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2006 DIGILAW 1046 (AP)

National Insurance Company Ltd. , rep. by its Branch Manager, Adilabad v. Mittapalli Sundaramma

2006-08-31

L.NARASIMHA REDDY

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JUDGMENT The correctness of the order, dated 14-10-2005, passed in a.p.No.987 of2002 by the Motor Accidents Claims Tribunal-cum-District Judge, Adilabad, is assailed in both the appeals. 2. While C.M.A. (SR) No. 10283 of 2006 (CMA 1877/2006) is filed by the insurer, the other is filed by the claimants. 3. For the sake of convenience, the parties herein are referred to as arrayed in the O.P. 4. The claimants filed the O.P., stating that Mittapalli Yerraiah, the husband of the 1st claimant and father of claimants 2 to 7, was coming from Talamadugu to Adilabad, in a jeep bearing No.AP.1.T.5694, owned by the 1st respondent and insured with the 2nd respondent and that due to rash and negligent driving of vehicle, it turned turtle. Yerraiah is said to have received injuries to various parts of the body and that he was shifted initially to Government Hospital, Adilabad and thereafter, to Nagpur. He is said to have died while undergoing treatment. It was alleged that the deceased was aged 48 years and was employed as Fieldsman in Fisheries Department with a salary of Rs.6,010/-, per month. They claimed a sum of Rs.7,00,000/, as compensation. 5. The 1st respondent remained ex parte. The claim was opposed by the insurer-2nd respondent alone. It denied all the material allegations pleaded in the O.P. 6. On behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A-1 to A-6 were marked. No oral or documentary evidence was adduced on behalf of the respondents. Through the order under appeal, the Tribunal awarded a sum of Rs.4,33,104/-, as compensation and apportioned the same among the claimants. 7. While the claimants seek enhancement of compensation, the 2nd respondent questions the order passed by the Tribunal. 8. Sri Naresh Byrapaneni, learned counsel for the 2nd respondent-insurer, submits that the Tribunal committed an error in taking the gross salary, instead of net salary, of the deceased as the basis for calculating the contribution of the deceased to the family. Placing reliance upon the judgment rendered by the Supreme Court, he contends that the net salary, which was shown at Rs.3,650/-, per month, ought to have taken as the basis. 9. Placing reliance upon the judgment rendered by the Supreme Court, he contends that the net salary, which was shown at Rs.3,650/-, per month, ought to have taken as the basis. 9. Sri S. Chandra Sekhar, learned counsel for the respondents-claimants, on the other hand, submits that the Tribunal ought to have applied a higher multiplier, instead of 8.5, having regard to the age of the deceased and prays for enhancement of the compensation. 10. The occurrence of the accident is not disputed and the 2nd respondent does not seriously assail the finding recorded by the Tribunal that the accident occurred on account of rash and negligent driving on the part of the driver of the jeep. The existence of insurance policy is admitted. The 2nd respondent objects to the adoption of the gross salary, as the basis. The claimants on the other hand insist that a higher multiplier ought to have been applied. . 11. The salary certificate of the deceased was marked as EX.A-6. According to this, the gross salary of the deceased was Rs. 6,01 a/per month. Several deductions were effected from the salary, and ultimately, the net salary was shown as Rs.3,650/-. It is true that as per the judgment of the Supreme Court in Asha v. United India Insurance Co. Ltd.1, the net salary and not the gross salary of the deceased must be taken into account. However, neither the Motor Vehicles Act, nor the decided cases throw any light on the question as to what should be treated as net salary and to what extent the deductions can be made. It is not uncommon that employees draw various categories of advances, for house building, festivals, education of children etc., depending upon the necessities. Correspondingly, deductions are made from the salary. In certain cases, even though the gross salary would be running into thousands, the net salary may be in hundreds, on account of deductions. Instances also are not lacking where deductions are made on account of attachment in the Court proceedings. If one is to be guided exclusively by the net salary drawn by the employee, gross injustice would be caused, in cases where heavy deductions are being made, at the relevant point of time. This Court is of the view that the net salary must be taken as the one, which is arrived at, after making statutory deductions, such as, provident fund, insurance etc. This Court is of the view that the net salary must be taken as the one, which is arrived at, after making statutory deductions, such as, provident fund, insurance etc. Deductions effected for recovery of loans and advances must be ignored in this context. 12. In the instant case, a sum of Rs. 1,250/-, per month, was being deducted from the salary of the deceased towards repayment of loans of different categories. Therefore, the same cannot be taken into account, while arriving at the net salary. If the amounts deducted towards recovery of loans are ignored, the net salary of the deceased would come to Rs.4,900/-, per month, and the same deserves to be taken into account, for the purpose of calculating the contribution of the deceased to the family. The Tribunal was not correct when it took the entire gross salary i.e., 6,010/- as the basis for this purpose. One third of the net salary must be deducted towards his personal expenses. Therefore, the order passed by the Tribunal needs to be corrected, by substituting the figure Rs.4,900/- for the one RS.6,010/-. The method of calculation including the deduction of one third and application of multiplier shall remain the same. Another area where the correction is required is that only a sum of Rs.10,000/- was awarded t9wards loss of consortium and the same needs to be enhanced to Rs.15,000/-. 13. The appeals are accordingly disposed of with the above directions. Except to the extent indicated above, the order passed by the Court below shall remain in tact, in all other respects. There shall be no order as to costs.