JUDGMENT : Jayant M. Patel, J. 1. The present appeal is directed against the judgment and award passed by the Tribunal dated 28-10-2008 in M.A.C.P. No. 155 of 2002, whereby the Tribunal has awarded compensation of Rs. 15,95,400/- with interest at the rate of 9% p.a. The short facts of the case are that on 16-1-2002, when the deceased Parshottambhai was going on his motor-cycle bearing No. GJ-3A-7016 from Upleta to Mekhatimbi and when he reached near Upleta Kharid Vehchan Sangh, one truck bearing No. GTB 4455 dashed with the motor-cycle of the deceased and the deceased sustained injuries and he died on the spot. The claim petition was filed for compensation of Rs. 30 lakhs by the dependent members of the family. It may be recorded that initially, the claim petition was filed by five claimants out of which claimant Nos. 1 to 3 were the wife of the deceased and son and daughter and claimant No. 4 and 5 were father and mother. Pending the petition, as the original claimant No. 4 had expired on 30-3-2002 and the mother had expired on 23-2-2007, by application, Exh. 19, it was declared that the original claimant No. 4 and 5 be deleted. Such was permitted by the Court. Consequently, the claim petition remained for only three claimants. The Tribunal, at the conclusion of the petition, passed the above-referred judgment and award. Under the circumstances, the present appeal before this Court. 2. We have heard Mr. Tushar Sheth, learned Counsel appearing for the appellant and Mr. Meena, learned Counsel appearing for the main contesting party-respondent No. 3. The other respondents are served but none appears on their behalf. 3. The learned Counsel for the appellants raised the first contention that the contributory negligence attributed by the Tribunal to the deceased at 18% for the accident is erroneous because the Tribunal did not appreciate the aspect that there was oral evidence of the eye-witness and the driver of the truck had not entered the witness box. It was submitted that under these circumstances, the Tribunal ought to have held the driver of the truck 100% negligent for the accident. 4. Whereas, Mr. It was submitted that under these circumstances, the Tribunal ought to have held the driver of the truck 100% negligent for the accident. 4. Whereas, Mr. Meena, learned Counsel for respondent No. 3, by supporting the order passed by the Tribunal, contended that the Tribunal has taken reasonable view of the matter on the basis of the evidence of the panchnama and the situation in which the accident had happened. He submitted that merely because the driver was not examined on behalf of the insured vehicle it cannot be said that the Tribunal had no power to attribute the contributory negligence even if there was appropriate evidence of other document. 5. The examination of the contention shows that the charge-sheet and the panchnama were produced in the evidence on behalf of the claimants through the deposition of Dakshaben Parshottambhai Dhami, Exh. 26. When the evidence was produced of charge-sheet and panchnama for the scene of incident, it would not lie in the mouth of the claimants to contend that the evidence produced of police papers of charge-sheet and panchnama and the F.I.R. should not have been considered by the Tribunal for attribution of contributory negligence. The panchnama shows that the scooter of the deceased was found near white strip which is on the centre of the road. The motor-cycle had jerk marks on the right side. The story narrated by the complainant is that the truck came from the front side and dashed with the motor-cycle resulting into the accident. If jerk is given by the truck to the motor-cycle on the right side, the motor-cycle may be thrown on the extreme left side of the road. In spite of that, the motor-cycle, as per the panchnama, even after the accident is found nearby the centre of the road nearing white strip on the center of the road. The accident has happened during day time in the morning 7-00 O'clock. Therefore, had the deceased driving the vehicle on the extreme left of the road, the chances of avoiding the accident could not be ruled out. But at the same time, more care was required to be taken on the part of the driver of the truck for the small vehicles being driven by the persons coming from the front side. Therefore, had the deceased driving the vehicle on the extreme left of the road, the chances of avoiding the accident could not be ruled out. But at the same time, more care was required to be taken on the part of the driver of the truck for the small vehicles being driven by the persons coming from the front side. Under these circumstances, the Tribunal has assessed the contributory negligence to the extent of 18% to the driver of motor-cycle, i.e., deceased and 82% to the driver of the truck. In our view, it cannot be said that the Tribunal has taken any unreasonable view, which may call for interference in exercise of the appellate power. 