KALPANA GHORAI v. BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD.
2005-06-20
P.N.SINHA, PRABIR KUMAR SAMANTA
body2005
DigiLaw.ai
SAMANTA, J. ( 1 ) THIS appeal is by the claimants-appellants against the judgment and award dated 11th June, 2001 passed by the Motor Accident claims Tribunal, Contai, Midnapore in M. A. C. Case No. 14 of 2000. The aforesaid claim case was filed under Section 166 of the Motor Vehicles Act, 1988 by the Claimants-appellants on the death of one Kanailal Ghorai in a motor accident on 6th August, 1999. The claimants-appellants are the widow and two minor children of the said deceased. ( 2 ) THE rash and negligent driving of the vehicle in question by its driver and the Insurance cover of the same on the date of the accident were proved in evidence before the Claims Tribunal. The deceased at the relevant point of time was employed as Sweeper of the A. K. B. Public Health Centre, midnapore. It was further proved by Exhibit-8, the Salary Certificate issued by the employer of the victim that he earned a gross salary of Rs. 4,472/-per month. Out of the aforesaid gross amount a sum of Rs. 300a on account of G. P. F. a sum of Rs. 10/- on account of Group Insurance and a sum of Rs. 30/- on account of Professional Tax were deducted and, therefore, the net amount drawn by the deceased was at the rate of Rs. 4,132/- per month. Evidently, the deceased died at the age of 31 years. The learned Claims tribunal determined the quantum of compensation by taking into the gross salary of the deceased victim and thereby multiplying the applier of 17 on the basis of age of the deceased upon deduction of 1/3rd of the gross salary on account of personal expenses of the said victim. The learned Claims tribunal thereafter made a further deduction of Rs. 1,08,190/- from the total amount arrived at by above such calculation on the ground that there was some uncertainty of having such income regularly by the victim had he been alive.
The learned Claims tribunal thereafter made a further deduction of Rs. 1,08,190/- from the total amount arrived at by above such calculation on the ground that there was some uncertainty of having such income regularly by the victim had he been alive. ( 3 ) THIS judgment and award has been challenged by the claimants-appellants on the ground that since the quantum of compensation payable to the claimants-appellants was determined by applying the multiplier method as per the second schedule to the above Act so there was no further scope of deduction of any amount on such reasons particularly when such method has been fixed in the aforesaid second schedule by taking into account all such factors. This would further be evident from the fact that as per the second schedule, the multiplier of 17 is applicable to the victim falling within the age group of 30-35 years. If 17 is added to the maximum age of 35 years, it would be 52 years of age, by which a service holder does not normally reach the age of superannuation. We are, therefore, of the view that the learned Claims Tribunal acted illegally by deducting a further sum of Rs. 1,08,190/- from the amount of compensation determined by him by applying the aforesaid multiplier of 17 on the annual income of the deceased victim after making necessary deduction of 1/3rd of the same for his personal expenses. ( 4 ) MR. Banik, learned Advocate appearing on behalf of the claimants-appellants further contended that the learned Claims Tribunal ought to have considered for the purpose of determination of the quantum of compensation the prospect of career advancement of the deceased victim. We are unable to accept such contention. Evidently, the victim was employed as a Sweeper and it has not been brought to our notice as to whether any promotional avenue was open to the deceased victim. That apart, no evidence was led on behalf of the claimants-appellants that there was clear chance of advancement of the deceased victim in his career had he been alive. ( 5 ) ON the contrary, Mr. K. K. Das, learned Advocate upon reference to the decision of the Supreme Court reported in 2004 A. C. J. 448 (Asha and ors. v. United India Insurance Co.
