Smt. Pratibha Rai Vs Mahendra Bante

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 144 of 2016

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Smt. Pratibha Rai, W/o Late Ashok Kumar Rai, Aged About 45 Years, Occupation House Wife

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Aditya Kumar Rai, S/o Late Ashok Kumar Rai, Aged About 23 Years,

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Ram Adhar Rai @ Ramadhar Rai S/o Late Chandrapati Rai, Aged about 80 years, Occupation- Nil …..(deleted as per Hon’ble Court order dated 17.03.2022). Claimant No.4 Champa Rai (Died). Appellant No.1 to 3 are R/o Collage Road Kaserpara, Sitapur, P.S. & Tahsil Sitapur, District Surguja, Chhattisgarh.

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---- Appellants

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Versus

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Mahendra Bante, S/o Haribhaou Bante, Aged About 23 Years, Occupation Driver, R/o Village Pardi, Post Mohgaon P.S. & Tahsil Mohadi, District Bhandara, (Maharashtra).

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Ramdulare, S/o Dilasha Ram Sharma, Aged About 61 Years, Occupation Owner, R/o Plat No. 69, Ramabai Nagar, Nagpur, (Maharashtra).

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Branch Manager, United India Insurance Company Ltd., Mohata Collage Road Mohata Petrol Pump Medical Collage Sakari, Nagpur (Maharashtra) Through Branch Manager United India Insurance Company Ltd., Brahma Road Ambikapur, District Surguja, Chhattisgarh.

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---- Respondents

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For Appellants : Mr. A. N. Pandey, Advocate. For Respondent No.3 : Ms. Swati Agrawal, Advocate on behalf of Mr. Pankaj Agrawal, Advocate.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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08.05.2024

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This appeal filed by the appellants/claimants under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “M.V. Act”) is directed against the award dated 21.09.2015 passed by the First Additional Motor Accident Claims Tribunal, Ambikapur, District Surguja, Chhattisgarh

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(hereinafter referred to as “Claims Tribunal”) in Motor Accident Claim Case No.219 of 2014, whereby learned Claims Tribunal awarded a compensation of Rs.46,35,576/with interest @ 7% per annum from the date of filing of claim petition till its realization.

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Brief facts for disposal of this appeal, in a nutshell, are that, on 22.09.2014, at about 3.00 PM, Ashok Kumar Rai (deceased) was returning from Middle School, Kuniyakala on his motorcycle bearing registration No.CG-15-CD-7791 to his house situated at Sitapur. When he reached behind Jaiswal Hotel, near Poprenga Nala at Karabel main road, respondent No.1 while driving the Truck bearing registration No.CG-04-JC-0933 (hereinafter referred to as “offending vehicle”), rashly and negligently, dashed Ashok Kumar Rai, due to which, he suffered grievous injuries and died. Thereafter, the matter was reported to Police Station Sitapur and Crime No.206 of 2014 was registered against respondent No.1 for the offence punishable under Sections 279 and 337 of Indian Penal Code, 1860.

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It is stated on the part of the claimants in the claim petition that on the date of the accident, age of the deceased was 49 years and was earning Rs.62,309/- per month while working as Headmaster in Middle School, Kuniyakala as

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well as from the work of tuition. Due to the casual death of husband, father and son of appellants/ claimants, there is an irreparable loss to the appellants. Therefore, the appellants/claimants preferred an application to claim a total compensation of Rs.97,86,036/-.

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When the claim application for compensation was filed by the claimants being wife, son and parents of the deceased before the Claims Tribunal against the driver, owner and insurance company of the alleged offending vehicle, the Claims Tribunal considered the net income of deceased Ashok Kumar Rai as Rs.44,169/- per month after deducting General Provident Fund (‘GPF’) and General Insurance Scheme (‘GIS’). Considering the number of dependents, deducted 1/3rd towards personal, income of deceased was assessed as Rs.29,446/- per month i.e. Rs.3,53,352/- per annum and considering the age of the deceased between 46-50 years, after applying multiplier of 13, the total loss of dependency works out to Rs.45,93,576/-. It was further held that the claimants are also entitled to Rs.20,000/- towards funeral expenses. Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of love and affection, as such, awarded total compensation of Rs.46,35,576/- with interest @ 7% per annum from the date of filing of the claim petition till its realization. Hence, this appeal for enhancement.

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Learned counsel for the appellants/claimants submits that learned Claims Tribunal has wrongly assessed the monthly income of deceased as Rs.44,169/- while deducting Rs.3,000/- towards GPF and Rs.150/- towards GIS. He further submits that learned Claims Tribunal erred in not awarding any amount towards future prospects. It is contended that learned Claims Tribunal has awarded meagre amount of compensation in other conventional heads. Reliance has been placed on the judgment rendered by Hon’ble Supreme Court in case of Vimal Kanwar and others v. Kishore Dan and others reported in (2013) 7 SCC 476 to submit that the amounts of GPF and GIS cannot be considered as pecuniary advantage, therefore, these amounts are not liable to be deducted. It is further contended that learned Claims Tribunal has taken net income of deceased for calculating the amount of compensation and not the gross income as held by Hon'ble Supreme Court in case of National Insurance Co. Ltd. v. Indira Srivastava and others reported in (2008) 2 SCC 763 . He lastly submits that the learned Claims Tribunal had awarded meagre amount of compensation, which needs to be enhanced suitably.

