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Judgment
,,
V.L. Achliya, J",,
1] Being aggrieved by the judgment and award dated 9.12.2011 passed by the Motor Accident Claims Tribunal, Ahmednagar, in Motor Accident",,
Claim Petition No.376/2007, the appellant â€" claimant has preferred this appeal seeking enhancement of compensation.",,
2] Heard learned counsel appearing for the appellant and respondents. Perused the record and proceedings.,,
3] Before adverting to deal with the submissions advanced, it is useful to refer few facts leading to fling of claim petition. For the sake of brevity and",,
convenience, the parties are referred as they are described in the impugned judgment.",,
4] The appellant â€" claimant had fled petition u/s 166 of the Motor Vehicles Act seeking compensation on account of accidental death of her husband,,
Arun Ramdas Memane who died in motor vehicle accident which had taken place on 2.6.2007 at about 4-00 p.m. on Nagar-Pune road opposite,,
Kamargaon Bus Stand. The claimant has approached with a case that at the time of accident, the appellant â€" claimant and the deceased were",,
proceeding from Pune towards Nagar on their motorcycle bearing registration No.MH-16-P-3680. The deceased was driving the motorcycle and the,,
appellant â€" claimant was a pillion rider. While they were near Kamargaon Shivar, the ofending vehicle i.e. the S.T. Bus bearing registration No.MH-",,
20-D-7720 owned by the respondent no.1 which was coming from Pune and proceeding towards Nagar gave dash to motorcycle. Due to dash given,",,
the deceased sustained multiple injuries including injury to head. The appellant â€" claimant also sustained injury in said accident. It is contended that,,
the accident occurred due to sole negligence and rash & negligent driving on the part of driver of the S.T. Bus. The deceased was shifted to Civil,,
Hospital, Ahmednagar, He succumbed to injuries sustained in the accident. The appellant was admitted to Kamalnayan Hospital at Tarakpur,",,
Ahmednagar.,,
5] The appellant has claimed that at the time of accident, the deceased was 24 years of age and serving in Military (Infantry) and posted at Gwalior as",,
a Sipoy. He was receiving Rs.10,000/- per month as salary. The appellant â€" claimant has claimed that the deceased was getting free meal and",,
residential facilities at the place of his posting. On account of accidental death, the claimant has worked out the claim as Rs.15,30,000/-. However,",,
restricted the claim for the purpose of petition and Court fees to Rs.10,00,000/-.",,
6] The respondent no.1 â€" MSRTC contested the claim with contention that the accident solely occurred due to fault on the part of the deceased,,
who was driving the motorcycle in an excessive and unmanageable speed. While overtaking the Truck ahead of him, the deceased could not control",,
his motorcycle and gave dash to the driver side bumper of the Bus and sustained injuries. The respondent no.1 denied the case as pleaded about age,",,
occupation and income of the deceased to claim compensation of Rs.10,00,000/-.",,
7] The respondent nos.2 & 3 â€" the father and mother of the deceased, appeared in the matter and fled their written statement. They have claimed",,
that the appellant has fled the petition in gross suppression of true facts and tried to mislead the Court. The appellant â€" claimant has shown her,,
residential address as her matrimonial house at village Raytale Tq.Parner Dist.Ahmednagar though she is residing at her parental place at Sonewadi,,
Tq. & Dist.Ahmednagar. In order to grab the entire amount of compensation, the appellant has deliberately shown her address as that of her",,
matrimonial place of residence. In brief, the respondent nos.2 & 3 have approached with a case that the deceased was their only son. The deceased",,
married with the appellant about one month prior to the accident. After the accident, the entire expenditure of her treatment was borne by them.",,
Instead of taking care of respondent nos.2 & 3, the appellant â€" claimant left the matrimonial house and residing with her parents. Her parents are",,
trying to perform her marriage. According to respondent nos.2 & 3, the appellant â€" claimant is not entitled to receive compensation. In short, the",,
respondent nos.3 & 4 have claimed that they alone are entitled to receive the compensation.,,
8] In order to prove the claim, the appellant â€" claimant has examined herself. The respondent no.1 examined the driver of the Bus in support of their",,
defence. On due appreciation of rival pleadings and oral and documentary evidence adduced in the case, the Tribunal has reached to the conclusion",,
that the accident and consequential death of deceased had occurred due to sole negligence on the part of the driver of S.T. Bus. The Tribunal has,,
assessed the compensation to be payable as Rs.9,00,000/-(inclusive of No Fault Liability) with future interest at the rate of 7.5% p.a. from the date of",,
