"'!!>; ^. ;J-S^&h,\ *^ » K ai ^ frfc'' HIGH COURTOF CHHATTISGARH AT BILASPUR Misc. AppealNo. 16 of 2004 APPELLANTS Smt. Meena Netam and another Versus RESPONDENTS Vinial Kuruar and others. AWARD For consideration 0?-10-2011 Sd/- N.K.AgarwaI Judge Hon'ble Shri Justice Raieev Guota Sd/.~~~~~~"— c!'iefJustice Chiet u USLX^^ JiC} -10-2011 Post for pronouncement of Award: z-o -10-2011 Sd/- Judge \3 -10-2011 1 ~'s s .-.^/ ...•^•'' HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL No. 16 of 2004 APPELLANTS/ Claiinants 1. Smt. Meena Netam, W/o late Ashok Kumar Netam, aged 27 years. 2. Kritika D/o late Ashok Netam, aged 5 years Through Guardian mother Smt. Meena Netam. Both residents of Charampura No.2, Quarter No.G-49, Tah. Jagdalpur, Distt. Bastar (C.G.) RESPONDENTS Versus 1. Vimal Kumar, S/o Kamal Kum.ar, aged 42 years, R/o Shantinagar Ward, Jagdalpur, Owner-cum-Driver of Vehicle No. MP-25/AA 985, (Non- applicant No.l) 2. Oriental Insurance Company Ltd. Branch Jagdalpur, Distt. Bastar (C.G.) (INSURER) 3. Smt. Devkunwar W/o late Shiv Prasad Netam, aged 56 years, R/o village Arjuni, P.0. Karaida, Tah. Nagari, Distt. Dhamtari (CG) (applicant No.3) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT DB: Hon. Shri Rajeev Gupta, C.J. & Hon. Shri N.K. Agarwal, J PRESENT Shri Subhash Yadav, counsel for the appellants. Shri Alok Dewangan, counsel for respondent No. 1 Shri Shailendra Sharma, counsel for respondent No.2, AWARD (Passed on2.o -10-2011) Per N.K. Agarwal, J. Being aggrieved and dissatisGed with the amount of compensation awarded by the 1st Additional Motor Accidents Claims Tribunal, Bastar, place Jagdalpur (for short 'the Tribunal') in claim case No. 143/2002 vide award dated 24.4.2003, the instant appeal has been preferred by the appellants/claimants for enhancement. 2. As against compensation of Rs.14,85,000/- claimed by the claimants i.e. unfortunate widow and minor child of late Ashok Kumar Netam by filing claim. application 166 of the Motor Vehicles Act, 1988 (for short 'the Act') for his death in the motor accident on 05.03.2001, the Tribunal has awarded a total sum of Rs.3,08,700/- along with interest @ 9% per annum from the date of application till its actual payraent. 3. The Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to head on collision between Hero Puch bearing registration No. M.P. 25-AA/9851 being driven by respondent No.l and Hero Honda motorcycle bearing registration No.M.P.25-AA/0400 being driven by deceased - Ashok Kumar Netam; both drivers of the vehicles equally responsible for accident; respondent No.2 - The Oriental Insurance Company Limited liable for payment of compensation as Hero Puch was insured with respondent -..', '<. 'if^ No.2/the Oriental Insurance Company Limited on the date of accident and it could not establish violation of policy conditions; assessed compensation of Rs.5,98,400/- and after deducting 50% towards contributory negligence of deceased i.e. driver of Hero Honda motorcycle ahd after adding a sum of Rs.9,500/- on other permissible heads, awarded a total sum of Rs.3,08,700/- as compensation to the appellants/claimants along with interest at 9% per annum from the date of claim application till its actual payment. 4. Shri Subhash Yadav, learned counsel appearing for the appellants would subruit: the Tribunal has fallen in error in holding deceased i.e. driver of Hero Honda motorcycle bearing registration No. No.M.P.25-AA/0400 responsible for accident to the extent of 50% and in reducing the amount of compensation accordingly; in Hxing the monthly income of the deceased as Rs.4,400/- in place of Rs.6374/-; and in awarding low am.ount of compensation. 5. On the other hand, Shri Shailendra Sharma, leamed counsel appearing for respondent No.2 supported the award and submitted that in the facts and circumstances of the case, the Tribunal has rightly held deceased driver equaUy responsible for the accident; liberally assessed the income of the deceased as Rs.4,400/- per month and awardedjust and ..ail^_i^^ J proper amount of compensation which does not call for any interference. 6. We have heard leamed counsel for the parties and have perused the record of the Tribunal including the award impugned. 7. We shall first examine whether or not the finding of contribufory negligence recorded by the Tribunal is correct? Indisputably, the incident had occurred due to head on collision between Hero Puch being driven by respondent No.l and Hero Honda motorcycle being driven by deceased. The vehicle being driven by respondent No.l is a moped whereas the vehicle being driven by deceased is motorcycle heavier than the Hero Puch. It is trite law, heavier the vehicle greater the responsibility. As per evidence paragraph 3 of Sudhir Raghuvanshi (A.W.2), eye witness, the accident had occurred in the middle of the Road. The finding of contributoiy negligence, when examined in the context of above broad features of the case, in our opinion, the Tribunal was quite justiBed in holding both the drivers equally responsible for the accident. 