* H O N ' B L E S R I J U S T I + M.A.C.M.A. No.4424 of 2008 % 3 0 - 0 4 - 2 0 1 0 # T h e N e w I n d i a A s s u r a n C o m p a n y L i m i t e d , r e p . R e g i i o n a l M a n a g e r , S e . . A p p e V s . $1. Smt. S. Yashoda and 6 others .. Respondents < G I S T : > H E A D N O T E : ! C o u n s e l f o r a p p e l l a n Smt. I. Mammu Vani ^ C o u n s e l f o r r e s p o n d e ? C A S E S R E F E R R E D : - 1. (2008) 2 Supreme Court Cases 763 2. (2004) 1 ACJ 448 3. 2007 AIHC 1921 4. (2002) 1 APLJ 473 5. (2005) 6 SCC 236 6. (2007) 3 SCC 538 7. (2005) 10 SCC 720 HON’BLE SRI JUSTICE P.S.NARAYANA M.A.C.M.A. No.4424 of 2008 Date: April 30, 2010 Between: The New India Assurance Company Limited, Rep. by its Regional manager, Secunderabad. … Appellant/ Respondent No.2 And 1. Smt. S. Yashoda and 6 others. … Respondents/ Petitioners * * * HON’BLE SRI JUSTICE P.S.NARAYANA M.A.C.M.A. No.4424 of 2008 JUDGMENT: The New India Assurance Company Limited, represented by its Regional Manager, Secunderabad, being aggrieved of the compensation awarded in O.P.No.2471 of 2003 on the file of XXII Additional Chief Judge-cum-Motor Accidents Claims Tribunal, City Criminal Court, Hyderabad (hereinafter in short referred to as “Tribunal” for the purpose of convenience) had preferred the present M.A.C.M.A. 2. Respondents 1 to 6 in the present M.A.C.M.A. as claimants filed the O.P. aforesaid under Section 166 of the Motor Vehicles Act (hereinafter in short referred as “Act” for the purpose of convenience) praying for awarding of compensation of Rs.12.00 lakhs together with interest and costs. 3. The Tribunal, in the light of the respective stands taken by the parties, having settled the issues, recorded the evidence of P.Ws.1 to 3 and also marked Exs.A-1 to A-6 and Ex.B-1 and ultimately came to the conclusion that the claimants are entitled to compensation of Rs.7,50,000/- together with interest at 7.5% per annum on the said compensation amount from the date of filing of the petition till the date of deposit. Aggrieved by the same, the present M.A.C.M.A. had been filed. 4. Smt. I. Mammu Vani, learned counsel representing appellant- respondent No.2 had taken this court through the contents of Ex.A-6 and would maintain that the Tribunal totally erred in taking gross salary of the deceased into consideration instead of taking net salary of Rs.4,878/-. The learned counsel also would point out that the Tribunal also had not recorded appropriate findings in relation to the loss of consortium, loss of estate and funeral expenses. The counsel also would maintain that the Tribunal ought to have seen that the deceased while crossing the road did not observe both sides of the road and in a way contributed to the accident. The learned counsel while elaborating her submissions had taken this court through the findings which had been recorded by the Tribunal and ultimately would conclude that the said award to be accordingly at least modified. The learned counsel placed strong reliance on certain decisions to substantiate her submissions. 5. Per contra, Sri J. Kanakaiah, learned counsel representing respondents 1 to 6 would maintain that the Tribunal recorded reasons in detail and ultimately came to the correct conclusion. The learned counsel also would maintain that while computing the salary only certain deductions are to be made and the learned Tribunal made such deductions and arrived at a correct conclusion. Since the findings had been recorded on appreciation of oral and documentary evidence available on record in proper perspective, this is not a fit matter to be interfered with. The learned counsel also relied on certain decisions to substantiate his submissions. 6. Heard the counsel on record, perused the oral and documentary evidence available on record and also the findings recorded by the Tribunal. 7. In the light of the submissions made by the counsel on record, the following points arise for consideration in this M.A.C.M.A. (1) Whether the findings recorded by the Tribunal in relation to the income or the salary to be confirmed or to be disturbed in the facts and circumstances of the case? (2) If so, to what relief the parties would be entitled? 