Allahabad High Court
Smt. Ranjan Singh And Ors. vs Shri Abbu Saeed And Anr. on 11 November, 2019
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 1. A.F.R Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 604 of 2011 Appellant :- Smt. Ranjan Singh And Ors. Respondent :- Shri Abbu Saeed And Anr. Counsel for Appellant :- Balendu Shekhar Counsel for Respondent :- Anil Kumar Srivastava,Mohd. Shamshad Khan connect with Case :- FIRST APPEAL FROM ORDER No. - 433 of 2011 Appellant :- United India Insurance Comp Ltd. Through Deputy Manager Respondent :- Smt. Ranjan Singh And Ors. Counsel for Appellant :- Aanand Mohan,Anil Kr. Srivastava Counsel for Respondent :- M.S. Khan Hon'ble Jaspreet Singh,J.
1. Heard Shri Prakash Chandra learned counsel for claimant in FAFO No. 604 of 2011 and Shri Anil Kumar Srivastava learned counsel for appellant in FAFO No. 433 of 2011.
2. These connected two FAFO arise out of the same accident. The Tribunal has made its award dated 05.03.2011 and has awarded a sum of Rs 15,62,000/- in favour of the claimant. Being aggrieved against the same the claimants have preferred an appeal for enhancement which is registered as FAFO No. 604 of 2011 whereas the insurance company being aggrieved against the aforesaid award has preferred the appeal bearing number FAFO No. 433 of 2011. Accordingly both the appeals were clubbed and have been heard together.
3. Briefly the facts giving rise to present appeals are that on 06.12.2008 at around 8:00 AM, the deceased, Amitabh Singh was
2. riding his motorcycle bearing number UP 92 E 8150 and was returning from Hindustan Bio Energy Limited towards his residence and as he had reached Kanhat Tarun Majra Pyarepur Bahad, PS Harchandpur, at the relevant time, a truck bearing number UP 32 T 3490 which was coming from opposite direction and was being driven rashly and negligently came on wrong side of the road and hit the motorcycle, as a result, the deceased Amitabh Singh received grievous injuries and died on the spot. The FIR in respect of the aforesaid incident was lodged on the same day. It was further pleaded that the deceased was a pharmacist and was in service in the Department of Prison posted at Kanpur Dehat and was earning Rs. 16,040/- per month.
4. It is with aforesaid averments that the Claim Petition no. 21 of 2009 was filed before the Motor Accident Claims Tribunal/Additional District Judge, Court No. 1 Lucknow. The owner of truck Shri Abu Saed filed his written statement. The defense taken by the owner was that the truck bearing number UP 32 T 3490 was being driven at a very safe and controlled speed. It was further pleaded that it was actually the motorcyclist who was coming at a high speed from opposite direction and was driving rashly and negligently and despite the truck driver having taken all possible precautions i.e. using the horn as well as applying brakes to slow the speed, however, the motorcycle was at such a high speed that it came and dashed the backside of truck and overturned due to which the person driving the motorcycle suffered injuries and died and thus the accident was on account of the negligence of the motorcyclist.
5. It was alternatively pleaded that even otherwise it would be a case of contributory negligence and it was pleaded that the truck was duly insured with the United India Insurance Company Ltd, and the driver also had a valid and effective driving license and
3. the registration papers were also complete, thus any award was liable to be indemnified by the Insurance Company.
6. The insurance company also filed its separate written statement and in para 12 it took a plea that the truck in question was not being driven rashly and negligently and also pleaded that the accident happened on account of rash and negligent driving of the motorcyclist.