8. Coming to the next question whether or not the amount of compensation awarded by the Tribunal is just and proper compensation, as per salary certificate (Ex.P.9) for the month of February, 2001, basic salaiy of deceased was Rs.4380/- -^^UiiU. "^ per month. Besides this, he was getting Rs.1796/- as dearness allowance, Rs.58/- as special allowance, Rs.40/- as house rent allowance and Rs.100/- as fixed travelling allowance, total amounting to Rs.6374/- as gross salary. Out of the above amount, there were deductions of Rs.1375/- towards provident fund, Rs.100/- towards GIS, Rs.40/- towards HRA and Rs.480/- towards professional tax for the year 2000-01 and after above deductions, the net salary of deceased was Rs.4379/- per month. The Tribunal, after taking into consideration the het salary of Rs.4379/- rounded of the same as Rs.4400/- per month. Thereafter, the Tribunal deducted 1/3 of it towards personal expenses of the deceased and after applying multiplier of 17, assessed Rs.5,98,400/- as compensation towards loss of dependency. After deducting 50% of it towards contributory negligence of deceased, awarded Rs.2,99,2000/- on account of loss of dependency. The Tribunal further awarded Rs.9,500/- on other heads and thus awarded total amount ofRs.,3,08,700/- as compensation payable to the claimants along with interest @ 9% from the date of application till its actual payment. 9. It is now settled law, the amounts of GPF, GIS, HRA, and Family Pension are not deductible from the salary of deceased for the purpose of computation of total salary of the deceased on the basis whereof, the amount of compensation payable for the death of bread earner of the claimants is required to be determined. Hon'ble Supreme Court in the case of National Insurance Co. Ltd. -v- Indira Shrivastava and others, (2008) 2 SCC 763 has observed in para 19 of its judgment as under: "19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as what 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." 10. In the light of above, in our opinion, the Tribunal has certainly fallen in error in assessing the amount of compensation payable to the claimants by taking into consideration net salary of the deceased as Rs.4,400/- per month. 11. Out of gross-salary of Rs.6374/-, it appears, the amount of special allowance of Rs.58/- per month and fbsed travelling allowance of rs.100/- is not regular part of salary and also the amount of professional tax is required to be deducted from the salaiy of deceased. Therefore, we propose to re-compute the amount of compensation by taking into consideration gross salary of deceased as Rs.6,000/- per month and Rs.72,000/- per annum. 12. After deducting one-third of Rs.72,000/- towards personal expenses of the deceased, the claimants dependency is assessed as Rs.48,000/- per annum. As per the post- mortem report (Ex.P.6), age of the deceased, at the time of accident was 35 years. Therefore, multiplier of 16 would be appropriate, in view of dictum of Apex Court in the case of Sarla Venna (Smt.) and others -v- Delhi Transport Corporation and another reported in (2009) 6 SCC 121, wherein multiplier of 16 has been prescribed for the age group between 31 to 35 years. By multiplying claimants' annual dependency wifh the multiplier of 16, the amount of compensation on account of loss of dependency would be Rs.7,68,000/-. The claimants are further entitled to Rs.15000/- (Rs.5000/- towards loss of consortium, Rs.5000/- towards loss of estate and Rs.5000/- and Rs.5000/- towards funeral expenses) and thus total compensation is worked out to Rs.7,83,000/-. After deducting 50% of its towards contributory negligence of deceased, Rs.3,91,500/- is awarded to the claimants. After reducing Rs.3,08,700/- awarded by the Tribunal, the claimants are now entiUed for Rs.82,800/-, over and above the amount of awarded by the Tribunal. The claimants are further entitled for Rs.8200/- towards quantified amount of interest upon-the enhanced amount of compensation. 13. For the reasons mentioned hereinabove, the appeal is allowed in part. The claunants are further awarded Rs.91,000/- (Rs.82,800/- towards enhanced amoimt of compensation + Rs.8,200/- towards quantified amount of interest upon the enhanced amount of compensation of Rs.82,800/-), over and above the amount of compensation awarded by the Tribunal. The award is modified to the above extent. Rest of the conditions of the award shall remain intact. 14. The respondent No.2/ Oriental Insurance Company Limited is granted three months time for depositing the total enhanced amount of compensation of Rs.91,000/- before the concerned Claims Tribunal. 15. No order as to costs. SdA Chief Justice Sd/- N.K. Agarwal Judge