6. The attempt to contend that the oral evidence of eye-witness Chhagan Devraj should have been given more weightage as against the evidence of panchnama and F.I.R. cannot be countenanced for the simple reason that when the Tribunal has to form the opinion or make the assessment for contributory negligence, all evidences are to be considered. As against the oral evidence of Chhagan Devraj, the documentary evidence of F.I.R. filed by the very person Chhagan Devraj and the panchnama has been considered by the Tribunal. If oral evidence of Chhagan Devraj, P.W. 3, Exh. 57 is considered with F.I.R., there are material contradiction in the narration of the incident, more particularly on the aspect of overtaking, which is completely silent in the F.I.R. Under these circumstances, if the Tribunal after appreciation of the evidence has taken into consideration the panchnama prepared for the scene of the accident, it cannot be said that the oral evidence is only to be believed and the documentary evidence, which is produced by the claimants themselves ought to have been discarded. 7. The decision upon which the reliance has been placed by the learned Counsel for the appellants in the case of Syed Sadiq v. Divisional Manager, United India Ins. Co., reported at 2014 (1) SCALE 389 and the another decision of the Apex Court in the case of Jiju Kuruvila C. Kunjujamma Mohan, reported at 2013 (O) GLHEL-SC 54170 are of no help to the learned Counsel for the appellants since in none of such cases, the evidence was produced of the panchnama and the F.I.R. by the claimants themselves. Under these circumstances, both the decisions cannot be made available to the facts of the present case. 8. Under these circumstances, both the decisions cannot be made available to the facts of the present case. 8. The learned Counsel for the appellants next contended that the quantum awarded of the compensation by the Tribunal is on much lower side inasmuch as since the deceased was serving as a teacher and the evidence was there on record for much increase in the income, the prospective income ought to have been considered to the extent of 100%, whereas, the Tribunal has considered the prospective income by raising to 50%. He submitted that evidence of the calculation of the salary, had the deceased continued in service has not been properly considered by the Tribunal. The learned Counsel also submitted that the number of claimants in the initial stage were more than 3 and towards personal deduction, the Tribunal ought not have made deduction of 1/3rd and in his submission, as per the decision of the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, reported in 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)], 1/4th of the amount ought to have been deducted towards personal expenses. The learned Counsel also submitted that the Tribunal has awarded only Rs. 20,000/- towards loss of consortium and towards loss of estate, which is too meagre and as per the recent decision of the Apex Court, it should not be in any case less than Rs. 1 Lakh. He submitted that the compensation awarded by the Tribunal deserves to be enhanced. 9. Whereas, Mr. Meena, learned Counsel appearing for the respondent Insurance Company contended that the Tribunal has already considered 50% appreciation, which is more than what is observed by the Apex Court in the case of Sarla Verma, 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)] considering the age of the deceased at the time of the accident. He submitted that in any case as per the decision of the Apex Court in the case of Sarla Verma, 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)] the aspect of income tax liability by the deceased is totally lost sight of and is ignored. Therefore, appropriate deduction ought to have been considered by the Tribunal, if this Court is to examine the matter on just compensation. Therefore, appropriate deduction ought to have been considered by the Tribunal, if this Court is to examine the matter on just compensation. He also submitted that it is true that initially, the number of claimants were five, but when the claimants themselves deleted the claimant Nos. 4 and 5, it would mean that they abandoned the aspect of compensation for claimant Nos. 4 and 5. Hence, the compensation awarded by the Tribunal by deduction of 1/3rd of the amount towards personal expenses can be said as appropriate. In his submission, the Tribunal has properly assessed the compensation, but if any case is to be considered for enhancement, the deduction towards tax liability may also be considered by this Court, which has not been considered by the Tribunal. Mr. Meena submitted that the Tribunal has properly awarded the amount towards loss of consortium and estate and no enhancement may be made by this Court. 10. We may first consider the aspect for assessment of the income, including the prospective income by the Tribunal. The salary slip of the last month was produced on record and as per the said salary slip, the basic salary was of Rs. 8,500/-, Dearness Allowance was of Rs. 3,655/- and H.R.A was of Rs. 638/-, total Rs. 12,793/-. So far as the other amount of medical allowance of Rs. 100/- and Rs. 175/- for special allowance, no evidence was produced on behalf of the original claimants. Therefore, the last salary including D.A., and H.R.A., can be considered at Rs. 12,793/- and if rounded off, it can be said as Rs. 12,800/-. 11. On behalf of the claimants, evidence was produced of one Mr. Parshotam Ravji Vekaria (Exh. 47), who was co-employee, working as clerk in the school and the estimated salary, had the deceased continued in service, was produced. As per the said evidence, it was suggested that had the deceased continued in service, the salary would be of Rs. 30,267/-. But the relevant aspect is that the calculation is stated to have been made by including Rs. 10,750/- as basic salary, Rs. 5,375/- as Dearness Salary and Rs. 13,061/- as D.A., Rs. 806/- as H.R.A., Rs. 100/- as medical allowance and Rs. 175/- as other allowances. No explanation has been submitted about Dearness Salary. Even medical allowance of Rs. 100/- and special allowance of Rs. 175/-, in our view, would not be available. 