petition till its realization. Out of the compensation awarded, the amount to the extent of Rs.1,50,000/-each was directed to be paid to respondent nos.2",,
and 3. The balance of Rs.5,50,000/- was directed to be paid to the appellant â€" claimant. Being dissatisfed with the award passed by the Tribunal, the",,
appellant â€" claimant has preferred this appeal seeking enhancement of compensation.,,
9] In brief, it is the contention of learned counsel for the appellant that the Tribunal has erred in deducting Rs.4750/- from monthly salary of deceased",,
in assessment of compensation. It is submitted that except the statutory deductions, no other deduction is permissible under law from the salary of the",,
salaried person while assessing compensation to be payable under the provisions of Motor Vehicles Act. So also the view taken by the Tribunal that,,
as appellant â€" claimant is receiving pensionary beneft, she is not entitled to receive more than Rs.6,000/- per month towards loss of income, is",,
against the settled position in law.,,
10] It is further submitted that while assessing the compensation, the Tribunal has not considered the future prospects of the deceased who was in",,
permanent employment with Government of India. He had good prospects. The salary was subject to upward revision in near future. On account of,,
future prospects, the income to the extent of 50% should have been added to the existing income of the deceased while assessing compensation by the",,
Tribunal. Similarly, the multiplier of 18 ought to have been applied in assessment of compensation by taking into consideration the age of deceased. In",,
support of the submissions that for the purpose of assessment of compensation, no deduction other than statutory deductions are permissible in law,",,
the learned counsel has referred and relied upon decisions of the Apex Court in the cases of Manasvi Jain v. Delhi Transport Corporation Limited &,,
others reported at (2014) 13 SCC 22 and Sebastiani Lakra & others v. National Insurance Company Ltd. & another reported at 2018 ALL SCR 2175.,,
By referring the decision in the case of National Insurance Company Limited V/s Pranay Sethi and others reported at (2017) 16 SCC 68,0 the learned",,
counsel submits that compensation of Rs.23,92,000/- deserves to be awarded to the appellant and urged to re-assess the compensation after adjusting",,
the compensation already awarded and paid to the claimants.,,
11] On the other hand, learned counsel for the respondent no.1 supported the judgment and award passed by the Tribunal. It is submitted that the",,
accident and consequential death of deceased occurred due to sole negligence and fault on the part of deceased. It is submitted that the compensation,,
as claimed is excessive. The Tribunal has duly considered the evidence and awarded the compensation.,,
12] I have carefully considered the submissions advanced in the light of rival pleadings, oral and documentary evidence adduced in the case and the",,
reasons and fndings recorded by the Tribunal in assessing the compensation. If we consider the reasons and fndings recorded by the Tribunal in,,
assessing the compensation, then the Tribunal has accepted the case of the appellant that the deceased was 24 years of age and earning Rs.10,750/-",,
per month as a person permanently employed in military service as Sipoy. While assessing the compensation, the Tribunal has considered the monthly",,
contribution of the deceased to his family as Rs.6,000/- per month. The Tribunal has observed that after the death of the deceased, the appellant â€"",,
claimant is receiving pension to the extent of half of the salary of deceased. After deducting the pension to be payable to the appellant â€" claimant,,
from the monthly salary of the deceased, the Tribunal has assessed the monetary loss as Rs.6,000/- per month on account of accidental death of",,
deceased. Accordingly, the Tribunal has assessed the monetary loss as Rs.72,000/- per year. After making deduction to the extent of 1/3rd towards",,
personal expenses of the deceased, the Tribunal worked out the yearly loss of income as Rs.48,000/- (Rs.72000 â€" Rs.24000 = Rs.48000).",,
Accordingly, the Tribunal assessed the monetary loss as Rs.8,64,000/- and further awarded Rs.26,000/- in lump-sum towards loss of consortium, loss",,
of estate, funeral expenses, mental and physical agony and awarded total compensation of Rs.9,00,000/-.",,
13] In my view, the assessment of compensation made by the Tribunal is against the settled position in law. It is well settled position in law that except",,
the statutory deduction to be made towards income tax, professional tax, no other deduction is permissible under law. The deduction from salary of the",,
deceased towards insurance, pensionary benefts, gratuity or grant of employment to kin of deceased is not permissible. In this context, the learned",,
