in Vimal Kanwar and Others' case (supra), wherein it was opined that while assessing the compensation in a motor accident case, the income tax is liable to be deducted. It was held that if the salary of a deceased employee is in taxable range, the words „actual salary‟ should be read as „actual salary less tax‟. Relevant para 21 thereof is extracted below:
"21. The third issue is „whether income tax is liable to be deducted for determination of compensation under the Motor Vehicle Act?‟ In the case of Sarla Verma, 2009 ACJ 1298 (SC), this court held, "generally the actual income of the deceased less income tax should be the starting point for calculating the compensation."32
This court further observed that "where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟. Therefore, it is clear that if the annual income comes within the taxable range income tax is required to be deducted for determination of the actual salary. But while deducting income tax from salary, it is necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head „salaries‟ he/she should keep in mind that under section 192(1) of the Income Tax Act, 1961 any person responsible for paying any income chargeable under the head „salaries‟ shall, at the time of payment, deduct income tax on estimated income of the employee from „salaries‟ for that financial year. Such deduction is commonly known as tax deducted at source („TDS‟ for short). When the employer fails in default to deduct the TDS from employee‟s salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under section 201 (1-A) of the Income Tax Act, 1961"
Therefore, in case the income of the victim is only from „salary‟, the presumption would be that the employer under section 192(1) of the Income Tax Act, 1961 has deducted the tax at source from the employee‟s salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee.
However, there can be cases where the victim is not a salaried person, i.e. his income is from sources other than salary, and the annual income falls within taxable range. In such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income 33 tax and no further tax has to be deducted from the income."
(Emphasis supplied )
34. What has been noticed in some of cases in hand and also in other cases decided by the Tribunals in the then State of Jammu and Kashmir now U.T., is that the certificates of income produced on record, even from the government departments is not showing TDS on account of income tax from the income of the deceased. It is not that in all cases income would be non-taxable as would be seen in some of the cases here, where the deceased was a government employee drawing good salary but still TDS has not been shown in the certificates issued and proved on record. Even the counsels appearing for the parties had not been careful to raise this issue before the Tribunal at the time evidence was lead.
TABLE OF INCOME TAX PAYABLE IN DIFFERENT YEARS:
Assessment Limit of non- Tax @ 10% Tax @ 20% Tax @ 30% years taxable income 2003-04 50,000 50,000 to 60,000 to Above 1.5 60,000 1.5 Lakhs Lakhs 2005-06 50,000 50,000 to 60,000 to Above 1.5 60,000 1.5 lakhs Lakhs 2007-08 1.35 Lac 1.3 to 1.5 1.5 to 2.5 Above 2.5 lakhs lakhs Lakhs 2009-10 1.5 Lac 1.5 to 3 3 to 5 Above 5 Lakhs Lakhs Lakhs 2011-12 1.6 lac 1.6 to 5 5 to 8 Above 8 Lakhs Lakhs Lakhs 34
35. One factor, which has to be kept in mind is that Motor Vehicle Act is a welfare legislation which provides for calculation and payment of just compensation on account of death or bodily injury to any person but that amount has to be just and not a bonanza for the family/dependents of the deceased. Income tax is a statutory liability and the amount has to be deducted from the salary of the deceased and deposited with the Income Tax Department. Any benefit on that account cannot accrue to the claimants as that amount will not be part of carry home salary of the deceased, on the basis of which dependency and loss of income to the family can be assessed.
36. In Sita Devi and others' case (supra), this court rejected the plea of the insurance company regarding deduction of the income tax for the purpose of assessment of compensation for the reason that no material was brought on record by the insurance company before the Tribunal to show that either the income was liable to tax or the certificate issued by the employer showing the salary of the deceased employee after deducting the income tax at source. In the absence of such evidence, the argument raised by the insurance company was rejected.
37. In Shyamwati Sharma and others' case (supra), Hon‟ble the Supreme Court had upheld the deduction on account of income tax.
38. There may be different angle to this issue. As has been opined by Hon‟ble the Supreme Court in Birender and others case (supra), such an issue could be allowed to be raised even in execution proceedings.
39. In the cases in hand also there is nothing pointed out from the material produced on record before the Tribunal that the income was liable 35 to tax. The certificates produced on record by the claimants from the employer, was not showing the income before or after deduction of tax. Hon‟ble the Supreme Court has opined that in terms of Section 194 of the Income Tax Act, it is the duty of the employer to deduct income tax at source and in case of default, he is liable for action under Section 201 of the Income Tax Act.
