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Judgment
Instead of disposal of the application, we propose to hear out the appeal itself by treating it as on day''s list.
This appeal is at the instance of the applicants u/s 166 of the Motor Vehicles Act and is directed against an award dated 18th October, 2001 passed by the learned Additional District-cum-Special Court and Motor Accident Claim Tribunal, Hooghly in MAC Case No. 365 of 1999 thereby disposing of the said application by awarding a sum of Rs. 3,67,000/- as compensation with interest at the date of 9% per annum from the date of the application till realization.
As a sum of Rs. 50,000/- had already been paid to the applicants pursuant to an order passed in proceeding u/s 140 of the Act, the Insurance Company was directed to pay the balance amount of Rs. 3,67,000/- minus Rs. 50,000/- = 3,17,000/-.
Being dissatisfied, the applicants have come up with the present appeal.
The only point argued by Mr. Mondal, learned Advocate appearing on behalf of the appellants, in this appeal is that in assessing the amount of compensation, the learned Tribunal below wrongly treated the net income of the victim to be his income by totally overlooking the fact that the gross income less tax paid thereon should be the real income.
As pointed out earlier, in this case, the learned Tribunal below found that the offending vehicle was responsible for the death of the victim and that the victim had gross income of Rs. 5,369.12P, but after taking into consideration the various amounts deposited by the said employee in the provident fund and other funds, the net income came down to Rs. 2,850/- �and the learned Tribunal below assessed the amount by applying multiplier of 15 by making a round figure of Rs, 3,000/-.
Mr. Mondal in this connection relied upon a recent decision of the Hon''ble Supreme Court in case of National Insurance Company Ltd. v. Indira Srivastava & Ors., (2008)1 TAC 424 (SC), wherein it was specifically held that only the tax amount payable On gross income should be deducted for the purpose of ascertaining the income of the victim.
Mr. Pahari, learned Advocate appearing on behalf of the Insurance Company, has, however, opposed the aforesaid contention of Mr. Mondal and has relied upon a decision of the Hon''ble Supreme Court in case of Asha and Others Vs. United India Insurance Co. Ltd. and Another, in support of his contention that the learned Tribunal below was quite justified in taking into consideration the net amount of income after deduction of provident fund and other deduction.
Therefore, the only question that falls far determination in this appeal is that whether in the facts of the present case, the learned Tribunal below was justified in taking into consideration the net income stated above as the "income" of the victim far the purpose of assessing the compensation.
After hearing the learned Counsel appearing an behalf of the parties and after going through the decision of the Hon''ble Supreme Court in case of National Insurance Company Ltd. v. Indira Srivastava & Others (supra), we find that in the said decision, the earlier decision of the Hon''ble Supreme Court in the case of Asha (supra) relied upon by Mr. Pahari was taken note of and the Court was of the view that the Hon''ble Supreme Court in the case of Asha (supra) did not address itself an the question raised.
The Hon''ble Supreme Court, further, held that it did not appear that any precedent was noticed nor the term "just compensation" was considered in the light of the changing societal condition as also the perks which were paid to the employee in the decision of Asha (supra).
We, thus, find that far the purpose of assessing compensation, the learned Tribunal below should take into consideration the grass income less any amount of tax that may be paid by the employee.
In the case before us, it appears from the evidence an record that the grass income was Rs. 5,368.12P, out of which Rs. 401/- was deducted towards professional tax. The victim was not liable to. pay any amount of income tax having regard to. his amount of salary.
Therefore, in this case, the income of the victim should be treated to be Rs. 5,369/- minus Rs. 40 = Rs. 5,319. We make it a round figure of Rs. 5,300/- far the purpose of calculation. On the basis of such income and by application of multiplier of 15 by applying the Second Schedule of the Motor Vehicles Act, the total amount comes to. Rs. 6,45,500/-, out of which Rs. 50,000/- have already been paid in proceeding u/s 140 of the Act.
Therefore, in proceeding u/s 166 of the Act, the Insurance Company was liable to pay Rs. 5,95;500/- with interest at the rate of 12% per annum from the date of filing of the application till 31st December, 1999 and at the rate of 8% per annum from 1st January, 2000 till actual deposit of the amount. The balance enhanced amount be paid within one month from today in the same manner, as indicated in the award.
It is needless to mention that the amount of interest will stop running the from date of deposit of the amount by the Insurance Company and No. further interest will be payable an the amount already deposited.
With the aforesaid observation, the appeal is, thus, allowed. The award impugned is modified to. the extent indicated above.
In view of disposal of the appeal itself, the connected application has become infructuous and the same is, accordingly, disposed of.
There will, however, be no order as to costs.
Lower Court records be sent down to the learned Tribunal below.