7. It was in view of the aforesaid pleadings that the Tribunal framed five issues and the claimants examined Shri Ambreshwar Singh (the brother of the deceased) as the witness. Whereas no witness in shape of the truck driver was examined by the owner. The tribunal while considering the evidence, both oral and documentary, found that the accident had occurred on account of rash and negligent driving of the truck since PW-2 was an eyewitness and despite his cross examination there was no discrepancy or contradiction in his testimony and it cast no doubt on the version and narration of the accident. The Tribunal also opined that the truck in question was duly insured with the insurance company and its driver had a valid and effective driving license. The question regarding contributory negligence was also considered along with issue number 1 and the tribunal did not find any favour with the plea raised by the opposite parties coupled with the fact that site plan of the accident was also brought on record which clearly indicated that the truck had swerved on wrong side of the road and hit the motorcyclist and as such it could not be found that the motorcyclist had contributed to the aforesaid accident.
7. While considering the quantum, the Tribunal found that the deceased was working in Department of Prison and his salary certificate was also brought on record. His age was determined to be 38 years. However while considering the salary the Tribunal has taken the same to be Rs 15,000/- per month and thereafter
4. deductions of income tax has been made. The tribunal has also allowed future prospects @30%. The Tribunal also held that since the wife of the deceased was also an earning member therefore in such circumstances it made a deduction of 50% towards personal expenditure and as such a total sum of Rs 15,62,000/- was awarded which included the sum of Rs 2,500/- towards loss of estate, Rs 2,000/- towards funeral expenses and Rs 5,000/- towards loss of life partner. Thus a total sum of Rs 15,62,000/- along with 6% interest has been awarded by means of award dated 05.03.2011. It is this award which has been assailed by the appellants.
8. First this Court takes up the plea raised by Shri Anil Kumar Srivastava, learned counsel appearing for insurance company in FAFO no. 433 of 2011. The primary submission of learned counsel for appellant is that the tribunal had erred in failing to hold that the alleged accident was not solely on account of rash and negligent driving of the truck driver. It is further submitted that according to the version of the claimant it has been indicated that soon after the accident another vehicle i.e. a Santro car also came and dashed against the truck therefore it could not be ruled out regarding the involvement of aforesaid Santro car. It is further been urged that as per newspaper cutting, a copy of which has been annexed as Annexure No. 9 with the affidavit in support the application for interim relief filed before this Court, which reports that on account of dense fog the accident occurred wherein the deceased expired and on the strength of the aforesaid newspaper cutting it has been urged that since the circumstance which indicate that there was dense fog and on account of the same the accident occurred and since the truck driver was not examined consequently the finding returned on issue number 1 and 3 is not based on cogent appreciation of evidence.
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9. Learned counsel for the insurance company has further urged that initially the insurance company had made an application under section 170 of the Motor Vehicles Act which was rejected by the Tribunal by means of order dated 15.09.2010. However later another application under Section 170 of the Act 1988 was moved by the appellant insurance company which was allowed on 14.02.2011. Thereafter the matter was fixed on 23.02.2011 on which date the insurance company had made an application seeking recall of order dated 11.10.2010 by which the opportunity to lead the evidence was closed by the court however the said application was also rejected and thereafter the matter was reserved for orders consequently it has given rise to the judgment dated 05.03.2011 and it has been submitted that once the application of the insurance company under section 170 of the Motor Vehicles Act was allowed on 14.02.2011 thereafter no opportunity was granted to the insurance company to lead the evidence as the insurance company was to summon the driver of the truck for the purpose of buttressing their defense which has been improperly rejected by the Tribunal. Accordingly, it has been submitted that the award dated 05.03.2011 is bad in eyes of law since an opportunity has been deprived to the insurance company.
10. Per contra, Shri Prakash Chandra learned counsel appearing for claimants has submitted that initially the applications under Section 170 of Motor Vehicles Act was rejected on 15.09.2010 and later the opportunity of the insurance company to lead the evidence was also closed on 11.10.2010.