10,750/- as basic salary, Rs. 5,375/- as Dearness Salary and Rs. 13,061/- as D.A., Rs. 806/- as H.R.A., Rs. 100/- as medical allowance and Rs. 175/- as other allowances. No explanation has been submitted about Dearness Salary. Even medical allowance of Rs. 100/- and special allowance of Rs. 175/-, in our view, would not be available. No explanation has been given for the so-called Dearness Salary. As such, for the purpose of salary and the allowance, basic salary, D.A., and H.R.A., can be considered. The basic salary was stated as Rs. 10,750/-. D.A., was not properly calculated because, while calculating the D.A., it was shown as 130% D.A., which prima facie, is unbelievable. Under these circumstances, we find that no reliance can be placed upon the exaggerated figure of the salary, which the deceased would have got, had he continued in service. Further, the aspect of risk of continuity in service, including that of the chances of promotion, risk hazard, etc., are not considered. Under these circumstances, we find that the approach of the Tribunal was correct in not relying upon those documents produced for the purpose of consideration of the prospective income. As per the decision of the Apex Court in the case of Sarla Verma, 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)], the highest prospective income is considered as that of 50%. The Tribunal has gone by the same approach. The only error appears to be on the part of the Tribunal is excluding the amount of H.R.A. Under these circumstances, if the 50% is added to the aforesaid income of Rs. 12,800/-, it would come to Rs. 19,200/- per month. Such, in our view, would be the appropriate assessment for the income of the deceased, including the prospective income per month. 12. The Tribunal has deducted 1/3rd amount towards personal expenses, whereas the contention of the learned Counsel for the appellants was that as the number of claimants were five, it would have been 1/4th as per the decision of the Apex Court in the case of Sarla Verma, 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)]. 13. Had it been a case where also the original claimants maintained the claim either themselves or after the death, through the legal representatives of the deceased claimants, it might stand on a different footing and different consideration. 13. Had it been a case where also the original claimants maintained the claim either themselves or after the death, through the legal representatives of the deceased claimants, it might stand on a different footing and different consideration. However, it appears that since the two claimants, mother and father of the deceased had expired, the rest of the claimants did not continue the claim for those claimants and prayed for deletion. Therefore, we find that the claim for the father and mother, who were claimants, could be said as abandoned by the person concerned. Once it was abandoned, the claim petition remained for only three persons; wife, one son and one daughter. Even as per the decision of the Apex Court, if the number of claimants were less than 3, 1/3rd amount should have been deducted towards personal expenses. Accordingly, 1/3rd would be Rs. 6,400/- and if deducted from Rs. 19,200/-, the net amount would come to Rs. 12,800/- per month towards dependency benefits and per year, such amount would come to Rs. 1,53,600/-. 14. The deceased was aged 48 years and as per the decision of the Apex Court in the case of Sarla Verma, 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)], the appropriate multiplier would be 13, which has been applied by the Tribunal and if the multiplier of 13 is applied, the economic loss can be assessed at Rs. 19,96,800/-. 15. The Tribunal has lost sight of the important aspect that no deduction is considered towards income tax liability. The tax rate prevailing in the year 2002-2003 was 20% on the amount exceeding Rs. 60,000/-, since the exemption limit was Rs. 60,000/-. If the exact limit is considered as that of Rs. 1,53,600/-, the tax would be approximately Rs. 20,000/-, but while computing the tax, we need to keep in mind two aspects; one is that if the investments are made by the concerned person to take benefit of tax, on such investments, benefits under Sec. 80C would be available. Further, after 2002, taxable slabs has substantially gone down. Hence, we find it appropriate to consider the deduction at the rate of Rs. 10,000/- per year. If considered with the multiplier of 13, it would be Rs. 1,30,000/- towards tax liability. Hence, out of the aforesaid amount of Rs. 19,96,800/-, Rs. 1,30,000/- would be required to be deducted towards income tax liability. Hence, we find it appropriate to consider the deduction at the rate of Rs. 10,000/- per year. If considered with the multiplier of 13, it would be Rs. 1,30,000/- towards tax liability. Hence, out of the aforesaid amount of Rs. 19,96,800/-, Rs. 1,30,000/- would be required to be deducted towards income tax liability. Hence, the net amount would come to Rs. 18,66,800/-. Out of the said amount, the Tribunal has considered 82% as liability of the driver of the truck for contributory negligence. Hence, 82% of the said amount would come to Rs. 15,30,776/- towards as compensation towards economic loss. 16. Mr. Sheth, learned Counsel appearing for the appellants, by relying upon the decision of the Apex Court in the case of Vimal Kanwar v. Kishore Dan, reported in 2013 (7) SCC 476 contended that when in the last salary slip, which was produced on record, nothing was shown towards income tax deduction, it would be presumed that the income tax is already deducted or the employer has already paid the tax, and therefore, the net amount should be considered and no deduction should be made towards taxable liability as held by the Apex Court in the case of Sarla Verma, 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)]. 