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Per contra, learned counsel appearing for respondent No. 3/insurance company supports the award and submits that

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the learned Claims Tribunal has rightly passed the award in accordance with law by taking into consideration the amount of net income shown in the last salary slip, which need not required any interference.

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I have heard learned counsel for the parties and perused the record of the claim case minutely.

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In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza.

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First of all, it would be appropriate to consider the question with regard to income of deceased Ashok Kumar Rai.

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In the claim petition, it has been stated by the claimants that deceased was working as a Headmaster in the Middle School, Kuniyakala, Tehsil Mainpat, District Surguja and earning Rs.47,319/- per month. He also earned Rs.15,000/from the work of tuition, but the claimants have not produced any documentary evidence to prove the fact that deceased was earning Rs.15,000/- from tuition work.

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To prove the income of deceased, appellants/claimants have examined S.K. Jangde (AW-2) Block Education

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Officer, who stated in his evidence that deceased Ashok Kumar Rai was working as Headmaster in Middle School, Kuniyakala. He has produced the establishment pay-bill, in which, deceased’s Basic pay of Rs.18,120/-, Grade pay of Rs.4300/-, Dearness allowance of Rs.22,420/-, Trib allowance of Rs.310/-, House rent of Rs.1,569/- and other allowances of Rs.600/-, as such, total gross salary of Rs.47,319/- has been mentioned. The said income has not been accepted by the Claims Tribunal and fixed the net income of deceased as Rs.44,169/- taken into account the fact that GPF of Rs.3,000/- and GIS of Rs.150/- has to be deducted from the gross income of deceased and thereby learned Claims Tribunal had taken the net salary after deductions.

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The deductions towards GPF and GIS are the investments/savings of the Government employee, which is for the benefit of the employee and his family members in future. Therefore, the said amount cannot be deducted from the income while calculating the monthly income of any of the employee. The monthly income would include the amount of General Provident Fund and General Insurance Scheme as the income. The employee deposits the amount mentioned in aforesaid two heads to some scheme and the said amount is refundable with interest. The amount of

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House Rent Allowance and other allowances except Stationary Allowance shown in the salary slip are also enjoyed by the family members, therefore, the said amounts are also to be treated as the part of income of the deceased.

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In the considered opinion of the Court, the said calculation appears to be against the principles laid down in case of Vimal Kanwar (supra) wherein the Supreme Court held that the amounts of Provident Fund, Pension, Insurance receivable by the claimants do not come within the periphery of M.V. Act to be termed as pecuniary advantage and therefore, those amounts are not liable for deduction. Paragraphs-18 & 19 of the said decision is relevant here and reproduced below for easy reference :-

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“18. The first issue is “whether provident fund, pension and insurance receivable by the claimants come within the periphery of the Motor Vehicles Act to be termed as ‘pecuniary advantage’ liable for deduction.”

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The aforesaid issue fell for consideration before this Court in Helen C. Rebello v. Maharashtra SRTC, (1999) 1 SCC 90. In the said case, this Court held that provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits etc., are all a “pecuniary advantage” receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount

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will not come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction. The following was the observation and finding of this Court : (SCC pp.111-12, para 35).

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“35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which, the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc, though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co-relation with the amount receivable under a statute

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occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (the deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.”

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In view of evidence brought on record by appellants/claimants, particularly, evidence of A.K. Jangde (AW-2) Block Education Officer, Mainpat, learned Claims Tribunal erred in taking net income of deceased for calculating the amount of compensation instead of gross income. In case of Indira Srivastava (supra), Hon'ble Supreme Court has held thus :-

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“19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included

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for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.”

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From the record, it is evident that deceased Ashok Kumar Rai was working as Headmaster in Middle School, Kuniyakala and his gross income is Rs.47,319/- per month according to establishment pay-bill (Ex.P/12C) i.e. Rs.5,67,828/- per annum. In view of the decisions rendered by Hon’ble Supreme Court in cases of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680 there will be an addition of 30% of established income where the victim/deceased is in between 46-50 years of age and is self employed. After adding 30% i.e. Rs.1,70,348/- (5,67,828 x 30%), total annual income of the deceased Ashok Kumar Rai comes to Rs.7,38,176/- (5,67,828 + 1,70,348).

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Insofar as the deduction towards income tax is concerned, in the financial year 2014-15, tax slab is as follows :

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Upto Rs.2,50,000	Nil
Upto Rs.2,50,001 to Rs.5,00,000	10%

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Upto Rs.5,00,001 to Rs.10,00,000	20%
Above Rs.10,00,000	30%

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From the yearly income of deceased, there will be statutory deduction towards income tax. In view of aforesaid income tax slab for the year 2014-15, income upto Rs.2,50,000/- is exempted and on the income exceeding between Rs.2,50,001/- to 5,00,000/-, 10% of the said income is required to be paid as income tax and further, income up to Rs.5,00,001 to Rs.10,00,000/-, 20% of the said income is required to be paid as income tax.

