TMI Blog2013 (5) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... reducing it. Therefore, judgment dated 21.06.2003 by Motor Accident Claims Tribunal, Jaipur is affirmed and appeals by the Appellants and Insurance Company are dismissed. 2. The factual matrix of the case is that on 14th September, 1996 one Mr. Sajjan Singh Shekhawat was sitting on his scooter which was parked on the side of the road and was waiting for one Junior Engineer, N. Hari Babu and another whom he had called for discussion. At that time, the non-applicant No. 1, driver of the Jeep No. RJ-10C-0833 came driving from the Railway Station side with high speed, recklessly and negligently and hit the scooter. Sajjan Singh along with his scooter came under the Jeep and was dragged with the vehicle. Due to this accident fatal injuries was caused to him and on reaching the Hospital he expired. The scooter was also damaged completely. 3. Appellant No. 1, the wife of the deceased was aged about 24 years; Appellant No. 2, the daughter was aged about 2 years and Appellant No. 3, the mother was aged about 55 years at the time of death of the deceased. They jointly filed an application to the Tribunal alleging that negligent and rash driving by non-applicant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal by deducting certain amounts towards Provident Fund, Pension and Insurance. Without any reason, the Tribunal also reduced the salary at ₹ 8,000/- per month though actual salary of the deceased as per Last Pay Certificate (for short 'LPC') was ₹ 8,920/-. Out of such reduced salary of ₹ 8,000/-, the Tribunal further deducted a sum of ₹ 1,000/- per month towards Provident Fund, Pension and Insurance and thereby considered the actual salary of deceased to be ₹ 7,000/- per month. An amount of ₹ 4500/- was added to it towards future income and, thereby the net income of deceased was assessed at 11,500/- per month (₹ 7,000/- + ₹ 4,500/- ). 9. Admittedly, Sajjan Singh died at the age of 28 years and 7 1/2 months. He was in the services of the State Government posted as an Assistant Engineer. In the normal course, he would have continued in the services of the State Government upto February, 2026, until attaining 58 years or upto February, 2028, until attaining 60 years. As per the decision of this Court in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. (2009) 6 SCC 121, Sajjan Singh havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to be ₹ 8000/- only out of this on account of GPF and State Insurance ₹ 1000/- has been deducted and monthly income is assessed as ₹ 7,000/-. Thereafter, taking into account increasing income in future etc. ₹ 4500/- has been added and monthly income is assessed to be ₹ 11500/- this assessment according to evidence on record and established law, does not appear to be proper. It is also worth mentioning that the tribunal for granting compensation to the Appellants has taken unit method has basis but while doing so the amount that the deceased would have spent on his personal expenses which is deductible as per judgment of the Hon'ble Supreme Court in the Sarla Verma case and other cases has not been deducted, because of which the dependency is not properly assessed. Thereafter, the multiplier of 15 applied by the tribunal also does not seen to be in accordance to law. It is also worth mentioning that assessing amount in the said manner the tribunal had not deducted the payable income tax and the amount of pension received by Smt. Vimal Kanwar due to death of deceased. Similarly, while assessing dependency deduction for GPF and State Insurance, addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimants come within the periphery of the Motor Vehicles Act to be termed as Pecuniary Advantage liable for deduction. (ii) Whether the salary receivable by claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as Pecuniary Advantage liable for deduction. (iii) Whether the income tax is liable to be deducted for determination of compensation under the Motor Vehicles Act and (iv) Whether the compensation awarded to the Appellants is just and proper. 16. For determination of the aforesaid issues, it is necessary to notice the relevant facts as mentioned hereunder. 17. Smt. Vimal Kanwar, PW-3 (Appellant No. 1 herein), who is the wife of the deceased has stated in her examination in chief that her husband obtained BE Degree from Jodhpur University in First Class and he was directly appointed to the post of Assistant Engineer in the year 1994. At the time of accident he was 28 years old and was getting salary of ₹ 9,000/- per month. If he had been alive he would have got promoted upto the rank of Chief Engineer. 18. Ram Avtar Parikh, PW-2 is an employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as pecuniary advantage liable for deduction. When we seek the principle of loss and gain, it has to be between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be deducted for determination of the actual salary. But while deducting income-tax from salary, it is necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head salaries one should keep in mind that under Section 192 (1) of the Income-tax Act, 1961 any person responsible for paying any income chargeable under the head salaries shall at the time of payment, deduct income-tax on estimated income of the employee from salaries for that financial year. Such deduction is commonly known as tax deducted at source ('TDS' for short). When the employer fails in default to deduct the TDS from employee salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1A) of the Income-tax Act, 1961. Therefore, in case the income of the victim is only from salary , the presumption would be that the employer under Section 192 (1) of the Income-tax Act, 1961 has deducted the tax at source from the employee's salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 9,000/- for calculating the compensation payable to the dependent(s). 24. The fourth issue is whether the compensation awarded to the Appellants is just and proper. For determination of this issue, it is required to determine the percentage of increase in income to be made towards prospects of advancement in future career and revision of pay. In General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (1994) 2 SCC 176 this Court noticed the age and income of the deceased for determination of future prospects of advancement in life and career. The Court held as follows: 19. In the present case the deceased was 39 years of age. His income was ₹ 1032 per month. of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naove to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. 15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their families. 18. Therefore, we do not think that while making the observations in the last three lines of para 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- = ₹ 12,000/- per month or ₹ 12,000 x 12 =1,44,000/- per annum. As the deceased was 28 1/2 years old at the time of death the multiplier of 17 is applied, which is appropriate to the age of the deceased. The normal compensation would then work out to be ₹ 1,44,000/- x 17 =₹ 24,48,000/- to which we add the usual award for loss of consortium and loss of the estate by providing a conventional sum of ₹ 1,00,000/-; loss of love and affection for the daughter ₹ 2,00,000/-, loss of love and affection for the widow and the mother at ₹ 1,00,000/- each i.e. ₹ 2,00,000/- and funeral expenses of ₹ 25,000/-. 31. Thus, according to us, in all a sum of ₹ 29,73,000/- would be a fair, just and reasonable award in the circumstances of this case. 32. The rate of interest of 12% is allowed from the date of the petition filed before the Tribunal till payment is made. 33. Respondent No. 3 is directed to pay the total award with interest minus the amount (if already paid) within three months. The Appellant No. 2-daughter who was aged about 2 years at the time of accident of the deceased has already atta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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