^^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.rCVNo.1141 of 2007 APPELLANTS RESPONDENTS Smt. Ahilya Mandavi & others VERSUS Bijit Kundu & another Award for consideration Hon'ble Shri Raieev Guota. CJ. J 'e-^—^ Sd/- Chief Justice Sd/- Judge I./09/2011 \->: Post for pronouncement on 2. /09/2011 Sd/- N.K. Agarwal Judge 2-| U9/2011 ^- ^^ HIGH COURT OF CHHATTISGARHAT ilLASPUR M.A.(C)No.1141 of 2007 Appellants Clalmants Respondents 1. Smt. Ahi'ya Mandavi VVidow of Narslngh Mandavi aged about 42 years. 2. Pradeep Kumar Mandavi S/o Narnsingh Mandavi aged about 20 years. 3. Ku. Lalita Mandavi D/o Narsingh Mandavj aged about 17 years. 4. Mukesh Kumar Mandavi S/o Narsingh Mandavi aged about 15 years. 5. Ku. Sushma Mandavi D/o Narsingh Mandavi aged about 13 years. (3 to 5 are minors through legal guardian mother Smt. Ahilya Mandavi). All Resident of Vi!!age Chirmarra, Tahsli Bhanupratappur, Dlstrict Uttar Bastar Kanker. VERSUS 1 Bijit Kundu S/o BK Kundu aged about 42 years R/o Purana Bazar Pakhanjur Tahsl! Pakhanjur, Dlstrict Uttar Bastar Kanker (CG). (Driver & owner) 2. The Nevi/ India Insurance Company Ltd., Divisioanl Offlce, BR-11 RDA Bullding Bajrang Market, GE Road, Raipur (CG). (insurance Company) (APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT) (DB: Hon'bie Mr. Raleev Gupta. CJ & Hon'ble Mr. N.K. Aaar^va!. J.) Present : Shri Vishnu Kosta, Advocate for appellants Shri Raj Awasthy, Advocate for respondent No. 2. AWARD (Deljveredon^/09/2011) Per : N.K. Aaarwal, J. ».^ 1. This is claimants' appeal seeking enhancement of compensation awarded by the Additional Motor Accident Claims Tribuna!, ^ /LA. ^. Bhanupratappur, District Kanker (for short 'the Tribuna!') in daim case No. 30/07 vide award dated 29.06.2007. As against compensation of Rs. 33,77,620/- claimed by unfortunate widow and chiidren of deceased Narsingh Mandavi by filing application under Section 1 66 of the Motor Vehicles Act, 1988 (for short 'MV Act') for the death of deceased in the motor accident on 28.02.2004, the Tribunal awarded a tota! sum of Rs. 9,58,496/- along with interest @ 6 percent per annum from the date of apptication till its actual payment. The Tribunal, on a ciose scrutiny of the evidence !ed, held : the accident had occurred due to rash and negtigent drivlng of driver of offending vehicle Marshai Jeep bearing registration No. CG-17-D- 0052 who dashed the motorcycie bearing registration No. CG-06- 8816; Narsingh Mandavi died on account of injuries sustained in the said accident; insurance company liable for payment of compensation as respondent/insurance company could not estabiish breach of policy conditions; assessed and awarded aforementioned amount of compensation to the claimants aiong with interest @ 6 percent per annum from the date of accident tili its actual payment holding respondents jointly and severally liabie for its payment. Shri Vishnu Kosta, learned counsel for the appetiants wouid submit the Tribunal has fa!!en in error in caiculating the amount of compensation by taking into consideration carry home sa!ary of deceased Narsingh Mandavi as Rs. 9024/- per month, and in awarding low amount of compensation. ^^ li,. 8. On the other hand. Shri Raj Awasthy, learned counsel appearing for respondent No. 2/The New India !nsurance Company Limited, supported the award Impugned and submitted, in the facts and circumstances of the case, compensation awarded by the Tribuna! is just and proper compensation and does not call for any interference. We have heard the learned counse! appearing for the partles, perused the award impugned and records ofthe Tribunal. The Tribunaj assessed gross salary of the deceased Narsingh Mandavi as Rs. 11,024/-; after deducting recovery of Rs. 2000/- from the saiary of deceased towards repayment of loan taken by him; assessed carry home salary as Rs. 9024/ per month i.e. Rs. 1,08,288/- per annum; deductlng 1/3rd of it towards persona! expenses of the deceased; assessed clalmants yearly dependency as Rs. 72,192/-; looking to the age of deceased as 47 years at the time of accident selected multip!ier of 13. After muitjpiying clarmants annual dependency of Rs. 72,192/- by the multipiier of 13, the amount of compensation was worked out to Rs. 9,38,496/-: The Tribunal further awarded Rs. 20,0007- on other heads and thus awarded a total sum of Rs. 9,58,496/- as compensation to the claimants. The Tribunal also directed payment of interest @ 6 percent per annum from the date of appiication till jts actua! payment. The law is weli settled, the amount of GPF, GIS, HRA, family pension and recovery of loan are not deductible from the salary of the deceased for the purpose of computation of payable amount of I/ .<' / K ^ ^ ::;..% j .ff ^ .^/ %^ pN^ ,// the deceased on the basis whereof, the amount of compensatlon payable for the death of bread earner of the appeftants/claimants is required to be determined. 