counsel for the appellant has placed reliance upon the decision in the case of Sebastiani Lakra & others v. National Insurance Company Ltd. &,,
another reported at 2018 ALL SCR 2175 wherein the Apex Court has observed in paragraph nos.12 to 16 as under:-,,
“12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of",,
pensionary benefts or gratuity or grant of employment to akin of the deceased. The main reason is that all these amounts are earned by the deceased,,
on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs,,
of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to ‘just compensation’ under the,,
Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which",,
accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be,,
said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.,,
As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not,,
because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took,,
out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity,,
of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings.",,
Similar would be the position in case of other investments like bank deposits, share, debentures etc.. The tortfeasor cannot take advantage of the",,
foresight and wise fnancial investments made by the deceased.,,
As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer.",,
It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of,,
deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and,,
gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot",,
be deducted.,,
As held by the House of Lords in Perry v. Cleaver [(1969) 1 ALL ER 555] the insurance amount is the fruit of premium paid in the past, pension",,
is the fruit of services already rendered and the wrong doer should not be given beneft of the same by deducting it from the damages assessed.,,
Deduction can be ordered only where the tortfeasor satisfes the court that the amount has accrued to the claimants only on account of death of,,
the deceased in a motor vehicle accident.â€,,
14] Similar view has been taken by the Apex Court in the case of Manasvi Jain v. Delhi Transport Corporation Limited & others reported at (2014) 13,,
SCC 22. The Apex Court has observed in paragraph no.8 as under:-,,
“8. This Court in Shyamwati Sharma & Ors. Vs. Karam Singh & Ors. (2010) 12 SCC 378, while considering the issues of deduction of taxes,",,
contributions etc., for arriving at the fgure of net monthly income, held that -",,
“while ascertaining the income of the deceased, any deductions shown in the salary certifcate as deductions towards GPF, life insurance premium,",,
repayments of loans etc., should not be excluded from the income. The deduction towards income tax / surcharge alone should be considered to arrive",,
at the net income of the deceased.â€,,
15] In the case of National Insurance Company Limited V/s Pranay Sethi and others (supra), the Constitution Bench of the Hon’ble Apex Court",,
has laid down following broad guidelines for the purpose of determination of compensation u/s 166 of the Motor Vehicles Act :-,,
“59.1. The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a diferent view,,
than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a",,
contrary view than what has been held by another coordinate Bench.,,
59.2. As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a",,
binding precedent.,,
59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased",,
had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to",,
50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less",,
tax.,,
59.4. In case the deceased was self-employed or on a fxed salary, an addition of 40% of the established income should be the warrant where the",,
deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the,,
deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the,,
income minus the tax component.,,
59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to",,
32 of Sarla Verma which we have reproduced hereinbefore.,,
59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with para 42 of that judgment.,,
59.7. The age of the deceased should be the basis for applying the multiplier.,,
59.8. Reasonable fgures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and",,
Sr. No.,Heads,"Compensation
awarded
1.,Monthly Income of deceased,"Rs.10,750/-
2.,Deduction to the extent of 1/3rd towards personal expenses,Rs.3583/-
3.,Monthly Income of deceased (10750-3583),Rs.7167/-
4.,Addition towards future prospects (i.e. 50% of 7167),Rs.3583/-
5.,Net monthly income of the deceased,"Rs.10,750/
6.,"Yearly loss of income to be considered for assessment (10750 x
12)","Rs.1,29,000/-
7.,"Multiplier of 18 to be applied considering age of deceased as 24
years (1,29,000 X 18)","Rs.23,22,000/-
8.,"Compensation under conventional heads such as loss of love and
affection, consortium, funeral expenses and loss of estate etc","Rs.30,000/-
9.,Total compensation to be awarded,"Rs.23,52,000/-