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2014 DIGILAW 379 (CAL)

Pramila Adhikari v. National Insurance Co. Ltd.

2014-04-24

INDIRA BANERJEE, SAHIDULLAH MUNSHI

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JUDGMENT : This appeal, filed by the appellants/claimants, is against a Judgment and Award dated 27th August, 2012 passed by the Motor Accident Claim Tribunal, 4th Court, Jalpaiguri in a claim application under Section 166 of the Motor Vehicles Act, 1988 being M.A.C. Case 76 of 2011. By the judgement and award under appeal, the learned Tribunal awarded total compensation of Rs.16,88,064/- on account of the death of the victim Dayanidhi Adhikari, who was killed in an accident involving vehicle no. WB-74-M-0349 owned by the respondent no. 2 (Aninda Chakraborty) and covered by a policy of insurance issued by the respondent no.1, the National Insurance Company Limited (hereinafter referred to as the “Respondent/Insurer”). 2. The claimants, five in number are the wife, mother and three unmarried daughters of the deceased victim, who, it is claimed, were totally dependent on the victim. 3. In course of the proceedings in the learned Tribunal three witnesses were examined on behalf of the claimants and one witness was examined on behalf of the respondent/insurer namely the driver of the vehicle, who deposed that the accident was not due to the fault of the offending vehicle but due to the fault of the bike. The learned Tribunal on analyzing the evidence found that the driver of the offending vehicle was plying the vehicle rashly and negligently for which the accident took place and the offending vehicle was at the time of accident covered a valid insurance policy, particulars of which have been noted in the judgment and award under appeal. 4. From the evidence it transpired that the victim was over 55 years of age, his date of birth as per his admit card issued by the West Bengal Board of Secondary Education being 25th January, 1956. It further transpired from the evidence that the victim was a teacher of Coochbehar Ucchamadhyamik Vidyalaya drawing salary of Rs.38,476/- per month at the relevant time. A salary certificate issued by the headmaster was relied upon by the learned Tribunal. The learned Tribunal on examining the acquittance role and other relevant documents arrived at the conclusion that the victim received net salary of Rs.26,376/- and accordingly computed compensation taking the salary of the victim to be Rs.24,340/- per month. A salary certificate issued by the headmaster was relied upon by the learned Tribunal. The learned Tribunal on examining the acquittance role and other relevant documents arrived at the conclusion that the victim received net salary of Rs.26,376/- and accordingly computed compensation taking the salary of the victim to be Rs.24,340/- per month. The salary statement indicates that the victim drew basic pay of Rs.25,450, Dearness Allowance of Rs.8,908/-, H.R.A. of Rs.3,818/- and Medical Allowance of Rs.300/- totaling Rs.38,476/- from which Rs.8,000/- was deducted towards Provident Fund, Rs.150/- towards Professional Tax, Rs.1,000/- towards Income Tax, Rs.2,449.60 p. towards L. I. Premium and Rs.500/- towards recovery of Puja Advance was deducted. After the deduction the net pay for the month of January 2011 was Rs.26,376.60 p. 5. While the learned Tribunal was fully justified in deducting from the gross salary, the amount of income tax and professional tax paid by the victim, we are of the view that the learned Tribunal was not justified in deducting the provident fund and puja advance recovery, since puja advance must have been spent for the family including the dependants and the provident fund contribution constituted savings meant for the family including the future of the unmarried daughters. In this context, it may perhaps be pertinent to refer to the observation of the Supreme Court in Reshma Kumari and others Vs. Madan Mohan and another reported in (2013) 9 SCC 65 that the proportion of a man’s net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. Provident Fund contribution tantamount to his savings and the puja advance of which recovery was made are part of his expenditure for his family. Of course statutory deductions would necessarily have to be deducted since the same could not have been used for the up-keep of the family and the family could not have spent the amount. 6. The learned Tribunal found that the age of the victim was 55 plus and accordingly applied the multiplier specified in the second schedule applicable to the age group 55-60 i.e. multiplier 8. It however, appears that the learned Tribunal did not consider the judgement of the Supreme Court in Sarla Verma (Smt.) & Ors. Vs. 6. The learned Tribunal found that the age of the victim was 55 plus and accordingly applied the multiplier specified in the second schedule applicable to the age group 55-60 i.e. multiplier 8. It however, appears that the learned Tribunal did not consider the judgement of the Supreme Court in Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation and another reported in (2009) 3 WBLR (SC) 700, where the Supreme Court pointed out that there was an error in the multiplication. Since the multiplier has been applied as per the schedule. We do not wish to interfere with the multiplier. 7. There is however, substance in the contention that lessor amount may be deducted towards personal expenses since there were five dependants of the victim. In view of the judgment of the Supreme Court in Sarla Verma (Smt.) and others (supra) as approved by a three judge Bench of the Supreme Court in Reshma Kumari and others Vs. Madan Mohan and another reported in (2013) 9 Supreme Court Cases 65, the deduction should be 1/4th in case there were 4 to 6 dependants. The judgment and award under appeal is, thus, modified to the extent indicated herein below : Monthly salary Rs.38,476/- Less: Income Tax & Professional Tax Rs. 1,150/- Rs.37,326/- x 12 Rs.4,47,912/- Less: 1/4th of the personal Expenses Rs.1,11,978/- Rs.3,35,934/- Multiplier 8 (i.e. Rs.3,35,934/- x 8) Rs.26,87,472/- Add : Loss of estate & funeral Expenses Rs. 4,500/- Add: Loss of consortium payable to the respondent/claimant No.1 Rs. 5,000/- Rs.26,96,972/- Less: Awarded amount paid in Tribunal Rs.16,95,564/- Rs.10,01,408/- 8. The Award shall carry interest at the rate of 8% per annum as directed by the learned Tribunal, but from the date of the application till full liquidation of the awarded amount calculated as per reducing balance. 9. The respondent/insurer shall deposit the balance amount including balance interest with the Tribunal within four weeks from the date of receipt of certified copy of this order. 10. Learned Counsel appearing on behalf of the appellants/claimants submits that during the pendency of the appeal, the appellant no.2 being the mother of the victim died and the appellants/claimants have filed an application for substitution being C.A.N. 3538 of 2014. The same is treated as on day’s list. 11. 10. Learned Counsel appearing on behalf of the appellants/claimants submits that during the pendency of the appeal, the appellant no.2 being the mother of the victim died and the appellants/claimants have filed an application for substitution being C.A.N. 3538 of 2014. The same is treated as on day’s list. 11. The death is recorded and it is directed that the compensation amount less the amount of Rs.5,000/- towards consortium shall be divided equally amongst the rest of the claimants and the claimant no.1 shall be entitled to an additional Rs.5,000/- towards loss of consortium. 12. The judgment and award under appeal is modified to the extent indicated above. The appeal and the application for substitution are, thus, disposed of. 13. Urgent certified photostat copy of this order, if applied for, be supplied to the learned Advocates appearing for the parties, subject to compliance with all requisite formalities.