9. The Supreme Court in case of NationaE Insurance Co. Ltd. v. indira Srivastava and others, reported in 2008 (2) SCC-763 has held in para 15& 19 of its judgment as under : "15. Similar viewwas expressed by a learned Singie Judge of the Andhra Pradesh High Court in S. Narayanamma v. Secy. to Govt. of India, Ministry of Teiecommunications holding: (APU pp. 478-79, para 13) u13. In this background, now we wil! examine the present deductions made by the Tribuna! from the salary of the deceased in fixing the monthfy contribution of the deceased to his famjjy. The Tribunal has not even taken proper care whi!e deducting the amounts from the salary of the deceased, at ieast the very nature of deductions from the salary of the deceased. My vlew is that the deductions made by the Tribunal from the salary such as recovery of housing loan, vehicie loan, festival advance and other deductions, if any, to the benefit of the estate of the deceased cannot be deducted while computing the net monthly eamings of the deceased. These advances or loans are part of his saiary. So far as house rent allowance Is concerned, it is beneficial to the entire family of the deceased during his tenure, but for his untimefy death the claimants are deprived of such beneflt which they would have enjoyed if the deceased were ^7 10. alive. On the other hand, aliowances, llke travelling allowance, allowance for newspapers/periodicals, telephone, servant, club fee, car maintenance, etc., by virtue of his vocation need not be included in the salary while computing the net earnings of the deceased. The finding of the Tribuna! that the deceased was getting Rs 1 401 as net income every month is unsustainable as the deductions made towards vehicle !oan and other deductlons were also taken into consideration while fixing the monthly income of the deceased. The above finding of the Tribunal is contrary to the principle of 'just compensation' enunciated by the Supreme Court in the judgment in Heien case. The Supreme Court in Concord of India Insurance Co. Ltd. v. Nirmaia Devi held that determination of quantum must be ijberal and not niggardly since law vaiues life and timb in a free country 'in generous scales'." 19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, shoujd be included 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 pnes which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount oftax payable thereupon must be deducted." By applying the dictum of Supreme Court in the above referred case, we have no doubt in our mind that the Tribunal has fal!en in error in assessing the monthly income of the deceased at Rs. 9024/- i.e. Rs. 1,08,288/- per annum for the purpose of 2^ computation of compensation. Therefore, we propose to re- compute the amount of compensation. 11. We have perused the income tax return (Ex. P/9) and computation oftotal income sheet (Ex. P/10) ofthe deceased. As per Ex. P/9 & P/10, the gross salary of the deceased Narsingh Mandavi was Rs. 1, 47,762/- and income tax & profession tax payable v'/as Rs. 6119/- and 1560/- respectively. 12. As per settled position of law, the amount of tax Is deductible from the gross salary of the deceased for the purpose of computation of compensation. Afterdeducting Rs. 7679/- (6119+1560) i.e. amount of tax from the gross yearly salary of the deceased, yearly income of the deceased for the purpose of computation of compensatlon would be Rs. 1,40,083/-. 13. After deducting usual 1/3rd of Rs. 1,40,083/- tov/ards personal expenses ofthe deceased, clalmants yearly dependency works out , to Rs. 93,389/-. By multiplying the above amount of claimants annual dependency by multiplier of 13 as apptied by the Tribunal, the appeliants/claimants woufd become entitled for Rs. 12,14,057/- as compensation. The claimants/appeliants are further entltled for Rs. 15,000/- on other heads (Rs. 5000/- each on account of funeral expenses, loss of consortium and toss of estate), and thus the claimants are entitled for tota! sum of Rs. 12,29,057/- as compensation instead of Rs. 9,58,496/- as awarded by the -Tribunal. 14. For the foregoing reasons, the appea! fited by the appeifents for enhancement of the compensation is aiiowed in part. The ^^ compensation of Rs. 9,58,496/- awarded by the Tribunal is enhanced to Rs. 12,29,057/-. The enhanced amount of compensation of Rs. 2,70,561/- shat! carry interest @ 6 percent per annum from the date of appiication till its actual payment. Rest of the conditions mentioned in the award sha!! remain Intact. The award stands modifled to the above extent. 15. The insurance company is granted three months' t'me to deposit enhanced amount of compensation of Rs. 2,70,561/- aiong with interest before the concerned ciaims Tribunai. No order as to costs. Sd/- diiefJustice Sd/- N.K.Agarwa! Judge Sahu