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2014 DIGILAW 1603 (ALL)

Pramila Devi v. Ram Bali

2014-05-15

DINESH GUPTA, RAJES KUMAR

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JUDGMENT Rajes Kumar and Dinesh Gupta,JJ. This is an appeal under Section 173 of Motor Vehicle Act against the order of the Tribunal dated 23.8.2006 filed by the claimant by which the tribunal has awarded a sum of Rs.2,58,920/- towards compensation. 2. The appeal is for the enhancement of the compensation. 3. Heard Sri Vidya Kant Shukla, learned counsel for the appellant and Sri Pankaj Rai, learned counsel appearing on behalf of the respondent no.2. 4. Learned counsel for the appellant submitted that the Tribunal has erred in arriving at the conclusion that there was the contributory negligence both on part of the deceased and on part of the driver of the motor cycle and held that both were equally responsible for the accident. He submitted that the accident has been fully caused on account of the rash and negligent driving by the driver of the Motor cycle. He further submitted that he was the employee in Arms Factory and his total salary was Rs.12,113/- out of which a sum of Rs.6308/- has been deducted by the employer and a net amount payable was Rs.5805/-. The tribunal has erred in taking the net amount of salary Rs.5805/- for the purposes of computation while the gross amount should be adopted. 5. In support of his contention he relied upon decision of the Apex Court in the case of National Insurance Company Ltd. Vs. Indra Srivastava 2008(1) TAC 424 which has been subsequently followed in the recent decision by the Apex Court in the case of Kalpanaraj and others Vs. Tamil Nadu State Transport Corporation reported in 2014 HTPL (301) HC decided on 24.4.2014, he further relied upon decision of the Apex Court in the case Manasvi Jain V Delhi Transport Corporation 2014 STPL(web) 310 SC. 6. Learned counsel for the respondent submitted that infact the entire mistake was on the part of the deceased Satrughan Sharma. The deceased was on cycle. He was coming from his left side to right side. The motor cycle was coming towards its left side. Satrughan Sharma was coming from left side towards right side which is the wrong side, he should be more cautious while turning towards right side. Therefore, the tribunal has rightly held equally responsible to deceased as well as the driver of the motor cycle. 7. We have perused the record. The motor cycle was coming towards its left side. Satrughan Sharma was coming from left side towards right side which is the wrong side, he should be more cautious while turning towards right side. Therefore, the tribunal has rightly held equally responsible to deceased as well as the driver of the motor cycle. 7. We have perused the record. So far as the contributory negligence is concerned, we do not find any error in the order of the tribunal. 8. From a perusal of the road map, and site plan which has been relied upon by the tribunal, it is apparent that the accident took place on the middle of the road. The deceased was in cycle and was coming from the left side towards right side i.e. towards wrong side. The motor cycle was coming on his left side. When the deceased was coming from left side to right side i.e. towards wrong side he should be more cautious and vigilant. From the statement of Ram Bali, the driver of the motor cycle it is established that he was driving the motor cycle on a speed of 35 k.m. per hour and he tried his best to avoid the accident by putting the break since the deceased was coming towards wrong side and hit the motor cycle, the accident has been caused. 9. On the facts and circumstances, we are of the view that tribunal has rightly arrived at the conclusion that accident has caused due to the negligence of the driver of the motor cycle as well as the deceased. 10. Coming to the second point, namely, computation of the compensation taking the net salary of Rs.5805/- we find substance in the argument of learned counsel for the appellant. 11. The salary slip which is at page 29 of the paper book shows that total gross income was Rs.12,140/- out of which a sum of Rs.6308/- has been deducted. It also appears that the total income of Rs.12,113/- includes various allowances, namely, bonus, risk allowance over time bonus, C.C.A. etc. 12. It is not clear that under which head the deduction has been made. Therefore, no firm opinion can be formed at this stage. 13. It is true that for the purposes of the compensation the gross income should be taken. 12. It is not clear that under which head the deduction has been made. Therefore, no firm opinion can be formed at this stage. 13. It is true that for the purposes of the compensation the gross income should be taken. The deduction of only those amount should be made which the dependents were not entitled to enjoy and avail the benefit. The deduction which was in the nature of the investment or the saving could not be deducted for the purposes of the computation. Therefore, we are of the view that let the matter be relegated to the tribunal to decide this issue in the light of the decision of the Apex Court in the case of National Insurance Company Vs. Indira Srivastava (supra) and which has been followed by the Supreme Court in a recent decision in the case of Kalpanaraj Vs. Tamil Nadu State Transport Corporation 2014 STPL(web)301 SC and Manasvi Jain Vs. Delhi Transport Corporation 2014 STPL(web) 310 SC. 15. He further submitted that total number of dependents are 5, and, therefore, in view of the decision of the Apex Court in the case of Smt. Sarla Verma (supra) the deduction towards personal expenses should be 1/4 while the tribunal deducted 1/3. 15. We find substance in the argument of learned counsel for the appellant that the deduction towards personal expenses should be 1/4 in view of the decision of the Apex Court in the case of Smt. Sarla Verma. 16. In the result the appeal is allowed in part, matter is relegated to the tribunal to reconsider the income of the deceased for the purpose of the computation of the compensation. 17. The Tribunal is further directed to decide the matter within a period of six months from the date of the presentation of the certified copy of this order after giving proper opportunity of hearing to all concerned parties. 18. Office is directed to remit the record of the case to the concerned Tribunal within a period of four weeks.