8. Point No.1: The claimants filed O.P. No.2471 of 2003 aforesaid under Section 166 of the Act, since the deceased S. Venkata Swamy died in a motor vehicle accident which had taken place on 25.7.2003. It is the case of the claimants that on 25.7.2003 about 8-45 p.m. while S. Venkata Swamy was crossing National High Way No.9, a lorry bearing No. ABG 6399 coming from Hyderabad proceeding towards Patancheru came in high speed in a rash and negligent manner and dashed S. Venkata Swamy. As a result, Venkata Swamy sustained multiple injuries and died on the way to Gandhi Hospital. 9. Police Ramachandrapuram of Medak District registered a case in crime No.170 of 2003 under Section 304-A of IPC against the driver of lorry bearing No. ABG 6399. The deceased was working as Section Supervisor in the office of Assistant Provident Fund Commissioner, Sub-Accounts Office, Patancheru, Medak District and drawing monthly salary of Rs.11,796/- per month. The petitioners are dependents on the deceased. 10. Respondent No.1 is the owner and respondent No.2 is the insurer of the said lorry involved in the accident. Therefore, both the respondents are liable to pay compensation to the petitioners who are legal heirs of the deceased. 11. The second respondent herein K. Dhanalakshmi, the owner of the vehicle, had not chosen to contest the matter. The present appellant-respondent No.2 filed counter opposing the O.P. on the ground that O.P. is not maintainable and the claimants were put to strict proof of the allegations which they made in the O.P. Respondent No.2 i.e., present appellant did not admit the narration and the manner of the alleged accident and the claimants were put to strict proof of the same. Further, it was averred that the deceased had not taken minimum care while crossing National High Way No.9. It is the duty of the deceased to observe while crossing the road. Due to negligence of the deceased the accident occurred as such there was no negligence on the part of the driver of the lorry and, hence, the appellant-respondent No.2 is not liable to pay any compensation whatsoever. No doubt, certain further averments also had been made relating to the validity of the driving license. 12. In the light of the respective pleadings of the parties, the following issues were settled. (1) Whether the accident in question took place on 25.7.2003 on account of the rash and negligent driving of lorry bearing No. ABG 6399 by its driver? (2) Whether the petitioners are entitled for compensation? If so, what amount and from whom? (3) To what relief? 13. Before the Tribunal, P.Ws.1 to 3 were examined and Ex.A-1 certified copy of FIR, Ex.A-2 scene of offence panchanama, Ex.A-3 PME report, Ex.A-4 certified copy of charge sheet, Ex.A-5 death certificate and Ex.A-6 salary certificate had been marked. Ex.B-1 insurance policy also had been marked with consent, since no oral evidence was let in by the contesting respondent in the said O.P. 14. Ex.A-6 specifies as hereunder: “This is to certify that late Venkataswamy, Section Supervisor, was an employee of Employees’ Provident Fund Organization with effect from 09.02.1977. The official met with an accident and expired on 25.7.2003 while he was working as Section Supervisor at this office. The pay and allowances, last drawn by the official per month is furnished as under: DEDUCTIONS (1) Basic pay - Rs. 6650/- (1) Prof. tax Rs. 100/- (2) D.A. - 3658/- (2) GIS 30/- (3) HRA - 998/- (3) SPF 2000/- (4) CCA - 240/- (4) SPF Adv. 936/- (2/36) (5) FMA - 150/- (5) HRA 650/- (6) T.A. - 100/- (6) Con. Adv. 343/- (20/70) (7) Fes. Adv. - 150/- (4/10) (8) Coop. loan 2704/- (9) Recreation 5/- ---------- 6918/- Net pay Rs.4878/-“ 15. P.W.1 is not eye-witness to the incident. P.W.3 is an eye- witness to the incident. This witness deposed about what had happened on the fateful day. This witness specifically deposed that the said accident occurred due to rash and negligent driving of lorry by its driver. The occurrence of accident as stated by P.W.2 is not in serious dispute or controversy. In fact, P.W.2 was suggested that the