40. Even if the issue is examined from different perspective, we have the table of rates of income tax for different years and slab of income, which was exempted from tax. Further it is also known that there are number of tax saving schemes by investment in which an assesee can save the tax liability. If those facts are examined in the light of the income of different deceased in these cases hardly in some of the cases the income may come within the taxable limits. Hence, benefit thereof is given to the claimants. ANSWER
41. Hence, answer to the question being already available in view of judgment of Hon‟ble the Supreme Court in the case of Vimal Kanwar and others case (supra), that while calculating the amount of compensation under the Motor Vehicle Act, income tax has to be reduced out of the income of the deceased, no further opinion need to be expressed on the issue by this Court. However, in a glaring case, where the claimants claim huge income of the deceased and the compensation is assessed on the basis thereof without taking care of income tax, the issue can be permitted to be raised even in appeal.
42. It is further directed that in future wherever income certificate of an employee either in government, public or private sector is produced 36 before the Court/Tribunal in the matters where compensation is to be assessed on the basis thereof, the employer shall be duty bound to mention the amount of TDS in the certificate so issued and even the Courts/Tribunals shall also be duty bound to ensure the same before taking the same in evidence. The counsels appearing for the parties, who are officers of the court and whose primary duty is to assist the court, shall also be duty bound to ensure that proper evidence is brought on record.
43. QUESTION No 3 Whether the claimants can seek enhancement of compensation without filing appeal or cross objections independently, merely in an appeal filed by the Insurance Company or owner/driver of the vehicle?
If answer to the above question is in negative, whether the claimants can argue to sustain the award on grounds other than dealt with by the Tribunal or decided against them?
44. The issue with regard to relief to a party who is not in appeal was considered by Hon‟ble the Supreme Court in Ranjana Prakash and others v. Divisional Manager and another, (2011) 14 SCC 639, wherein while referring to the provisions of Order 41 Rule 33 CPC which enables the appellate court to pass any order, which ought to have been passed by the trial court, it was opined that the same cannot be pressed in service to seek larger or higher relief. The High Court cannot increase compensation in an appeal filed by the owner/insurer for reducing the compensation nor can it reduce the compensation in appeal filed by the claimants seeking 37 enhancement thereof, in the absence of a cross appeal. Relevant paras 7 and 8 of the aforesaid judgment are extracted below:
"7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the 38 compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
(Emphasis supplied)
45. It has been further opined in the aforesaid judgment that in exercise of power conferred under Order 41 Rule 33 of CPC, a party not in appeal against the award can address arguments to maintain the award on grounds other than considered by the Tribunal. In first appeal, it is the duty of the Court to re-appraise the entire material on record and record a finding thereon.
46. As against the aforesaid enunciation of law by Hon‟ble the Supreme Court, Division Bench judgment of Madras High Court wherein the aforesaid judgment was not referred to, cannot have a persuasive value.
47. The judgment of Hon‟ble the Supreme Court in M. Ramadevi's case (supra) also does not come to the rescue of the claimants for the reason that in the aforesaid judgment the provisions of Order 41 Rule 33 CPC were not referred to. In the aforesaid judgment, the legal issue as such regarding jurisdiction of the appellate court in a motor accident case was not examined. Otherwise, the compensation was increased in an appeal filed by the owner and driver. As against that there is a subsequent judgment in Ranjana Prakash's case (supra) dealing with the issue directly. 39 ANSWER
48. In view of my aforesaid discussions, the only conclusion can be that in an appeal filed by the insurance company or the owner/driver of the vehicle involved in the accident, seeking setting aside of award or reduction of compensation, the amount of compensation granted to the claimants cannot be increased further, however, the award can be maintained on other grounds.
49. QUESTION No. 4
Whether the Insurance Company can be permitted to raise arguments in an appeal against the award of the Motor Accidents Claims Tribunal, which were not specifically raised before the Tribunal?
