:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2261 OF 2008 WITH CIVIL APPLICATION NO. 3805 OF 2008 The Oriental Insurance Company Limited ..Appellant Vs. Gulab Sakharam Choudhary & ors. ..Respondents Mr. Yaan Bhargavan i/by Mr. R. Bhargavan for appellant. Mr. T.J. Mendon for respondents. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. Date : February 03, 2009. Date : February 03, 2009. Date : February 03, 2009. P.C.: P.C.: P.C.: 1. Heard the learned counsel for the parties. As noted in our order dated 6/1/2009, this appeal has been heard for its final disposal on perusal of the R & P received by the Registry in MAC No. 1117 of 1996 from the Claims Tribunal at Thane. We have also noted from the R & P that the application filed by the appellant-Insurance Company under Section 170 of the :2: Motor Vehicles Act, 1988 was allowed by the Tribunal and it was allowed to contest the claim on all grounds. 2. The subject accident had taken place on 22/7/1996. The deceased by name Sakharam was a pedestrian on the old Mumbai - Pune Road near Bhiwandi at about 6 a.m. when an Ambassador Car in White/Gray colour recklessly gave a dash to him causing him serious injuries and fled away. The injured was immediately removed to the hospital but during the treatment he died on 24/7/1996 owing to the injuries that he had sustained. The deceased was the only bread earner of the family. The car was not identified initially and, therefore, the complaint registered was without the registration number of the car. Two witnesses who were examined by the applicants in support of their claim assessed the Tribunal to determine the identity of the vehicle and they were Ashok Ramdas Patil (PW 1), who was an eye witness to the incident and Arvind G. Ghadge (PW 2), the Investigation Officer. The IO from the Bhiwandi Taluka Police Station had spent more than a month in :3: locating the car involved in the accident and had written to almost all the RTO offices through out the State of Maharashtra. Mr. Ashok Patil had in his statement stated that it was a gray colour car but ultimately when the IO located the car it turned out to have the white colour with Registration No.MH/15-A-1291. It was owned by Dena Bank at Nashik. The eye witness identified the car and, therefore, the first contention of the Insurance Comapny regarding the identity of the car was discarded by the Tribunal and in our opinion rightly so. 3. On the issue of the employment of the deceased and his salary, the Tribunal considered the evidence of Surendra Darde, an amployee of the Bombay Municipal Corporation. Though the witness did not disclose his post in the employment of BMC, he stated that the deceased was employed with BMC as a driver and his monthly salary in the month of July 1996 was Rs.13,106/-. The determination of salary was another issue before the Tribunal. The claimants stated that the deceased was of 35 years of age but there was no certificate in support of this statement. The :4: Tribunal, therefore, relied upon the post mortem report at Exh.31 in indicating that the deceased would be within the age group of 35 to 40 years. Based on this, the Tribunal fixed the multiplier at 16 which has not been disputed or challenged by the Insurance Company. The Insurance Company’s challenge is on the issue of computing the monthly/annual income. We have seen the R & P and there are two salary certificates on record. The first one at Exh.33 whereas the second one along with the list of documents at Exh.39. The learned counsel for the appellant submitted that the monthly income shown for July, 1996 at Rs.13,106/- consisted of overtime allowance of about Rs.7000/- and it did not assist the Tribunal to determine the monthly income of the deceased correctly. We have noted that the Tribunal has not placed its reliance on the income certificate along with the list at Exh.39 and on the contrary the Tribunal has considered the salary certificate at Exh.33. 4. We have gone through the same and it is for the month of June 1996 and overtime shown therein is Rs.3963/-. The learned counsel for the appellant :5: submitted that the overtime earnings are required to be deducted for calculating the annual or monthly income. We do not agree with these submissions. Overtime is either the condition of service or is required to be paid in keeping with the provisions of either the Factories Act, 1948 or the Bombay Shops and Establishment Act. It appears that overtime earnings were a regular feature of the salary paid to the deceased by his employer and, as pointed out, in the month of July 1996 the said earning was to the tune of Rs.7000/-. In the month of June 1996, the monthly income of the deceased is shown at Rs.9588/- and in the deduction column there is no deduction towards the income tax. Mr.Mendon the learned counsel for the claimants placed reliance on the decision in the case of National Insurance Company Ltd. vs. Indira Srivastava and ors. [2008(1) T.A.C. 424 (SC)] wherein the Supreme Court held that from the amount of income, the statutory amount of tax payable thereupon must be deducted and at the same time the benefits like perks etc. payable by the employer should be included for computation of his monthly income as that would have been added to his monthly income by way of :6: contribution to the family as contradistinguished to the ones which were for his benefit. We, therefore, do not find any error or perversity in the impugned award and, therefore, even on the count of computation of salary, the same is required to be confirmed. We have noted that 1/3rd deduction has been provided in the impugned award and the dependency has been calculated only to the extent of 2/3rd of the annual income. The award does not call for any reconsiderations by us. 5. Hence, this appeal must fail at the threshold and the same is hereby dismissed in limine. No costs. R & P be returned. 6. Civil Application No. 3805 of 2008 does not survive and disposed as such. 7. We make it clear that the dismissal of the appeal will not come in the way of the appellant for taking appropriate steps for recovery of the compensation amount either fully or partly from the owner of the vehicle, as may be permissible in law. :7: (D.G. Karnik,J.) (D.G. Karnik,J.) (D.G. Karnik,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)