il: 1 APPELLANT DtefendantNo.3 -Versus RESPONDENT . : ^ 1. Qaitiianl: No.l RESPONDENT aaimantNo.2 ESPONDENT Ciatmfltit No.3 ^\-;n-o?" ^y^' ^^ ^PONDENT Defendant No.1 RESPONDENT Etefendant NoS. IN THE HIGH COUOT OF CHHATTBGARH AT BILASPUR wsc. Apped No. _il3^./2oo3 BIvision Bench National Insuiance Company UA, IXvision,al Qffice MQD'IUI Malial, G.E Road, Raipur, Through Branch Manager, &nfc Shaista Niyaji, 32 5'earB, VVd/o Late Eaeed Atimed Ktiati Nijuji. Ku. Saima Niyqi, 14 years, D/o Late Saeed Alursed KhanNiyaji. AsitnAhtnsd Niyaii, 10 years, S/o Late &.eed AlTrned Klian Niya^i. No.2 and 3 are rranor, through tlieir Natural guardian- Mother Smt. SSiaista Niyaji. AU R/oTatyffparaWaTd, House No. 30/680, P.S. Azad Chowk, Raipur, Tehsil & District- Eaipur (CG.). Nasimuddin, 22 years, S/o Saeed Mohd., Oocupaticin JeepDriver, R/o Khursipar, PA Chutvm, BMai, Tehsfl and EXstrict- -Mver- Abdiil Sattar, 40 years, S/o Jabbar Ati, Owner of rhe Jeep, R/'o Near Street No. 9, Sectot-11, Quartet- No. 3/A, Zotie No3, Khureipar, BIulai, Tehsil and CSstrict Durg(C.G). -Owner- 1 <-/" tK “g HIGH COURT OF CHHATTISGARH : BILASPUR M. A. No. 814 of 2003 Appellants Smt. Shaista Niyaji 85 others Versus Respondents Nasimuddin 85 others AND M. A. No. 879 of 2003 Appellant National Insurance Company Ltd. Versus Respondents Smt. Shaista Niyaji 86 others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 ‘ DB: Hon’ble Shri I. M. Quddusi & Hon’ble Shri Justice N. K. Agarwal, JJ Shri Arjun Singrol, Advocate for the appellants/Claimants. Shri BI N. Nande, Advocate for the appellant/Insurance Company. Shri Rahul Jha, Advocate for the respondent Nasimuddin. ORDER (Oral) ( Passed on this 27th day of October, 2010 ) Per I. M. Quddusi, J. . Heard. 1. Both these appeals ( M.A.No. 814 and 879 of 2003) arise from the impugned award dated 30m June, 2003, passed by the Fourth Additional Motor Accident Claims Tribunal, Raipur, in Claim Case No. 107/2002. The claimants have filed the appeal for enhancement and the Insurance Company has filed the ‘appeal challenging the liability. 2. The, brief facts, in nutshell, are that on 8.3.2002 deceased Saeed . Ahmed Khan Niyaji, as a usual routine, was goingbn his duty to the State Bank Branch at Kumhari from his house at Tatyapara, Raipur by his motorcycle, bearing registration No. M.P. 23 M.A. 2938. When he reached near Chandandih, aaJeep, bearing registration No. M.P. 23—G/1771, being driven in a rash and negligent manner by the non—applicant No.1, owned by the non—applicant No.2 and insured with -the non-applicant No.3, hit o 3‘x ' @ the motOrcycle from the front side. As a result of the accident the deceased received grievous injuries; he was taken to the hospital, Where he succumbed to the injuries. The offence was registered by the Police Station Amanaka at Crime No. 49/2002 for the offence under Sections 279, 337, 338 and 304—A of the Indian Penal Code. We have heard learned counsel appearing for the parties and perused the lower Court records. We have seen the pay slip of the deceased issued by the State Bank of India, Kumhari Branch, as the deceased was an employee of the S.B.I. In the pay slip the gross income of the deceased has been shown as Rs. 13922/— on 15.3.2002. The deductions regarding personal loan, G.P.F., festival advance and vehicle advance has been shown as Rs. 5420/— and the net income has been shown as Rs. 8502/—. But to our opinion it was not a correct assessment of the income of the deceased as the loan and advances taken by him and deductions made thereof were not to be reduced from the income of the deceased. Further, in the case of National Insurance Co. Ltd. Vs. Indira Shrivastava and others (2008) 2 SCC 763 it has been held by the Hon’ble Apex i Court that the amounts which were required to be paid by the employer by way of perks, should be included for computation of his monthly income as that should have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. However, statutory amount of tax payable thereupon must be deducted. 5. Therefore, an enquiry should have been conducted by the Tribunal to ascertain as to what was the amount being deducted as tax payable by the deceased towards income tax and professional tax and thereafter only the income should have been assessed but that has not been. done. 6. Further, the Insurance Company has also raised grievance in the appeal filed by it that as the jeep which collided with the motorcycle, which was being driven by the deceased, was being used as Taxi, at the time of accident and therefore the Insurance Company is not liable to 'pay the compensation as there was breach .of the conditions. of the Insurance Policy. Since the Tribunal has not considered the above contention raised by the Insurance Company, we refrain ourselves from going into the findings in this regard. In View of the foregoing, we think it proper that the matter should be reconsidered by the Tribunal and give its findings afresh in the light of the observations made hereinabove. Therefore, we allow both the appeals in part and set aside the impugned award dated 30.6.2003 and remit the matter to the Tribunal for decision afresh in the light’of the observations made in the body of this order. The Tribunal shall provide opportunity to the parties to adduce further evidence again in support of their pleadings and may file further documents. Thereafter, the decision shall be made by the Tribunal, as early as possible, preferably within a period of six months from the date of receipt of the lower Court record. Accordingly, both the appeals are allowed in part to the above extent. No order as to costs. The Registry is directed to send back the papers, requisitioned from the Tribunali forthwith. ,,.,., ‘esaiW‘ Sci!- - N. K. Agaiwal Judge I;M.Qudd“5‘ Sdl- Mr l .we‘ ". Judge 1% l \