50. The aforesaid issue came up for consideration before the Hon‟ble Supreme Court in U.P.S.R.T.C. Vs. Km. Mamta and others in Civil Appeal No. 1425 of 2016 decided on February 12, 2016. The aforesaid case pertained to a claim petition filed under the Motor Vehicles Act. The principles of law laid down earlier by the Hon‟ble Supreme Court in Jagannath Vs. Arulappa & Anr., (2010) 13 SCC 530, State Bank of India & Anr. Vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 on the scope of jurisdiction of appellate Court, were reiterated. Paragraphs 22 and 23 thereof are extracted below:
"22. Again in B. V. Nagesh & Anr. Vs. H. V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC 40 deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
The points for determination;
The decision thereon;
The reasons for the decision; and Where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 Madhukar v. Sangram, (2001) 4 SCC 756 at para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls 41 short of considerations which are expected from the Court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
23. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. Vs. Emmsons International Ltd. & Anr. (2011) 12 SCC 174."
(Emphasis supplied)
51. A perusal of the finding recorded by the Hon‟ble Supreme Court shows that in the first appeal, which is a valuable right of the parties, the whole case is open for rehearing both on the questions of fact and law. The first appellate Court is under legal obligation to decide all the issues arising in the case after appreciating the entire evidence. ANSWER
52. In view of the aforesaid enunciation of law, the opinion available in the form of binding precedent, the answer to the question can be read as "any of the parties have a right to raise all issues on facts and law for re-appraisal by the first appellate court on the basis of the evidence already on record".
53. In the case in hand the arguments which are sought to be raised are based on the material which is available on record. 42
PRINCIPLES OF LAW LAID DOWN FOR ASSESSMENT OF COMPENSATION:
54. The principles of law for assessment of compensation in motor accident cases, are well settled. In Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 12, Hon‟ble the Supreme Court had laid down the following principles for the purpose of application of multiplier depending upon the age of the deceased and also the amount to be deducted on account of personal expenses:
"14. 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 dependant family members is 2 to 3, one-forth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be 43 independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
16-20 xxxx
21. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, and M-7 for 61 to 65 years and M-5 for 66 to 70 years."
(Emphasis supplied)
55. In National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680, Hon‟ble the Supreme Court had laid down guidelines for future prospects and also for providing compensation under the ancillary heads such as funeral expenses, loss of estate and loss of consortium. The relevant portion of the judgment is reproduced hereinbelow:
"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%, 44 if the age of 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 self-employed 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.
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 as the rate of 10% in every three years."
56. In Arun Kumar Aggarwal and another versus National Insurance Company and others, (2010) 9 SCC 218, the issue of income of the deceased housewife for the purpose of award of compensation came up for consideration. There is elaborate discussion on the value the service rendered by a house wife. The relevant portion of the judgement is reproduced herein below:
"23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, 45 washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.
24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier."
57. ASSESSMENT OF COMPENSATION
i) MA No. 291/2012 titled New India Insurance Co. Ltd v/s Usha Baloria & Ors.
Award by the Tribunal
Age of the Deceased 53
Occupation Teacher
Monthly Income Proved ₹ 17,009
Addition for future prospects Not Granted
Number of Dependents 3
Deduction for Personal Expenses 1/3rd
Monthly Dependency ₹ 11,340
Annual Dependency ₹ 1,36,080
Multiplier applied 11
46
Funeral expenses ₹ 10,000
Consortium ₹ 10,000
General Damages Conventional Not granted
charges
Loss of estate ₹ 10,000
Loss of love and ₹ 10,000
affection
Total Compensation awarded ₹ 15,36,880
Award as per the Law
Age of the Deceased 53
Occupation Teacher
Monthly Income Proved ₹ 17,009
Addition for future prospects @15%
Number of Dependents 3
Deduction for Personal Expenses @1/3 ₹ 6,520
Monthly Dependency ₹ 13,040
Annual Dependency ₹ 1,56,480
Multiplier Applicable 11
Funeral ₹ 15,000
expenses
Consortium ₹ 40,000
General Damages Loss of estate ₹ 15,000
Total Compensation awarded ₹ 17,91,280
ii) MA No. 526/2014 titled as New India Assurance Co. Ltd.
