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2014 DIGILAW 2588 (ALL)

NATIONAL INSURANCE COMPANY LIMITED v. PUSHPA DEVI

2014-08-25

OM PRAKASH, RAJES KUMAR

body2014
JUDGMENT By the Court.—This is an appeal under Section 173 of the Motor Vehicles Act, 1988, against the order of Tribunal dated 23.4.2014, by which Tribunal has awarded a sum of Rs. 26,55,088/- towards compensation. 2. The appellant is the insurer of Tata Sumo, bearing registration No. UP-81-J-5163. 3. Brief facts stated in the impugned order are that on 19.11.2009 at 6.15 p.m. when the deceased was going to Telephone Exchange, Makhaina, near village Amarpur at Kibai-Anoopshahar Road, near village Amarpur, said Tata Sumo being driven rashly and negligently hit the bhaisa-buggi. As a result of hitting the bhaisa-buggi, Tata Sumo became disbalance and hit the motor-cycle, bearing registration No. UP-13-D-8026, which was being driven by the deceased, Pooran Singh and thereafter, again hit one, Hariom, who was going on cycle, causing grievous injuries to Pooran Singh, who died on the spot. The claim petition has been filed by the legal representative of the deceased, Pooran Singh. At the time of accident, deceased, Pooran Singh was 43 years old and was working as Telecom Mechanic in Bharat Sanchar Nigam Limited. He was a permanent employee and his age of superannuation was 60 years. As per the income certificate, filed by the claimants, deceased Pooran Singh was getting the basic pay Rs. 13,800/-, DA Rs. 3,491/-, HRA Rs. 1,380/- In this way, the deceased was getting a sum of Rs. 18,671/- per month. Tribunal on the basis of evidence on record and the statement of witness arrived to the conclusion that the accident has been caused solely on account of the negligence of the driver of the Tata Sumo. Tribunal on the basis of the salary certificate has taken the monthly income at Rs. 18,670/- and after adding 25% towards future prospect, in view of the Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011. Having regard to the age of the deceased being 43 years and after deducting 1/3rd towards personal expenses and applying the multiplier of 14, estimated the compensation at Rs. 26,55,088/-. Tribunal under the aforesaid Rules, 2011 awarded the loss of estate at Rs. 10,000/-, consortium at Rs. 10,000/- and towards loss of love and affection at Rs. 15,000/- and funeral expenses at Rs. 5,000/-. 4. 26,55,088/-. Tribunal under the aforesaid Rules, 2011 awarded the loss of estate at Rs. 10,000/-, consortium at Rs. 10,000/- and towards loss of love and affection at Rs. 15,000/- and funeral expenses at Rs. 5,000/-. 4. Learned counsel for the appellant submitted that there was head-on collision between Tata Sumo and motor-cycle as is apparent from the site plan, annexure-5 to the affidavit, therefore, to some extent Tribunal should have assessed some negligence on the part of the deceased also, who was driving the motor-cycle. Reliance has been placed on the decision of the Apex Court in the case of Bijoy Kumar Dugar v. Bidyadhar Dutta and others, 2006(1) TAC 969. He submitted that HRA should not be treated as income and no deduction towards income tax has been allowed. He further submitted that on the death of the deceased, the dependent have been given compassionate appointment and the wife is getting family pension. Therefore, the amount of family pension is liable to be deducted and to that extent there cannot be loss of income. 5. We do not find substance in the argument of learned counsel for the appellant. We have perused the impugned order and site plan. It is not a case of head-on collision. It is the case where Tata Sumo firstly hit the bhaisa-buggi as a result of which became disbalance and, thereafter, has gone to its right side and hit the motor-cycle being driven by the deceased, Pooran Sigh, who was coming towards his left side. The accident has been caused because Tata Sumo became disbalance and the driver lost his control over the vehicle. The velocity and the speed of Tata Sumo appears to be very high for the reasons that first of all it hit the bhaisa-buggi, thereafter, the motor-cycle and then to cyclist and further hit the tree. This situation can only arise when the Tata Sumo must have been running in very high speed and after hitting the bhaisa-buggi the driver of Tata Sumo was not able to control the vehicle. In such a situation, it could not be expected from the deceased, Pooran Singh driver of the motor-cycle to pre-assess the movement of the Tata