11. Even though by means of order dated 14.02.02011 the court permitted the insurance company to contest on all the grounds yet it made the application for recalling of order dated 11.10.2010 after more that eight months and that too with the sole purpose of delaying the proceedings. It is further been submitted that after the application was rejected on 23.02.2011 the insurance company did
6. not assail the said order further. Once the matter was fixed for judgment thereafter there is no purpose for the insurance company to lead evidence coupled with he fact that where the question regarding the negligence was already established and the insurance company had already participated in the proceedings and had cross examined the claimant witness and the owner did not examine the driver. In the aforesaid circumstances it could not be said that no opportunity was granted to the insurance company.
12. The Court has considered the rival submissions and also perused the records. On the perusal of the record it would indicate that on the date of the accident i.e. 06.12.2008 the brother of the deceased Shri Ambrishwar Singh had primarily lodged the FIR in which a clear averment was contained that the accident had occurred on account of rash and negligent driving of the truck driver. In pursuance of the aforesaid FIR, a criminal case was also lodged against the driver of the truck. The certified copy of site map was also brought on record. The site plan clearly indicates that the motorcycle which was being driven by the deceased and seen by the eyewitness was coming on left side of the road from West to East i.e. from Lucknow side towards Raibarailly side. It however indicates that the truck which was going from the Raiberailly side and ought to have been on its left side rather it has completely swerved and had moved on its right side and has hit the motorcycle. From the perusal of site plan it is clear that the truck was found to be on wrong side and therefore upon the same coupled with the testimony of the eye witness Shri Ambrishwar Singh who has been cross examined by the insurance company, no material contradiction or inconsistency could be elicited from his testimony.
13. Moreover the eyewitness has completely supported the version and accordingly upon consideration of the evidence brought on record, the findings returned by the Tribunal in so far
7. as issue number 1 and 3 is concerned, this Court does not find that there is any scope for interference therein.
14. The submission of the learned counsel for the appellant is that it has been deprived of an opportunity to contest the claim on merits. As far as this submission is concerned it would be seen that the insurance company has merely raised a defense which is not in its personal means of knowledge. It is borrowed from the plea which was raised by owner of truck while filing his written statement which is dated 07.05.2008 whereas written statement filed by the insurance company is dated 04.09.2009. In light of the documentary evidence which was brought on record coupled with the evidence of the eyewitness i.e. PW-2 it is clear that the accident had occurred on account of rash and negligent driving of the truck in question. Surprisingly the truck owner has not preferred any appeal and at no point of time the truck driver was ever examined as an eyewitness to support the plea. The insurance company also did not made any application to summon the truck driver as a witness rather only an application made at the late stage on 23.02.2011 seeking to recall the order dated 11.10.2010 by which its opportunity to lead the evidence had been closed while the matter was ripe and fixed for final hearing. Significantly on 23.02.2011 the matter was heard and also reserved for judgment and thereafter the award was pronounced on 05.03.2011. From the record it would indicate that the insurance company has not made any effort to seriously contest the claim petition. Once its application under section 170 had been dismissed and consequently its opportunity to lead evidence had been closed on 11.10.2010 no effort to assail the said orders was made by the insurance company. The learned counsel for the insurance company could not indicate any fresh material which was brought on record which could establish that the insurance company has come in possession of certain new facts or circumstances which
8. justified the making of an application for seeking recall of order dated 11.10.2010.
15. Under the circumstances where insurance company has not made the effort to lead evidence of its own and rather had already cross examined the claimant witness thereafter at the late stage where the claim petition was ripe for final hearing attempt to derail the entire proceedings by means of repeated applications and seeking summoning of the driver, the same could not be construed as the bonafide attempt coupled with the fact that in the entire memo of appeal the ground though has been taken in its appeal however the emphasis is merely upon the contributory negligence coupled with the facts reliance has been placed on the newspaper cutting which indicated that on account of dense fog the accident occurred. Neither the newspaper cutting was placed before the Tribunal nor any such pleadings is present in either the FIR or in the claim petition, neither in the written statement of any of the opposite parties and thus at a later stage, an attempt to carve out new case on the basis of newspaper cutting does not appear to be a bonafide defense. Accordingly, the submission for the reasons as mentioned above does not find favour of this Court. Accordingly the appeal preferred by the insurance company i.e. FAFO No. 433 of 2011 does not have merit and is accordingly dismissed.