V. Indra Devi and ors
Award by the Tribunal
Age of the Deceased 44
Occupation Teacher
Monthly Income Proved ₹ 23,081
Addition for future prospects @ 30%
Number of Dependents 5
Deduction for Personal Expenses 1/4th
Monthly Dependency -
Annual Dependency ₹ 2,69,100
47
Multiplier Applied 12
Funeral expenses ₹ 5,000
Consortium ₹ 10,000
General Damages Conventional Not granted
charges
Loss of estate Not granted
Loss of love and Not granted
affection
Total Compensation awarded ₹ 32,44,200
Award as per the Law
Age of the Deceased 44
Occupation Teacher
Monthly Income Proved ₹ 23,081
Addition for future prospects @30% ₹ 6,924
Number of Dependents 5
Deduction for Personal Expenses @1/4 ₹ 7,501
Monthly Dependency ₹ 22,504
Annual Dependency ₹ 2,70,048
Multiplier Applicable 14
Funeral expenses ₹ 15,000
Consortium ₹ 40,000
General Loss of estate ₹ 15,000
Damages
Total Compensation awarded ₹ 38,50,672
iii) MA No. 14/2013 titled as New India Insurance Co. Ltd.
v. Romalo Devi and ors
Award by the Tribunal
Age of the Deceased 50
Occupation Head Constable in
Police
Monthly Income Proved ₹ 17,505 rounded
to ₹ 18,000
Addition for future prospects @ 30% ₹ 5,400
Number of Dependents 4
Deduction for Personal Expenses @ ₹ 4,000
48
Monthly Dependency ₹ 14,200
Annual Dependency ₹ 1,70,400
Multiplier Applied 13
Funeral expenses ₹ 2,000
Consortium ₹ 5,000
General Conventional charges Not granted
Damages
Loss of estate ₹ 2,500
Loss of love and Not granted
affection
Total Compensation awarded ₹ 22,24,700
Award as per the Law
Age of the Deceased 50
Occupation Head Constable in
Police
Monthly Income Proved ₹ 17,505 rounded
to ₹ 18,000
Addition for future prospects @30% ₹ 5,400
Number of Dependents 4
Deduction for Personal Expenses @ ¼ ₹ 5,850
Monthly Dependency ₹ 17,550
Annual Dependency ₹ 2,10,600
Multiplier Applicable 13
Funeral expenses ₹ 15,000
Consortium ₹ 40,000
Loss of estate ₹ 15,000
General Damages
Total Compensation awarded ₹ 28,07,800
iv) MA No. 382/2012 titled as New India Insurance Co. Ltd.
v. Mansa Ram and ors., and CCROS No. 9900002/2013 titled as Mansa Ram Vs. New India Assurance Col Ltd.
Award by the Tribunal
Age of the Deceased 38
Occupation Constable in Police
Monthly Income Proved ₹ 11,734 rounded to ₹
11,800
Addition for future prospects @30% ₹ 3,540
49
Number of Dependents 5
Deduction for Personal Expenses @ ₹ 1,000
Monthly Dependency ₹ 11,272
Annual Dependency ₹ 1,35,264
Multiplier Applied 16
Funeral expenses ₹ 2,000
Consortium ₹ 5,000
Conventional charges Not granted
General
Damages
Loss of estate ₹ 2,500
Loss of love and Not granted
affection
Total Compensation awarded ₹ 21,73,724
Award as per the Law
Age of the Deceased 38
Occupation Constable in Police
Monthly Income Proved ₹ 11,734 rounded to
₹ 11,800
Addition for future prospects @50% ₹ 5,900
Number of Dependents 5
Deduction for Personal Expenses @1/4 ₹ 4,425
Monthly Dependency ₹ 13,275
Annual Dependency ₹ 1,59,300
Multiplier Applicable 15
Funeral expenses ₹ 15,000
Consortium ₹ 40,000
General Loss of estate ₹ 15,000
Damages
Total Compensation awarded ₹ 24,59,500
v) MA No. 222/2014 titled as New India Insurance Co. Ltd.
v. Sajjad Ahmed and Others
a. In this case, as per the judgment impugned, the
husband of the deceased Sharifa Begum was a teacher, who too died in the same accident. None of the counsels pointed out 50 about any claim petition filed in that regard. There is no cogent evidence regarding the income of the husband of the deceased for calculation of the income of the deceased in terms of clause (6) of the Second Schedule attached to the Motor Vehicle Act. However, the claimant Sajjad Ahmed in his deposition has stated that his father was drawing salary of ₹ 21,000-22,000/- per month. PW Niaz Ali has stated that the deceased Mohd. Shafi was drawing a salary of ₹ 12,000/- per month, whereas, PWs Talab Hussain and Nissar Ahmed stated that the deceased Mohd Shafi was a teacher drawing ₹ 13,000/- ₹ 14,000/- per month.