accident had taken place due to negligence of the deceased, but this suggestion was denied by P.W.2. P.W.2 gave complaint to Police Ramachandrapuram relating to this accident and on the strength of the same, the Police Ramachandrapuram registered crime No.170 of 2003 initially under Section 337 IPC which was later altered to Section 304 (A) IPC. 16. The contents of salary certificate already had been referred to above. Appellant-respondent No.2 in the O.P. aforesaid had taken the stand that the deceased was responsible for the accident, since he did not observe the traffic on the road while crossing the road. But however, no evidence was placed in this regard and the mere suggestions put to the witnesses may not, in any way, improve the case of the appellant-second respondent. In the light of the clear evidence available on record, the Tribunal, after recording reasons, came to the conclusion that the accident had taken place due to rash and negligent driving of lorry bearing No. ABG 6399 by its driver resulting the death of the deceased Venkata Swamy. 17. The claimants are the legal heirs and dependents of the said Venkata Swamy. Respondent No.1 in the O.P. is the owner of the lorry involved in the accident. It is needless to say that respondent No.1 is also liable to pay compensation to the claimants. Ex.B-1 is the policy issued by respondent No.2. The accident had taken place during the period of insurance covered by Ex.B-1 policy. Hence, it is needless to say that the appellant-respondent No.2 is liable to pay compensation to the claimants. No evidence had been placed on behalf of the appellant-respondent No.2 to establish that the owner of the vehicle had violated the terms and conditions of the policy and further no material had been placed to show that the diver of the lorry had no valid driving licence. 18. The Tribunal while answering on the age of the deceased at para 30 observed that the claimants alleged that the deceased was aged about 54 years at the time of accident. As seen from Ex.A-3 PME report deceased was aged about 54 years at the time of accident. The evidence of P.W.1 also is to the said effect. 19. P.W.3 deposed that the deceased was born on 12.7.1948 as per the entries in Service Register. Thus, in the light of the evidence available on record finding had been recorded that the deceased was aged about 54 years at the time of his death. In the light of the convincing findings recorded in this regard, this Court is of the considered opinion that the said findings of the Tribunal need no disturbance at the hands of this Court. 20. On the aspect of income of the deceased elaborate submissions had been made by both Smt. I. Mammu Vani, representing the appellant and Sri J. Kanakaiah representing contesting respondents- claimants in the light of the contents of Ex.A-6. P.W.1 deposed that her husband was working as Section Supervisor in Sub-Accounts Office, Employees’ Provident Fund Organization, Patancheru, Hyderabad and was drawing monthly salary of Rs.11,796/-. Ex.A-6 is the salary certificate. The contents of Ex.A-6 being self-explanatory, the same need not be repeated in elaboration. 21. As can be seen from Ex.A-6 the basic pay, D.A, HRA, CCA, FMA and T.A inclusive ultimately the salary is shown as Rs.11,796/-. But however, the deductions were shown as Rs.6,918/- and the net pay was shown as Rs.4,878/-. P.W.3, the U.D.C in Employees Provident Fund Organization deposed that the deceased was working in their office as Section Supervisor and his salary was Rs.11,796/- per month. Ex.A-6 was issued by their office. In cross-examination P.W.3 deposed that the net salary of the deceased was Rs.4,878/- per month after deductions as per Ex.A-6. The salary certificate of the deceased would give an indication that the basic pay of the deceased was Rs.6,650/- and D.A. was Rs.3,658/-. His gross salary was Rs.11,796/- per month. There were deductions to a tune of Rs.6,918/- per month and thus the net salary of the deceased was Rs.4,878/- per month. The Tribunal recorded reasons in detail in this regard. Since the deceased was aged 54 years, the appropriate multiplier of 