17. Whereas, Mr. Meena, learned Counsel for the main contesting Insurance Company, by relying upon the another decision of the Apex Court in the case of Kala Devi v. Bhagwan Das Chauhan, reported in 2014 (8) Supreme 474 contended that in the case of the person, who had expired in the year 2003, where the income was considered as that of Rs. 9,000/- per month, annually Rs. 1,08,000/-, the Supreme Court has considered the deduction towards income tax liability of 20%, and therefore, he submitted that the deduction should be on the flat rate and not minus the exemption limit available under the Income Tax Act. 18. In the decision of the Apex Court in the case of Vimal Kanwar 2013 (7) SCC 476 , the Apex Court had no occasion to consider the aspect about the tax planning available to the employee concerned at the time when the deduction is to be made by the employer from the salary. When to deduct, how to deduct are the options available to the employee. When to deduct, how to deduct are the options available to the employee. In any case, the liability to pay Income Tax is upon the employee, though the deduction is to be made by the employer as desired by the employee or as per the tax planning submitted by the employee. Hence, the said decision cannot be made applicable to the facts of the present case. Similarly, in the case of Kala Devi, 2014 (8) Supreme 474 , the Apex Court had no occasion to examine the aspect of exemption limit available to the person concerned under the Income Tax Act and it is only thereafter, the taxable income would start for the purpose of tax liability with the option available to the person concerned to get the benefits under Income Tax Act by making investment under Sec. 80C of the Act etc. Hence, we find that such decision is also of no help to the respondent Insurance Company. 19. Under these circumstances, the compensation awarded by the Tribunal towards economic loss would be required to be modified. 20. There is considerable substance in the contention of the learned Counsel for the claimants that the amount award towards loss of estate and loss of consortium of Rs. 20,000/- is on a much lower side. The reliance was placed upon the decision of the Apex Court in the case of Jiju Kuruvila v. Kunjujamma Mohan with Oriental Insurance Co. Ltd. v. Chinnamma Joy, reported in 2013 (9) SCC 166 and in the case of Vimal Kanwar, 2013 (7) SCC 476 , recent decision of the Apex Court in the case of Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar, reported in 2015 (2) SCALE 172 and also the decision of the Apex Court in the case of Rajesh v. Rajbir Singh, reported in 2013 (9) SCC 54 . 21. We may record that the Division Bench of this Court in the case of National Insurance Co. 21. We may record that the Division Bench of this Court in the case of National Insurance Co. v. Gordhanbhai Damjibhai Nakum in First Appeal No. 3894 of 2006 decided on 14-10-2014 had an occasion to consider the decision of the Apex Court in the case of Rajesh v. Rajbir Singh, 2013 (9) SCC 54 , as well as Vimal Kanwar, 2013 (7) SCC 476 , and Sonabanu Nazirbhai Mirza v. Ahmedabad Municipal Transport Service, reported in 2013 ACJ 2733 and the other decision of the Apex Court in the case of Minu Rout v. Satya Pradhymna Mohapatra, reported in 2013 (10) SCC 695 . After considering the above-referred decisions, this Court found it appropriate to award the sum of Rs. 1,00,000/- towards compounded head of loss of consortium and loss of love and affection as against Rs. 20,000/- as awarded by the Tribunal. The amount of funeral expenses of Rs. 2,000/-, in our view, is much a lower amount, and therefore, appropriate amount would be Rs. 10,000/- towards funeral expenses. 22. In view of the aforesaid observations and discussion, the claimants would be entitled to the compensation of Rs. 15,30,776/- towards economic loss plus Rs. 1,00,000/- towards loss of consortium and loss of love and affection plus Rs. 10,000/- towards funeral expenses, total amount would come to Rs. 16,40,776/- and not the amount of Rs. 15,90,400/- as awarded by the Tribunal. 23. Under these circumstances, the award passed by the Tribunal deserves to be modified to the aforesaid extent. 24. In view of the aforesaid observations and discussions, it is held that the original claimants would be entitled to the amount of compensation of Rs. 16,40,776/- with interest at the rate of 9% per annum as awarded by the Tribunal from the date of application until the amount is actually paid or if deposited with the Tribunal with accrued interest thereof. 25. The appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs. R. & P. be sent back to the Tribunal.