b. Apart this, in the connected two appeals i.e MA No. 291/2012 and MA No. 526/2014, the deceased were teachers and their monthly salary has been proved as ₹ 17,009/- and ₹ 23,081/- respectively.
c. In view of the attending facts and circumstances, there would be nothing wrong, if salary of the deceased husband of the claimant is taken as ₹ 14,000/- per month and applying the criteria specified in clause (6) of the Second Schedule attached to the Motor Vehicle Act, income of the deceased for assessment of compensation would come to ₹ 4,667/-, which is rounded off to ₹ 5000/-. Therefore, monthly income of the deceased assessed by the Tribunal as ₹ 3,000/- was not correct as per law.
51 Award by the Tribunal Age of the Deceased 40 Occupation House Maker Monthly Income Proved ₹ 3,000 Addition for future prospects Not granted Number of Dependents 2 Deduction for Personal Expenses Not deducted Monthly Dependency 3,000 Annual Dependency ₹ 36,000 Multiplier Applied 15 Funeral expenses ₹ 5,000 Consortium Not granted General Damages Conventional ₹ 50,000 charges Loss of estate Not granted Loss of love and ₹ 10,000 affection Total Compensation awarded ₹ 6,05,000 Award as per the Law Age of the Deceased 40 Occupation House Maker Monthly Income Proved ₹ 5000 Addition for future prospects - Number of Dependents 2 Deduction for Personal Expenses @ 1/3 ₹ 1700 Monthly Dependency ₹ 3300 Annual Dependency ₹ 39,600 Multiplier Applied 15 Funeral expenses ₹ 15,000 Loss of estate ₹ 15,000 General Damages Total Compensation awarded ₹ 6,24,000 52 vi) MA No. 221/2013 titled as United India Co. Ltd. v. Zamrooda Begum and others Award by the Tribunal Age of the Deceased 40 Plus Occupation Assistant Lineman in PHE Dept. Monthly Income Proved ₹ 6,817 Addition for future prospects @30% ₹ 2,040 Number of Dependents 4 Deduction for Personal Expenses ₹ 2,214 @1/4 Monthly Dependency ₹ 6,648 Annual Dependency ₹ 79,776 Multiplier Applied 14 Funeral expenses ₹ 5,000 Consortium ₹ 5,000 General Conventional charges Not granted Damages Loss of estate ₹ 5,000 Loss of love and ₹ 5,000 affection Total Compensation awarded ₹ 11,36,864 Award as per the Law Age of the Deceased 40 Plus Occupation Assistant Lineman in PHE Dept. Monthly Income Proved ₹ 6,817 Addition for future prospects @30 ₹ 2,045 Number of Dependents 4 Deduction for Personal Expenses ₹ 2,215 @1/4 Monthly Dependency ₹ 6,647 Annual Dependency ₹ 79,764 Multiplier Applicable 15 Funeral expenses ₹ 15,000 Consortium ₹ 40,000 General Loss of estate ₹ 15,000 Damages Total Compensation awarded ₹ 12,66,460 53 vii) MP No. 226/2006 titled as National Insurance
Company Ltd. v. Ashu Radha and ors. and Cross Appeal No. 12/2006 titled as Ashu Radha Vs. Mushtaq Ahmed and others The claim made in the Cross objections filed by the claimants is application of appropriate multiplier, and deduction on account of dependency. Damages on account of loss of consortium have also been claimed besides interest from the date of filing of the application. In the aforesaid case, the Tribunal had committed an error while deducting ₹ 1,000/- from the income of the deceased which was being contributed by him on account of GPF. Any amount saved by an employee on account of GPF is not deductible for calculating income for the purpose of assessment of compensation.
