IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.282 of 2006 NATIONAL INSURANCE COMPANY LTD. (THROUGH THE REGIONAL MANAGER AT REGIONAL OFFICE, “SONE BHAWAN” (4TH FLOOR), BIRCHAND PATEL MARG, PATNA (FOR THE SR. DIVISIONAL MANAGER, DIVISIONAL OFFICE AT MOTIJHEEL, MUZAFFARPUR) ……APPELLANT/OPPOSITE PARTY NO. 2 Versus 1. SMT. SITA DEVI, WIFE OF LATE NANDU RAM 2. RAJ KUMAR, SON OF LATE NANDU RAM 3. RITU KUMARI, DAUGHTER OF LATE NANDU RAM ALL ARE RESIDENT OF MOHALLA CHANDWARA, P.S. TOWN, DISTRICT MUZAFFARPUR (SL. NO. 1 TO 3 ARE CLAIMANTS NO. 1 TO 3 RESPECTIVELY) ……..RESPONDENT/CLAIMANT 4. PANKAJ KUMAR THAKUR, SON OF SRI HARIBANSH THAKUR, RESIDENT OF VILLAGE PAUNI HASHANPUR (ABUL HASSAN), P.O. PAUNI HASHANPUR, DISTRICT VAISHALI ……..RESPONDENT/OPPOSITE PARTY NO. 1 07/- 06.09.2010 Heard learned counsel for both the parties. This Miscellaneous Appeal is directed against the judgement dated 6.5.2006 and Award dated 12.5.2006 passed by the IInd Additional Sessions Judge-cum-Motor Vehicles Accident Claim Tribunal, Muzaffarpur in Claim Case No. 115 of 2003 by which the claimant has been granted the compensation of Rs. 8,81,200/- with an interest of 6% per annum from the date of the filing of the application till the date of realization. The appellants are the insurer. The case of the claimant is that the deceased while working as clerk in Government office in R.E.O. Department met with an accident due to the rash and negligent driving of the truck bearing registration no. BHA – 3623 by which Nandu Ram succumbed to injuries and the deceased was 25 years old - 2 - and was earning sarlary of 7,585/- per month. The insurance rested the claim due to rash and negligent driving and other ground like limitation non-joinder but admitted that vehicle was insured. The tribunal on considering the evidence held claimant entitle to compensation to the tune of Rs. 8,81,200/- with 6% interest. The learned counsel for the appellant, however, contends that the quantum of compensation has been assessed on the gross salary whereas it ought to have been assessed on the net salary and has placed reliance upon a decision reported in 2008 (2) SCC 774 ASHA AND OTHERS VERSUS UNITED INDIA INSURANCE CO. LTD. AND ANOTHER, for this proposition. However, in that case the salary of the deceased was considered which includes the Basic, Special Pay, FDA, VDA, CCA, HRA, Washing all., Conv. Cant.sub. CEA and the gross salary was computed, taking all these earning as Rs. 8632.00. However, it also considered the deduction made in the salary of the deceased under the head CPF(S), CPF(Add), GIS, LIC/GIS, HRR, MSPI, Society, Union, HBA, B.Fund and the deduction was added as Rs. 1989.85 and now deducting the deductions from the gross salary, i.e. 8632-1989 computed as net payable Rs. 6642/- per month and this was the salary taken into consideration for computing the quantum and the said was challenged before the Supreme Court and on these facts it was held that the loss suffered by the claimant is the amount which they would have been receiving at the time when the deceased was alive and there can be no doubt that the dependents would only be liable to get - 3 - compensation on net salary less 1/3rd for personal expenses of deceased and held that High Court was right in so holding. However, in the facts and circumstances, though it has come in evidence that the salary which the Tribunal has taken into consideration is the salary as received as basic pay, dearness allowance, house allowance, medical allowance and taking all together computed the gross in-come as Rs. 7,585/-. However, there is no mention about any deduction. Before the Tribunal it was neither pleaded nor any proof was brought on record nor there is any material to suggest that there is any deduction from the gross salary of the deceased and hence the papers filed regarding the salary of the deceased as 7,585/- was the pay which the deceased was receiving. However, if the insurer so likes, pray for lesser amount at compensation he was required to brought the details of deduction if any from salary of deceased alleged to have been received by the claimant and hence I do not find any merit in this appeal as nothing has been brought on record to suggest that there was any deduction. Hence I do not find any merit in appeal. Learned counsel for the appellant contended that statutory amount deposited before filing of this appeal be sent to lower court and order to be withdrawn by the appellant subject to condition that the amount has been paid to the claimant. This appeal is accordingly dismissed. Praveen (Gopal Prasad,J.)