16. Now coming to the FAFO 604 of 2011, learned counsel for claimants has raised his argument on following grounds:
16.1 That the Tribunal has erred in considering the salary of deceased to be Rs 15,000/- whereas according to salary certificate which was brought on record it indicated that gross salary of deceased was Rs 16,040/-. It is further been submitted by the learned counsel for claimants that the Tribunal has also incorrectly made income tax deduction of Rs 27,000/- @20% coupled with the fact that it has adopted an unsound reasoning of deducting
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50% towards personal expenses solely on the ground that the claimant no. 1 i.e. the wife of the deceased was also a earning member. The submission is that where there were five dependents of the deceased thus according to the decision of the Apex Court in the case of Sarla Verma & Ors vs Delhi Transport Corporation & anothers (2009) 6 Supreme Court Cases 121 and subsequent constitution bench decision in the case of National Insurance Company Limited vs Pranay Sethi (2017) 16 Supreme Court Cases 680 the Tribunal ought to have made a deduction of 1/4th and 50% deduction is totally unwarranted. It has also been submitted that the tribunal has added for the future prospect of deceased @ 30% whereas the percentage ought to have been taken at 50% considering the age of the deceased which was 38 years at the time of accident. It is further been submitted that the compensation for non-pecuniary damages which has been awarded is extremely low and is not in accordance with the amount which has been fixed by the Apex Court in the case of Pranay Sethi (Supra).
17. Learned counsel for the appellant has also submitted that while disbursing the amount the tribunal has put an embargo upon wife of deceased in as much as a sum of Rs 6 lakhs has been awarded to her out of which Rs 1,50,000/- has been directed to be paid by means of a crossed cheque and remaining Rs 4.5 lakhs have been directed to be paid to her in shape of fixed deposits maturing after 5, 7 and 9 years respectively. It has been submitted that this kind of restriction imposed by Tribunal is not in sound exercise of discretion especially considering the fact that children of deceased have already attained a age where they are taking specialized and higher education in the filed of engineering and therefore by placing these unnecessary fetters it also creates a restriction which needs to be set aside.
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18. Shri Anil Kumar Srivastava learned counsel appearing for insurance company in FAFO no. 604 of 2011 has submitted that the Tribunal has correctly assessed the compensation coupled with the fact that death in family is not to be considered as a bounty rather the Tribunal has fairly considered the compensation which is just and appropriate and it is with aforesaid principle in mind that the Tribunal has considered all aspects of the matter and has correctly made the assessment and has awarded the sum of Rs 15,62,000/- to claimants.
19. Considering the submissions of the learned counsel for the parties this Court has considered the material available on record and also the finding recorded by the Tribunal on issue no. 5. The record indicates that the salary certificate which was issued and duly verified by the Senior Superintendent of the Central Prisons at Naini, Allahabad indicated that the deceased Amitabh Singh was drawing a total salary of Rs 16,040/-. As far as his age is concerned the same was verified on the basis of documents in which he was found to be of 38 years. It is also not disputed that the deceased was survived by his wife, three minor children and mother. The decision in cases of Sarla Verma & Ors vs Delhi Transport Corporation & anothers and National Insurance Company Limited vs Pranay Sethi is being taken note of and relevant para of the aforesaid decisions are being reproduced hereinafter for ready reference.
19.1 In the case of Sarla Verma & Ors vs Delhi Transport Corporation & anothers Hon'ble Apex Court has observed as under:
''30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the
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deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
42. 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, M-7 for 61 to 65 years and M-5 for 66 to 70 years.' 19.2 In the case of National Insurance Company Limited vs Pranay Sethi Hon'ble Apex Court has observed as under:
''37. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:-
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one- fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
31. 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
12. 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 dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. 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 the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning 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."' ''39. In Reshma Kumari, the three-Judge Bench, reproduced paragraphs 30, 31 and 32 of Sarla Verma and approved the same by stating thus: (Reshma Kumar Case, SCC pp. 90- 91, paras 41-42) "41. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants.