Award by the Tribunal
Age of the Deceased 35
Occupation Accountant Store
Supervisor
Monthly Income Proved ₹ 11,008 rounded to ₹
11,000
Addition for future prospects @ 50% ₹ 5,500
Number of Dependents 7
Deduction for Personal Expenses 5,500
@1/3
Monthly Dependency ₹ 11,000
Annual Dependency ₹ 1,32,000
Multiplier Applied 14
Funeral expenses ₹ 3,000
Consortium ₹ 15,000
General Conventional charges Not granted
Damages
Loss of estate ₹ 15,000
Loss of love and Not granted
affection
Total Compensation awarded ₹ 18,81,000
54
Award as per the Law
Age of the Deceased 35
Occupation Accountant Store
Supervisor
Monthly Income Proved ₹ 11,008 rounded to ₹
11,000
Addition for future prospects @50% ₹ 5,500
Number of Dependents 7
Deduction for Personal Expenses ₹ 3,300
@1/5
Monthly Dependency ₹ 13,200
Annual Dependency ₹ 1,58,400
Multiplier Applicable 16
Funeral expenses ₹ 15,000
Consortium ₹ 40,000
General Loss of estate ₹ 15,000
Damages
Total Compensation awarded ₹ 26,04,400
viii) MA No. 124/2015 titled as United India Insurance
Co. Ltd. v. Taro Devi and others
Award by the Tribunal
Age of the Deceased 55
Occupation Driver in SICOP
Monthly Income Proved ₹ 25,399
Addition for future prospects Not Granted
Number of Dependents 4
rd
Deduction for Personal Expenses 1/3
Monthly Dependency -
Annual Dependency ₹ 2,03,192
Multiplier Applied 10
Funeral expenses ₹ 25,000
Consortium ₹ 1,00,000
Conventional charges Not granted
General
Damages
Loss of estate ₹ 5,000
Loss of love and Not granted
affection
Total Compensation awarded ₹ 21,62,000
55
Award as per the Law
Age of the Deceased 55
Occupation Driver in SICOP
Monthly Income Proved ₹ 25,399
Addition for future prospects @ 15% ₹ 3,810
Number of Dependents 4
Deduction for Personal Expenses ₹ 7,302
@1/4
Monthly Dependency ₹ 21,907
Annual Dependency ₹ 2,62,884
Multiplier Applicable 11
Funeral expenses ₹ 15,000
Consortium ₹ 40,000
General Loss of estate ₹ 15,000
Damages
Total Compensation awarded ₹ 29,61,724
ix) MA No. 654/2010 titled as Oriental Insurance Co.
Ltd. v. Krishna Devi and others
The contention raised by learned counsel for the Insurance Company in this appeal regarding assessment of compensation, is merely to be noticed and rejected. The income of the deceased was calculated after carrying out deduction of ₹ 6,694/- per month, the Tribunal has merely rounded it off to ₹ 7,000/- per month. Even if it is rounded off to ₹ 6,700/- as suggested by learned counsel for the Insurance Company it will not make much difference. The calculation of compensation in any case cannot be with mathematical exactitude. The idea is to determine fair amount of compensation. If seen in the facts of the case, the compensation assessed and granted to the claimants does not deserve to be interfered with.
56 Award by the Tribunal Age of the Deceased 38 Occupation Process Server in District Court Monthly Income Proved ₹ 5,945 rounded to ₹ 5,950 Addition for future prospects ₹ 2,975 @50% Number of Dependents 4 Deduction for Personal Expenses ₹ 2,231 @1/4 Monthly Dependency ₹ 6,694 rounded to ₹ 7,000 Annual Dependency ₹ 84,000 Multiplier Applied 12 Funeral expenses Not granted Consortium ₹ 7,000 Conventional Not granted General charges Damages Loss of estate ₹ 5,000 Loss of love and Not granted affection Total Compensation awarded ₹ 12,72,000 Award as per the Law Age of the Deceased 38 Occupation Process Server in District Court Monthly Income Proved ₹ 6,945 Addition for future prospects ₹ 3,472 @50% Number of Dependents 4 Deduction for Personal Expenses ₹ 2,604 @1/4 Monthly Dependency ₹ 7,813 Annual Dependency ₹ 93,756 Multiplier Applicable 15 Funeral expenses ₹ 15,000 General Consortium ₹ 40,000 Damages Loss of estate ₹ 15,000 Total Compensation awarded ₹ 14,76,340 57 x) MA No. 168/2006 titled as National Insurance Co. Ltd. v. Balwan Singh Award by the Tribunal Age of the Deceased 22 Occupation Constable in Police Monthly Income Proved ₹ 5,724 rounded to ₹ 5,700 Addition for future prospects @ ₹2,850 50% Number of Dependents 4 rd Deduction for Personal Expenses 2/3 Monthly Dependency ₹ 2,850 Annual Dependency ₹ 34,200 Multiplier Applied 13 Funeral expenses ₹ 3,000 Consortium Not granted Conventional Not granted General charges Damages Loss of estate Not granted Loss of love and Not granted affection Total Compensation awarded ₹ 4,47,600 Award as per the Law Age of the Deceased, (a 22 Bachelor) Occupation Constable in Police Monthly Income Proved ₹ 5,724 rounded to ₹ 5,700 Addition for future prospects ₹ 2,850 @50% Number of Dependents 4 Deduction for Personal Expenses ₹ 4,275 @1/2 Monthly Dependency ₹ 4,275 Annual Dependency ₹ 51,300 Multiplier Applicable 18 Funeral ₹ 15,000 General expenses Loss of estate ₹ 15,000 Damages Total Compensation awarded ₹ 9,53,400 58 SUMMING UP ANSWER TO THE QUESTIONS FRAMED QUESTION NO 1.
