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Judgment
1.Heard Mr. A.K. Gupta, the learned counsel for the appellants as well as Mr. S. Dutta, the learned Senior counsel, assisted by Ms. M. Choudhury,
the learned counsel appearing for the respondent No. 2 and Mrs. R.D. Mozumdar, the learned counsel appearing for the respondent No. 3.
This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Actâ€) is preferred against the judgment and
award dated 03.05.2007, passed by the learned Member, Motor Accident Claims Tribunal, Tinsukia in MACT Case No. 3/2005. This appeal is for
enhancement of award on the ground that the learned Tribunal had not considered the addition on account of future prospects and there was an error
in computing the salary allowable for the purpose of computing the compensation.
The case of appellant in brief is that while the deceased, namely, Manoj Bhattacharjee was going from his residence towards his office on his
scooter bearing registration No. AS-23/A-8258. Near St. Lukes Hospital, the offending truck bearing registration No. AS-23/8269 which was being
driven in the rash and negligent manner by Md. Badar Alam, respondent No. 1, came from the wrong side and knocked down the scooter. As a result,
the deceased fell down on the road and succumbed to the injuries while being taken to hospital. At the time of his death, the deceased was serving as
a Manager of Allahabad Bank, Chariali Branch. It was projected that the deceased was 39 years old and he was drawing a gross salary of
Rs.18,994.70. In the claim petition, the appellant sought for a compensation of Rs.30,61,321.60. The respondent No. 1 by filing his written statement
had denied his liability on the ground that the accident took place due to negligence of the deceased. The respondent No. 2 i.e. Oriental Insurance Co.
Ltd. who was the insurer of the offending truck by filing the written statement, took the usual pleas and put the appellant to strict proof of their claim.
The respondent No. 3 i.e. National Insurance Co. Ltd., denied  its liability on the ground that the accident took place due to rash and negligent
driving of the truck.
On the basis of the pleadings, the learned Tribunal framed the following issues for adjudication:
(i) Whether a motor vehicle accident took place on 10.11.2004 involving vehicle No. AS-23-8269 (truck)?
(ii) Whether the accident took place due to rash and negligent driving?
(iii) Is the claimant is entitled to get any compensation? If so, to what extent and by whom?
In respect of issues No. 1, 2 and 3, by discussing the evidence on record, the learned Tribunal had held that there was a motor vehicle accident
involving both the scooter and offending truck and that the accident had taken place due to rash and negligent driving of the offending truck and it was
held that the deceased has succumbed to his injuries resulting from the said accident. In respect of issue No. 4, considering the net salary mentioned in
the salary slip i.e. Exbt.8 as Rs.15,024/-, loss of dependency was calculated at Rs.10,000/- per month and the compensation was computed as follows:
Loss of dependency - Rs.10,000/- X 12 X 16 = Rs.19,20,000/-
Funeral Expenses - Rs.10,000/-
Loss of consortium - Rs.10,000/-
 Loss of estate - Rs.10,000/-
Total - Rs.19,50,000/-
Therefore, a sum of Rs.19,50,000/- was awarded in favour of the appellants, being the wife, son (then minor) and the mother of the deceased.
The learned counsel for the appellant has referred to the evidence of the claimants and has submitted that the learned Tribunal had committed an
error in accepting the amount shown in the net salary to be the income assessable for computing the monthly income and it had not considered that as
per the salary certificate, few deductions on account of PF subscription, LIC premium and Union subscription was required to be added back to the
net salary payable and the only deduction which was permissible on the salary was the income tax and professional tax. It is stated that the appellants
had proved the post mortem report showing the age of the deceased at 39 years and therefore, the multiplier was incorrectly applied. Moreover, the
learned Tribunal did not take into account the enhancement of the salary on account of future prospects, which according to him should be calculated
@ 50%.
The learned counsel for the respondent No. 3 has submitted that as the rash and negligent driving of the offending vehicle has been proved, no
liability can be apportioned to the respondent No. 3, who was the insurer of scooter which was being driven by the deceased.