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42. In our view, the standards fixed by this Court in Sarla Verma on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out."' ''40. The conclusions that have been summed up in Reshma Kumari are as follows:-
"43.1. In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the Table prepared in Sarla Verma read with para 42 of that judgment.
43.2. In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163- A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed.
43.3. As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.
43.4. The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death.
43.5. While making addition to income for future prospects, the Tribunals shall follow para 24 of the judgment in Sarla Verma.
43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 41 above."
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41. On a perusal of the analysis made in Sarla Verma which has been reconsidered in Reshma Kumari, we think it appropriate to state that as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the tribunals and courts should be guided by conclusion 43.6 of Reshma Kumari. We concur with the same as we have no hesitation in approving the method provided therein.
42. As far as the multiplier is concerned, the claims tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of Sarla Verma read with paragraph 42 of the said judgment. For the sake of completeness, paragraph 42 is extracted below:-
"42. 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 ultiplier 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, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
''44. At this stage, we must immediately say that insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and "income" means actual income less than the tax paid. The multiplier has already been fixed in Sarla Verma which has been approved in Reshma Kumari with which we concur.' ''45. In our considered opinion, if the same is followed, it shall subserve the cause of justice and the unnecessary contest before the tribunals and the courts would be avoided.' ''52. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because
15. that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.'
20. From the above it would indicate that in so far as deduction of 50% by the Tribunal on account of personal expenditure of the deceased is concerned, the same is not in consonance with the principles as laid down by Apex Court, which ought to have been 1/4th.
21. Even the tax liability of 20% which has been deducted is also not in sound exercise of jurisdiction. It will be relevant to mention that since the deceased was a government servant thus as per the prevailing income tax laws it is incumbent for the employer to deduct tax prior to the payment of the salary and moreover since the salary is Rs 16,040/- per month thus after deduction of tax at source there can be no scope of further deduction and even otherwise the deceased would be in the non-
16. taxable bracket. However the reason given by the Tribunal is erroneous in as much it held that by adding for future prospect the income comes in the taxable bracket but it failed to consider and note that with passage of time the exemption limits of income tax also increase from time to time. This aspect of the matter has been considered by the Apex Court in the case of Manasavi Jain vs Delhi Transport Corporation (2014) 13 Supreme Court Cases 22 and the relevant paras read as under:
''8. This Court in Shyamwati Sharma & Ors. Vs. Karam Singh & Ors. (2010) 12 SCC 378, while considering the issues of deduction of taxes, contributions etc., for arriving at the figure of net monthly income, held that(SCC p. 380, para 9):
"while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc., should not be excluded from the income. The deduction towards income tax / surcharge alone should be considered to arrive at the net income of the deceased."
9. In the present case, there is no dispute about of the salary of the deceased. As per salary certificate, his monthly income and deductions are as under:
Monthly Income Rs. 26,950-00 Deductions Provident Fund 8,000-00 House Rent 525-00 G.I.S. 120-00 Income Tax 2,500-00
So, from the above table, it is clear that except an amount of Rs.2,500/- towards Income Tax, rest of the amounts were voluntarily contributed by the deceased for the welfare of his family. Considering the decision of this Court in Shyamwati Sharma & Ors., (supra), in our opinion, except contribution towards Income Tax, the other voluntary contributions made by the deceased, which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to decide his net salary or take home salary. Hence, the take home salary of
17. the deceased comes to Rs.24,450/- which can be rounded to Rs.25,000/-.'
