National Insurance Company Limited vs Altafbhai Rahemtulla Kureshi

R.M. Chhaya, J

Feeling aggrieved and dissatisfied by the judgment and award dated 16.10.2018 passed by the Motor Accident Claims Tribunal (Aux), Bhavnagar in Motor Accident Claim Petition no. 235 of 2012, the appellant-insurance Company has preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2 . This Court, by an order dated 25.6.2019, was pleased to issue notice for final disposal.

Following facts emerge from the record of the appeal:-

3.1 That, the accident occurred on 7.4.2012 on Dholera Highway Road, Das Nala at Nari Chowkdi. It is the say of the original claimants that the deceased was working in the Forest Department and was driving his Hero Honda motorcycle bearing registration no. GJ-4-AG-5488 on left hand side at about 10:15 a.m. It is further the case of the original claimants that when the motorcycle reached Nari Chowkdi, Nr. Das Nala, a truck bearing registration no. GJ-12-W-9234 came from wrong side and dashed with the motorcycle. As per the record, the deceased sustained fatal injuries and died on the spot. The original claimants preferred the present claim petition under Section 166 of the Act and claimed compensation of Rs. 29,00,000/-.

3.2. It was the case of the original claimants that the deceased was 53 years old and was serving with the Forest Department and was earning Rs. 35,455/- by way of monthly salary. The original claimants also adduced oral evidence by way of deposition of Savitaben wife of the deceased at Exh. 24 and documentary evidences, such as, FIR at Exh. 31, Panchnama of the place of accident at Exh. 32, postmortem report at Exh. 34, charge-sheet at Exh. 35, pay slip at Exh. 36 and school leaving certificate at Exh. 37. The Tribunal came to the conclusion that the accident occurred because of negligence on the part of the truck driver and determined yearly income of the deceased at Rs. 4,24,070/- and following the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, gave prospective income to the tune of 15% and after deducing one-third towards personal expenses, awarded a sum of Rs. 35,36,331/- as compensation under the loss of income by applying 11 multiplier. Following the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra), the Tribunal also gave additional compensation of Rs. 70,000/- as compensation under different conventional heads including funeral expenses and thus, while allowing the claim petition, was pleased to award Rs. 36,46,331/- with 9% interest and being aggrieved by the said judgment and award, the present appeal is filed by the appellant.

Heard Mr. Vibhuti Nanavati, learned advocate for the appellant and Mr. Rajesh Mankad, learned advocate for the original claimants. Though served, no one appears for respondent no. 2. Mr. Nanavati seeks permission to delete respondent no. 1 who happens to be the driver of the truck. At the request of Mr. Nanavati, learned advocate for the appellant, respondent no. 1 stands deleted from the array of this appeal. We have also gone through the relevant documents produced by the learned advocates appearing for the respective parties.

Mr. Vibhuti Nanavati, learned advocate for the appellant has contended that the Tribunal has committed an error in calculating the actual salary of the deceased. It is contended that the Tribunal has committed an error in not considering the income-tax payable as per the income-tax standard prevailing in the year of accident and thus, calculated more income than the actual income. Mr. Nanavati has taken this Court through the relevant documents and more particularly, the pay slip and contended that even if the yearly salary of the deceased is determined at Rs. 4,39,740/-, the Tribunal ought to have deducted professional tax paid for the whole year and so also the income-tax including the education cess as applicable in the said Assessment Year. On the aforesaid sole ground, Mr. Nanavati contended that the impugned judgment and award deserves to be modified by allowing the appeal as prayed for.

Per contra, Mr. Rajesh Mankad, learned advocate for the original claimants has vehemently opposed the appeal. It is submitted that the Tribunal has correctly assessed the income and has rightly granted the compensation of Rs. 35,36,331/-under the head of loss of income. It is contended that as such, the Tribunal ought to have deducted one-fourth as the number of dependents are 4 in number, whereas, the Tribunal has deducted only one-third. However, as the original claimants are satisfied with the award, no appeal is preferred. It is therefore submitted that the appeal, being merit-less, deserves to be dismissed.

No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.

Upon considering the submissions made and on perusal of the relevant documents produced by the learned advocates appearing for the respective parties and more particularly, the pay slip, at the outset, it deserves to be noted that the deceased was in Government service i.e. Forest Department. As per the pay slip at Exh. 36, the gross salary of the deceased was Rs. 4,39,740/-. As per the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra), the income would mean gross income minus tax. As per the provisions of the Income-tax Act, 1961 as well as the other tax structure applicable in the case on hand, the deceased, as a Government servant, was supposed to pay Rs. 200/- per month as professional tax and therefore, the amount of professional tax upon the deceased comes to Rs. 2,400/- per year. Over and above the same, the income-tax as per the slab of the Assessment Year including the education cess deserves to be deducted from the gross income. The accident occurred on 7.4.2012 and in the Assessment Year 2012-13, the basic exemption limit for the said Assessment Year was Rs. 2,00,000/-. Taking into consideration the base of the gross income of the deceased at Rs. 4,39,740/- for determination of the income, it would be appropriate to deduct only Rs. 2,400/- as professional tax and the income of the deceased would therefore comes to Rs. 4,37,340/- per year. Rs. 2,00,000/- being the basic exemption and Rs. 1,50,000/- as general deductions under Section 80CC of the Income-Tax Act, 1961 would mean that the net taxable income of the deceased was Rs. 87,340/- and the income-tax payable including 3% education cess (at the rate of 10%) would comes to Rs. 11,092/-.

In light of the aforesaid conclusion, there would be a very minor and meager deduction in the compensation awarded by the Tribunal under the head of loss of dependency. In the peculiar facts and circumstances of the case and considering the evidence on record, we are of the opinion that no interference is called for in exercise of our jurisdiction. This Court, having considered the facts and circumstances as well as the evidence on record of this case, is of the opinion that the Tribunal has awarded just compensation, which does not require any interference.

The appeal therefore fails and is hereby dismissed. As the appeal is dismissed, Civil Application also stands dismissed. However, there shall be no order as to costs in this appeal.