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In view of above, from the yearly income of deceased, after deducting Rs.2,50,000/- towards exemption, taxable income comes to Rs.4,88,176/-. There will be a tax @ 10% on the taxable income upto Rs.2,50,001 to Rs.5,00,000/-. After deducting 10% towards income tax i.e. Rs.25,000/(2,50,000 x 10%) and further deducted Rs.47,635/(2,38,176 x 20%) in total Rs.72,635/- (25,000 + 47,635), the net annual income of the deceased will come to Rs.6,65,541/-(7,38,176- 72,635).

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Hon'ble Supreme Court in case of Sarla Verma (Smt.) (supra) has laid down the guidelines for applying the deduction and multiplier, wherein it has been held that where the claimants are three in number, there shall be

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deduction of 1/3rd towards personal and living expenses, which is applied by the learned Claims Tribunal in the facts of the case in hand. Learned Claims Tribunal looking to the age of deceased has applied multiplier of 13. In the considered opinion of this Court, learned Claims Tribunal has not committed any error in deducting 1/3rd from the income of deceased towards his personal and living expenses as well as rightly applied multiplier of 13 looking to the age of the deceased. I hereby affirm the said deduction and multiplier as applied by learned Claims Tribunal.

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Hon'ble Supreme Court in case of Pranay Sethi (supra) has specified the head on which compensation under other conventional heads is to be awarded, such as, loss of consortium, funeral expenses and loss of estate, further quantified the compensation for each head as Rs.40,000/-, Rs.15,000/- and Rs.15,000/- respectively. Types of 'consortium' has been subsequently explained by the Apex Court in Magma General Insurance Company Limited v. Nanu Ram Alias Chuhru Ram and Others reported in (2018) 18 SCC 130 , to be of three types; (i) spousal consortium (payable to the surviving spouse because of the death of the partner); (ii) parental consortium (payable to children because of the death of parents) and (iii) filial

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consortium (payable to the parents because of the death of children). Hence, appellant will be entitled for the compensation on other conventional heads as held by Hon'ble Supreme Court in aforementioned rulings.

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For the aforementioned reasons and discussions, the amount of compensation awarded by learned Claims Tribunal to the claimants requires re-consideration and recomputation, which is as under :

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Gross income of deceased is assessed as Rs.47,319/per month i.e. Rs.5,67,828/-. By adding 30% of income towards future prospects i.e. Rs.1,70,348/-, total annual income of deceased will come to Rs.7,38,176/- (5,67,828 + 1,70,348). After deduction of income tax i.e.72,635/-, annual income of the deceased comes to Rs.6,65,541/-. After deducting 1/3rd towards personal and living expenses of deceased i.e. Rs.2,21,847, annual loss of dependency of claimants will be Rs.4,43,694/- (6,65,541 – 2,21,847). After applying the multiplier of 13 to annual loss of dependency, total loss of dependency will come to Rs.57,68,022/(4,43,694 x 13).

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Apart from above amount of compensation, claimants are further entitled for a sum of Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and

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Rs.1,20,000/- (Rs.40,000/- each to all the three claimants) towards loss of consortium.

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Accordingly, the claimants will become entitled for

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compensation in the following manner :

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Sl. No.	Particulars	Awarded amount
1.	Monthlyincome of deceased	Rs.47,319/-
2.	Annual income of deceased	Rs.5,67,828/- (47,319 x 12)
3.	Futureprospects@30%	Rs.1,70,348/-
4.	Total annual income	Rs.7,38,176/- (5,67,828 + 1,70,348)
5.	Income tax deduction	Rs.72,635/-
6.	Income after deduction of income tax	Rs.6,65,541/- (7,38,176 – 72,635)
7.	Deduction towards personal and livingexpenses	Rs.2,21,847/- (6,65,541 / 3)
8.	Net income of deceased	Rs.4,43,694/- (6,65,541 – 2,21,847)
9.	Multiplier of 13 applied to assess total loss of dependency	Rs.57,68,022/- (4,43,694 x 13)
10.	Funeral expenses	Rs.15,000/-
11.	Loss of estate	Rs.15,000/-
12.	Loss of consortium to each [email protected],000/-	Rs.1,20,000/- (40,000 x 3)
	Total	Rs.59,18,022/-

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Thus, the total compensation is recomputed as Rs.59,18,022/-. After deducting Rs.46,35,576/- as awarded by the Claims Tribunal, the enhancement would be Rs.12,82,446/- (59,18,022 – 46,35,576).

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In the result, the appeal is allowed in part . The claimants shall be entitled to Rs.12,82,446/- in addition to what is

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already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. The other conditions imposed by learned Claims Tribunal shall remain intact.

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The Registry is directed to communicate the claimants in writing “the enhanced amount” in this appeal as against the award made by the Claims Tribunal below. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a coordination of Secretary, Legal Aid of the concerned area wherein the claimants reside.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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Yogesh

Smt. Pratibha Rai v. Mahendra Bante

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Smt. Pratibha Rai v. Mahendra Bante

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