10 had been applied. The Tribunal, in fact, observed at para 35 as hereunder. “For the purpose of calculating the salary of deceased, his basic pay and D.A. has to be computed only statutory deductions like I.T. and professional tax alone are liable to be deducted from the salary of deceased. All other deductions shown in Ex.A-6 need not be deducted from the salary of deceased. The salary of the deceased per month thus was Rs.6,650/- (Basic Pay) and D.A. of Rs.3658/- totaling to Rs.10,308/-. Out of said salary, a sum of Rs.1300/- is deducted towards I.T. and professional tax per month. The net salary of deceased is therefore estimated at Rs.9,000/- per month. In other words, the annual income is estimated at Rs.1,08,000/-. Out of said amount, 1/3rd is liable to be deducted for the personal expenses of the deceased. 1/3rd comes to Rs.36,000/-.His contribution to the family therefore comes to Rs.72,000/-“ 22. The Tribunal, however, further awarded a sum of Rs.27,000/- i.e., Rs.2,000/- towards funeral expenses, Rs.15,000/- towards loss of consortium and Rs.10,000/- towards loss of estate. Thus, ultimately the Tribunal came to the conclusion that compensation amount of Rs.7,47,000/- to be awarded, but however, while rounding the same Rs.7,50,000/- had been awarded to be the just and reasonable compensation no doubt with interest at 7.5% per annum. The Tribunal, in fact, had computed the income after making statutory deductions as can be seen from the findings recorded by the Tribunal. 23. The Apex Court in National Insurance Co. Ltd. V. Indira Srivastava and others[1] while dealing with connotation of the term “income” for the purpose of determination “just compensation” as envisaged under Section 168 of the Act observed at paras 9 and 10 as hereunder. “The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. Section 168 of the Act uses the word 'just compensation' which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident Fund, Gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. For the aforementioned purpose, we may notice the elements of pay, paid to the deceased: BASIC 63,400. 00 CONVEYANCE ALLOWANCE 12,000. 00 RENT CO LEASE 49,200. 00 BONUS (35 per cent OF BASIC) 21,840. 00 ---------------- TOTAL 1,45,440. 00 In addition to above, his other entitlements were : Con. to PF 10 per cent Basic Rs. 6,240/- (p. a.) LTA reimbursement Rs. 7,000/- (p. a.) Medical reimbursement Rs. 6,000/- (p. a.) Superannuation 15% of Basic Rs. 9,360/- (p. a.) Gratuity Cont. 5. 34% of Basic Rs. 3,332/- (p. a.) Medical Policy-self & Family Rs. 55,000/- (p. a.) Education Scholarship at the rate of Rs. 500 Payable to his two children directly. Rs. 12,000/- (p. a.)” 24. The Apex Court, in fact, had referred to the under noted decisions: 1. (2007) 3 SCC 538 : (2007) 2 SCC (Cri) 94, New India Assurance Co. Ltd. V. Kalpana. 2. 2007 AIHC 1921, National Insurance Co. Ltd. V. Padmavathy. 3. (2005) 10 SCC 720 : 2005 SCC (Cri) 1657, New India Assurance Co. Ltd. V. Charlie. 4. (2005) 6 SCC 236 : 2005 SCC (Cri) 1436, T.N. State Transport Corpn. Ltd. V. S. Rajapriya. 5. (2004) 1 ACJ 448 : (2004) 1 ACC 533 : (2008) 2 SCC 774 : (2008) 1 SCC (Cri) 561, Asha v. United India Insurance Co. Ltd. 6. 2002 ACC 582 : (2002)1 APLJ 473, S. Narayanamma v. Secy. to Govt. of India, Ministry of Telecommunications. 7. (2001) 3 SCC 714 : 2001 SCC (Cri) 1311, Rathi Menon v. Union of India. (8) (1999) 1 TAC 847 (MP), Lalita Devi v. Suresh. (9) (1999) 1 SCC 90 : 1999 SCC (Cri) 197, Helen C. Rebello v. Maharashtra SRTC. (10) (1985) 1 SCC 18 : 1986 SCC (Cri) 235, N. Sivammal v. MD, Pandian Roadways Corpn. (11) (1979) 4 SCC 365 : 1979 SCC (Cri) 996 : 1980 ACJ 55, Concord of India Insurance Co. Ltd. V. Nirmala Devi. (12) AIR 1930 Mad 626 (2) : 58 MLJ 337 : 1930 MWN 29 : 124 IC 511 : 31 MLW 438, Vulcun Insurance Co. Ltd. V. Corpn. of Madras. (13) AIR 1921 Mad 427, Secy. To the Board of Revenue, Income Tax v. Al. Ar. Rm. Arunachalam Chettiar & Brothers. (14) (1861-73) All ER Rep 918 : 42 LJ Ch 334, Jones v. Ogle. (15) 51 LJ Ch 935, Huggins exp., Re. 25. Certain submissions were made by Smt. I. Mammu Vani on the strength of the observations made in Asha v. United India Insurance Co. Ltd.