Per-contra, the learned Senior counsel for the respondent No. 2 has submitted that there is no infirmity in the computation of the salary for the
purpose of compensation. However, relying on the entries contained in the driving licence (Exbt.4), it is submitted that the said driving licence discloses
the date of birth as 01.02.1965. Hence, on the date of his death, the age of the deceased would be 40 years 5 month and 9 days and the for the
purpose of computing the enhancement, as per ratio laid down in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors.,
MANU/SC/1366/2017: (2017) 8 Supreme 107, the applicable enhancement would be @ 30%, as settled by the Hon’ble Constitution Bench of the
Hon’ble Supreme Court. The learned Senior counsel for the respondent No. 2 has fairly submitted that in terms of the ratio laid down in the case
of Pranay Sethi (supra), the claimants/appellants are entitled to compensation under conventional heads of loss of estate, loss of consortium and
funeral expenses to the extent of 70,000/-.
Therefore, only cause of contest in this appeal is the age of the deceased at the time of the accident and the applicable rates of addition or
deduction and the multiplier. The death of the deceased on account of accident involving the motor vehicles and rash and negligent driving of the
offending vehicle is not in dispute.
Although the learned counsel for the appellant has prayed for accepting the age as given in the post mortem report, but in the opinion of this Court,
the entries contained in the driving licence (Exbt.4), showing the date of birth of deceased as 01.02.1964, would be more acceptable then the age
given in the post mortem report. A post mortem report cannot be accepted as a document more authentic then the entries contained in the driving
licence (Exbt.4). Accordingly, this Court is inclined to accept the date of birth as given in the driving licence (Exbt.4). Accordingly, the age of the
deceased on the date of the accident is accepted as 40 years 5 month and 9 days. Hence, in terms of the ratio laid down in the case of Sarla  Verma
Vs. D.T.C., (2009) 6 SCC 121, as upheld by the Constitution Bench in the case of Pranay Sethi (supra), the rate of enhancement on account of
further prospects must be taken  to be 30% in respect of person dying between the age group of 40-50 years. This Court is inclined to accept the
submissions made by the learned counsel for the appellant that from the net salary, the amount deducted towards PF subscription- Rs.1254/-, LIC
premiumRs.166/- and Union subscription- Rs.45/- are required to be added back because in the case of Pranay Sethi (supra) established income
would mean income less taxes. Accordingly, the salary which can be taken for the purpose of computing the income of the deceased would come to
Rs.16,489/-. The allowable deduction for personal expenses would be 1/3rd amount of Rs.5,496/-. Therefore, the allowable salary for computing loss
of dependency would be Rs.16,489/- less Rs.5,496/- = Rs.10,993/-. Addition on account of future prospects @ 30% would be Rs.3,297.90. Therefore,
monthly loss of dependency would be Rs.14,290.90 and on application of the multiplier of 14 loss of dependency would come to Rs.14,290.90 X 12 X
14 = Rs.24,00,871.20 rounded up to Rs.24,00,871.00. Therefore, the total compensation would be calculated as follows:
Loss of dependency - Rs.14290.90 X 12 X 14 = Rs.24,00,871/-
Loss of consortium - Rs.40,000/-
Loss of estate - Rs.15,000/-
 Funeral expenses - Rs.15,000/-
Total - Rs.24,70,871/-
Award by learned MACT - Rs.19,50,000/-
Award enhanced by - Rs.5,20,871/-
Hence, the award stands enhanced by Rs.5,20,871/- (Rupees five lakh twenty thousand eight hundred and seventy one only).
The respondent No. 2 i.e. the Oriental Insurance Co. Ltd. stands liable to pay the enhanced compensation along with the interest @ 9% w.e.f.
06.01.2005, being the date of the filing of the claim petition. The respondent No. 2 shall not be liable to pay interest on the quantum of the future
prospects being Rs.4,80,871/-, which is in terms of the judgment passed by this Court in the case of Oriental Insurance. Co. Ltd. Vs. Sulechana Devi
Keyal, MFA 96/2009 (disposed of by order dated 23.04.2014). It is provided that if any income tax is deducted on the compensation amount, the
respondent No. 2 shall be liable to hand over the Income Tax TDS Certificate within 1(one) month of making such deduction so that the appellants
can utilize the same, failing which it shall be open for the appellants to enforce the award for realizing such TDS amount.
Accordingly, the appeal stands allowed by modifying the award to the extent as indicated above. The respondent No. 2 i.e. Oriental Insurance Co.
Ltd. shall deposit the enhanced award before the learned Tribunal, Tinsukia within a period of two months from today. As held by the learned
Tribunal, the learned MACT, Tinsukia shall apportion such modified award to the three appellants in equal proportion.
Let the LCR be returned forthwith.