Sumo, coming towards right side and the deceased could not get the opportunity to avoid the accident. It appears that everything happened spontaneously and deceased could not get opportunity to escape himself from the accident. In such a situation, it could not be expected from the deceased, Pooran Singh driver of the motor-cycle to pre-assess the movement of the Tata Sumo, coming towards right side and the deceased could not get the opportunity to avoid the accident. It appears that everything happened spontaneously and deceased could not get opportunity to escape himself from the accident. In the circumstances, on the facts and circumstances, we are of the view that Tribunal has rightly concluded that the accident has been caused due to sole negligence of the driver of the Tata Sumo and there was no negligence on the part of the deceased. The decision of the Apex Court in the case of Bijoy Kumar Dugar v. Bidyadhar Dutta and others (Supra) was based on its own facts where there was a head-on collision and it was found that Maruti Car should also made effort to avoid the accident. Such situation is not available in the present case. Therefore, the decision of the Apex Court in the case of Bijoy Kumar Dugar v. Bidyadhar Dutta and others (Supra) is not applicable and is clearly distinguishable. 6. In the case of Sunil Sharma v. Bachitar Singh, 2011 (4) JT 232 , Apex Court held that the amount of HRA, CCA, EPF and GIS should not be deducted from gross income for the calculation of the income. Therefore, the submission of learned counsel for the appellant that HRA should be deducted, has no substance. 7. Now coming to the submission that the amount of income tax should be deducted. 8. So far as legal position is concerned, there is no dispute that the income tax ought to have been deducted but in the present case, there is no evidence that on the income of the deceased, there was any income tax liability. The appellant is not able to demonstrate that any amount has been deducted towards income tax or there was any income tax liability. In the absence of any evidence on record, we are not able to accept the contention of learned counsel for the appellant. 9. The appellant is not able to demonstrate that any amount has been deducted towards income tax or there was any income tax liability. In the absence of any evidence on record, we are not able to accept the contention of learned counsel for the appellant. 9. So far as submission of learned counsel for the appellant that since after the death of the deceased, legal representative of the deceased has been given the compassionate appointment and the wife is getting the family pension, therefore, to that extent, amount of compensation and loss of dependency should be reduced, has no substance. 10. Apex Court in the case of Vimal Kanwar and others v. Kishore Dan and others, (2013) 7 SCC 476 , Apex Court held as follows: “The second issue is “whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles act to be termed as ‘pecuniary advantage’ liable for deduction”. “Compassionate appointment” can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one’s death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as “pecuniary advantage” that comes under the periphery of the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles act. “ 11. “ 11. In the case of Helen C.Rebello v. Maharashtra, S.R.T.C. 1999 (1) SCC 90 , Apex Court has observed that the family pension is also earned by an employee for the benefit of his family in the form of his contribution in service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. There is no co-relation between the two. 12. Following the aforesaid decision, the Division Bench of this Court in First Appeal From Order No. 84 of 1998, Sharad Kumar Singh and others v. Kanhaiya Lal Mishra and others, decided on 24.8.2012 and in First Appeal From Order No. 2292 of 2012, United India Insurance Co. Ltd. v. Smt. Rajni Kumari and others, decided on 30.5.2012 and in First Appeal From Order No. 2646 of 2012, The New India Assurance Co. Ltd. v. Smt. Roop Tiwari and others, decided on 6.7.2012 has held that the family pension after the death of the deceased is not liable to be deducted for the computation of the income. 13. We do not find any merit in the present appeal, which requires interference by this Court. The appeal fails and is, accordingly, dismissed. Office is directed to remit back the statutory amount to the concerned Tribunal within a period of four weeks. ————