( 5 ) ON the contrary, Mr. K. K. Das, learned Advocate upon reference to the decision of the Supreme Court reported in 2004 A. C. J. 448 (Asha and ors. v. United India Insurance Co. Ltd. and Anr.) contended that the claimants were entitled to be compensated for the loss suffered by them which is the amount they would have been receiving at the time when the deceased was alive. According to him, the claimants-appellants had the benefit of the net income of the deceased victim which he received upon deduction of Rs. 340/- in total because of deduction on account of General Provident Fund, group Insurance and Professional Tax. ( 6 ) WE have perused the aforesaid Supreme Court judgment and upon careful consideration of the same, we do not find the decision to be one on the issue laying down the proposition of law that in all cases all deductions made from the gross salary of the victim of which the victim would also have received benefit at the end of his service career, should necessarily be deducted for the computation of compensation. On the other hand, this Court in the decision reported in (2005)2 T. A. C. 22 (Cal) (Smt. Sahjahan Khatoon and Ors. v. National Insurance Co. Ltd. and Anr.) has held in paragraph 4 as under:"the Supreme Court in the decision reported in AIR 1994 SC 1613 (General Manager, Kerala State Road Transport Corporation, Trivandrumv. Mrs. Susamma Thomas and Ors.) has not only estimated the loss of dependency on the basis of the gross income of the victim but also by taking into account the possible factor of advancement in career of the victim in future had he been alive. The Supreme Court decision reported in (1996)4 scc 362 (U. P. State Road Transport Corporation and Ors. v. Trilok Chandra and ors.) is also on the same line. " ( 7 ) OUT of the deduction made from the gross salary of the victim, it appears that a sum of Rs. 300/- was deducted every month on account of general Provident Fund. It cannot be disputed that the victim would have received the said amount along with interest at the end of his service career or when needed had he been alive.
300/- was deducted every month on account of general Provident Fund. It cannot be disputed that the victim would have received the said amount along with interest at the end of his service career or when needed had he been alive. The above amount which was being deducted regularly from the salary of the deceased victim was for his beneficial enjoyment of the same at a later date and the claimants-appellants would have been the beneficiary of the same along with the deceased victim had he been alive. ( 8 ) WE, therefore, do no find any justification for deducting the said amount from the income of the deceased victim for the purpose of quantifying the compensation payable to the claimants-appellants. However, a sum of rs. 10/- on account of Group Insurance and the sum of Rs. 30/- on account of Professional Tax which were deducted from the monthly salary of the deceased victim ought to have been taken note of by the Claims Tribunal for the purpose of quantifying the compensation. We, therefore, determine the compensation by deducting a sum of Rs. 40/- from the gross salary of the deceased victim. ( 9 ) ON such basis, the annual income stands at Rs. 35,460/- upon making necessary deduction of 1/3rd of the sum on account of the personal expenses of the victim had he been alive. There is no dispute as to the application of multiplier of 17 in this case on the basis of the age of the victim on the date of accident. Therefore, the aforesaid amount of Rs. 35,460/- is to be multiplied with 17 and the total amount stands at Rs. 6,02,820/ -. To this amount, the claimants-appellants would further be entitled to a sum of rs. 9,500/- on account of loss of estate, funeral expenses and loss of consortium. The total amount of compensation would, therefore, stand at rs. 6,12,320/ -. ( 10 ) ADMITTEDLY, the claimants-appellants have received a sum of Rs. 5,00,000/- as awarded by the Claims Tribunal on 4th October, 2001. The claimants-appellants, therefore, would be entitled to receive the balance sum of Rs. 1,12,320/- which will carry an interest from the date of filing of the claim petition on 8th February, 2000 till payment of the above amount at the rate of 6% per annum.
5,00,000/- as awarded by the Claims Tribunal on 4th October, 2001. The claimants-appellants, therefore, would be entitled to receive the balance sum of Rs. 1,12,320/- which will carry an interest from the date of filing of the claim petition on 8th February, 2000 till payment of the above amount at the rate of 6% per annum. The respondent-Insurance Company is accordingly directed to make the payment of the above amount with interest as above by issuing Account Payee Cheque in favour of the claimant-appellant No. 1 and by depositing the same with the concerned Claims Tribunal within a period of six weeks from date. The impugned judgment and award is modified accordingly. ( 11 ) THE above appeal is thus disposed of. ( 12 ) THERE will be no order as to costs.