58. The actual amount of family pension equivalent to the salary of the deceased employee for a period of seven years or till the date of superannuation as the case may be, if received by the family of the deceased will be deductible from the amount of compensation assessed.
As in the case in hand as well, there is nothing on record to suggest whether the amount has been received or not and the amount thereof, it is directed that the amount of compensation payable to the claimant will depend upon their filing affidavit to the effect that they have or have not received the amount of family pension equivalent to the salary, the amount thereof, if received and if not received a statement that they will not claim the same from the State. The exact amount received/receivable shall be deductible from the compensation assessed. QUESTION NO 2.
59. Hence, answer to the question being already available in view of judgment of Hon‟ble the Supreme Court in the case of Vimal Kanwar and others case (supra), that while calculating the amount of compensation under the Motor Vehicle Act, income tax has to be reduced out of the income of the deceased, no further opinion can be expressed on the issue by 59 this Court. However, in a glaring case, where the claimants claim huge income of the deceased and the compensation is assessed on the basis thereof without taking care of income tax, the issue can be permitted to be raised even in appeal.
60. It if further directed that in future wherever income certificate of an employee either in government or public or private sector is produced before the court in the matters where compensation is to be assessed on the basis thereof, the employer shall be duty bound to mention the amount of TDS in the certificate so issued and even the Courts/Tribunals shall also be duty bound to ensure the same before taking the same in evidence. The counsels appearing for the parties, who are officers of the court and whose primary duty is to assist the court, shall also be duty bound to ensure that proper evidence is brought on record.
QUESTION NO 3.
61. In an appeal filed by the insurance company seeking setting aside of award or reduction of compensation, the amount of compensation granted to the claimants cannot be increased further, however, the award can be maintained on other grounds.
QUESTION NO 4.
62. Any of the parties have a right to raise all issues on facts and law for re-appraisal by the first appellate court on the basis of the evidence already on record.
60RELIEF
63. In view of the answers to the questions framed above, the bunch of appeals, are disposed of while modifying the awards of the Tribunal in terms of the findings recorded on the issues framed above. Where no appeal or cross objections have been filed by the claimants, they will not be entitled to enhancement of compensation, even if as per law the amount calculated is more than the amount awarded by the Tribunal. However, if after recalculation or re-adjustment the final amount comes out to be same or more, as compared to the amount awarded by the Tribunal, the same shall not be reduced in the appeals filed by the insurance company.
64. As far as grant of interest is concerned, it is directed that claimants in all appeals shall be entitled to interest, as awarded by Tribunal, from the date of filing of the application and not from the date of passing of award.
65. What transpired during the hearing of the present set of appeals and while dealing with other cases in court, is that there is no system of bunching of cases. The counsels for the appellants/petitioners or the counsels for the respondents do not inform the court about the pendency of any other matter involving the same issue. Because of this, some times there are chances of anomalous orders passed. Hence, it is directed that the counsel for the insurance company or the owner and driver and wherever possible the counsels for the claimants shall inform the Court about all the cases which arises out of same accident or involve same legal issue. This shall not be limited to cases filed in this court but also before the Motor Accident 61 Claims Tribunal. This should not be limited to motor accident claim cases but all category of cases. Court should even be apprised of the factum of pendency of similar matter before other bench of this court as well.
(RAJESH BINDAL) JUDGE Jammu 24.07.2020 Raj Kumar Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. PARAMJEET SINGH 2020.07.28 11:43 I am approving this document