[2]. However, Sri J. Kanakaiah learned counsel representing contesting respondents-claimants referred to para 16 in National Insurance Co. Ltd. V. Indira Srivastava and others (1 supra) and would maintain that the said decision also had been considered and, hence, since the statutory deductions made while computing the income by the Tribunal being in accordance with the ratio laid down in the decision in National Insurance Co. Ltd. V. Indira Srivastava and others (1 supra) the same to be confirmed. 26. In National Insurance Co. Ltd. v. Padmavathy[3] it was held as hereunder. “.........income tax, Professional tax which are deducted from the salaried person goes to the coffers of the government under specific head and there is no return. Whereas, the General Provident Fund, Special Provident Fund, L. I. C. , contribution are amounts paid specific heads and the contribution is always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried person is deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable under the Motor Vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot be any deductions in the statutory compensation, if the Legal Representatives are entitled to lump sum payment under the contractual liability. If the contributions made by the employee which are otherwise savings from the salary are deducted from the gross income and only the net income is taken for computing the dependency compensation, then the Legal Representatives of the victim would lose considerable portion of the income. In view of the settled proposition of law, I am of the view, the tribunal can make only statutory deductions such as Income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary of the deceased person while determining the monthly income for computing the dependency compensation. Any contribution made by the employee during his lifetime, form part of the salary and they should be included in the monthly income, while computing the dependency compensation. " 27. In Advanced Law Lexicon by P. Ramanatha Aiyar, the term “income” has been defined as hereunder. "The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture." It has also been stated : ‘income' signifies 'what comes in' (per Selborne, C. , Jones v. Ogle, 42 LJ ch. 336 ). 'it is as large a word as can be used' to denote a person's receipts (per jessel, M. R. Re Huggins, 51 LJ Ch. 938.) income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. Secy. To the Board of Revenue, Income Tax v. Al. Ar. Rm. Arunachalam Chettiar & Brothers (AIR 1921 Mad 427 (SB ). Ref. Vulcun Insurance Co. Ltd. v. corpn. Of Madras (124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626: 58 MLJ 337.) " 28. In S. Narayanamma v. Secy. To Govt. of India, Ministry of Telecommunications[4] it was observed as hereunder. “In this background, now we will examine the present deductions made by the Tribunal from the salary of the deceased in fixing the monthly contribution of the deceased to his family. The Tribunal has not even taken proper care while deducting the amounts from the salary of the deceased, at least the very nature of deductions from the salary of the deceased. My view is that the deductions made by the Tribunal from the salary such as recovery of housing loan, vehicle 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 earnings of the deceased. These advances or loans are part of his salary. So far as house rent allowance is concerned, it is beneficial to the entire family of the deceased during his tenure, but for his untimely death the claimants are deprived of such benefit which they would have enjoyed if the deceased were alive. On the other hand, allowances, like traveling 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 Tribunal that the deceased was getting Rs.1401/- as net income every month is unsustainable as the deductions made towards vehicle loan and other deductions 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 he Supreme Court in the judgment in Helen case ((1999) 1 SCC 90 : 1999 SCC (Cri) 197). The Supreme Court in Concord of India Insurance Co. Ltd.