22. Also the Apex Court in the case of Vimal Kanwar & Others vs Kishore Dan & others and as reported in (2013) 7 Supreme Court Cases 476 where considering and following the case of Sarla Verma (Supra) it has been held as under:
The third issue is "whether the income tax is liable to be deducted for determination of compensation under the "Motor Vehicles Act" In the case of Sarla Verma & Anr. (Supra), this Court held "generally the actual income of the deceased less income tax should be the starting point for calculating the compensation." This Court further observed that "where the annual income is in taxable range, the word "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" one 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 salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1A) 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
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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 tax and no further tax has to be deducted from the income.
23. Thus this Court finds that 20% deduction made towards tax was unwarranted.
24. Similarly the consideration of future prospects has also not been rightly considered and is against the provisions as settled by the Apex Court in above mentioned decisions which has been reproduced for ready reference.
24.1 In the case of National Insurance Company Limited vs Pranay Sethi Hon'ble Apex Court has observed as under:
''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%, if the age of the 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.'
25. Thus in the present case the deceased was in a permanent job having a salary which was subject to enhancement with passage of time accordingly applying the principle of Pranay Sethi (Supra) 50% ought to be added towards future prospect to the salary of the deceased.
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26. As far as grant of non-pecuniary damages is concerned the same has been settled by the Apex Court in the case of Pranay Sethi and if seen in light thereof it would indicate that the award made by Tribunal is grossly inadequate.
27. The grant of non-pecuniary damages under the head of loss of consortium as considered by Apex Court is not only available to the wife on account of death of her husband but is also available for the children on account of losing their parent. Similarly, it is also available to the mother who has lost her son. This aspect of the matter has been considered by the Apex Court in the case of Magma General Insurance Co. Ltd vs Nanu Ram 2018 SCC OnLine SC 1546 and the relevant part is reproduced as under:
''8.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).
The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant.
In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.
8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious term which encompasses ''spousal consortium', ''parental consortium', and ''filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.
20. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection,society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles
21. of awarding compensation under ''Loss of Consortium' as laid down in Pranay Sethi (supra).'
28. Considering the aforesaid this Court has no hesitation to conclude that the amount as calculated by the Tribunal is not in accordance with the settled legal principals and this Court redetermines the compensation as under:
Income (Rounded off) : Rs 16,000/- Per Month Add: Future Prospect @ 50% : Rs 8,000 Per Month Net Income: Income after deduction of 1/4th : Rs (24,000 - 6,000) = Rs 18,000/- per month Age : 38 years Multiplier : 15 Thus compensation payable :Rs.18000x15x12 = Rs 32,40,000/- Conventional head of consortium: (a) Spouse : Rs 40,000/- (b) Parental : Rs 40,000/- (c) Filial : Rs 40,000/- (d) Funeral expenses : Rs 15,000/- (e) Loss of estate : Rs 15,000/- ______________________________________________ Thus, total compensation payable shall be : Rs 33,90,000/-
29. In view of the above the appellant shall be entitled to be a total sum of Rs 33,90,000/- Any amount paid to the appellant shall be deducted from aforesaid amount and the remaining shall be payable to claimants in accordance with the guidelines given in the award itself. As far as the restrictions imposed for grant of compensation to the wife of the deceased is concerned the same is set aside and the insurance company would be liable to satisfy the award by making the payment to the wife, mother and such children of the deceased who have attained majority however the portions in respect of minor children shall be deposited in an
22. interest bearing instrument (FDR) into a nationalised bank for the duration of such minority under guardianship of their mother.
30. With the aforesaid, and subject to the above determination of compensation the award dated 05.03.2011, shall stand modified. The FAFO no. 604 of 2011 stands partially allowed. The record of Tribunal concerned shall be remitted to Tribunal within a period of two weeks. Any amount deposited before this Court by insurance company shall also be remitted to the Tribunal to be released in favour of claimants in light of observations made in the judgment. There shall be no order to costs. The aforesaid two FAFO stand decided accordingly.
Order Date :- 11.11.2019 J.K. Dinkar