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2020 DIGILAW 392 (JK)

United India Insurance Co. Ltd v. Sameena Kouser

2020-08-17

SANJEEV KUMAR

body2020
JUDGMENT This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the “Act”) filed by the United India Insurance Co. Ltd. (hereinafter referred to as the “insurer”) is directed against the award dated 10.07.2019 passed by the Motor Accident Claims Tribunal, Rajouri (hereinafter referred to as the “Tribunal”) in file No. 49/claim titled “Sameena Kouser v. Anjum Javaid and others” whereby the insurer has been directed to pay an amount of Rs. 81,99,168/-along with pendente lite and future interest @ 7.5% per annum to respondent Nos. 1 to 5 (claimants for short) 2. The impugned award has been assailed by the insurer only on the ground of quantum. It is argued that the Tribunal has committed serious error in computing the compensation payable to the claimants. 3. Mr. Sanjay K. Dhar, learned counsel appearing for the insurer urges that the Tribunal did not deduct income tax from the annual income of the deceased and, thus, passed the impugned award which is exorbitant and excessive. It is also submitted that the Tribunal did not take into account the fact that the claimants were entitled to financial assistance as well as compassionate appointment in terms of SRO 43 of 1994, in that, the claimants were entitled to full salary of the deceased for a period of seven years and thereafter the family pension. All these sums received or receivable by the claimants were liable to be deducted from the annual income of the deceased, but the Tribunal clearly lost sight of this aspect of the matter and granted compensation which is unjustly exorbitant and much on higher side. 4. On the other hand, learned counsel for the claimants, who has also filed cross objections seeking enhancement of the compensation awarded by the Tribunal submits that that the amount of compensation of Rs. 81,99,168/- which has been awarded is on the lower side. It is submitted that the monthly income of the deceased has been proved to be Rs. 41,569/-, whereas the Tribunal has wrongly taken the monthly income of deceased as Rs. 37635/- and, therefore, the same is required to be corrected accordingly. It is further submitted that claimant No.1 being wife, petitioner Nos.2 and 3 being sons and claimant Nos. 4 an d 5 being mother and father of the deceased are entitled to consortium @ Rs. 40,000/- each. 37635/- and, therefore, the same is required to be corrected accordingly. It is further submitted that claimant No.1 being wife, petitioner Nos.2 and 3 being sons and claimant Nos. 4 an d 5 being mother and father of the deceased are entitled to consortium @ Rs. 40,000/- each. He, however, submits that nothing was pleaded or demonstrated before the Tribunal by the insurer as to what was the income tax paid or payable for the financial year 2018-19. 5. Heard learned counsel for the parties and perused the record. 6. It has come in the evidence of wife of the deceased that the deceased was serving in the Police Department as Selection Grade Constable and was getting salary of Rs. 41569/-. However, from the statement of PW-3 Mohd Rafiq, Head Constable, who, at the relevant point of time, was in-charge of Salary Section, the salary of the deceased was Rs. 41569/- for the month of July 2018. The Tribunal, however, took into consideration only the basic pay plus dearness allowance and fixed the monthly salary of the petitioner, at the time of accident, as Rs. 37635/- . 7. It is true that the Tribunal has not taken into consideration some allowances, which were payable to the deceased, but at the same time, I find that the Tribunal has also not given allowances for income tax deductions. Therefore, the plea of the insurer that the Tribunal has not deducted any income tax from the income of the deceased is not available to it. For the foregoing reason, I find no merit in this appeal. The same is, accordingly, dismissed. Cross Objection No.04/2020 8. As noted above, the claimants have filed their cross objections and are seeking enhancement of the compensation on the following grounds: (i) That the Tribunal has not correctly taken the monthly income of the deceased. (ii) That a sum awarded under the head “loss of consortium” is also not in tune with the case of National Insurance Company Limited v. Pranay Sethi and others; AIR 2017 SC 5157 and the case of Magma General Insurance Co. Ltd vs. Nanu Ram alias Chuhru Ram, 2018 ACJ 2782 9. (ii) That a sum awarded under the head “loss of consortium” is also not in tune with the case of National Insurance Company Limited v. Pranay Sethi and others; AIR 2017 SC 5157 and the case of Magma General Insurance Co. Ltd vs. Nanu Ram alias Chuhru Ram, 2018 ACJ 2782 9. With regard to the ground that the Tribunal has wrongly taken the monthly income of the deceased, I am of the view that since the Tribunal has not given allowances for income tax deductions, no question would arise for taking the gross income of the deceased. 10. Regarding a sum awarded under the head “loss of consortium” which is o not in tune with the case of Pranay Sethi (supra) and the case of Magma General Insurance Co. Ltd vs. Nanu Ram alias Chuhru Ram, 2018 ACJ 2782 , I am of the opinion that the same is required to be varied so as to bring it in tune with the settle law on the subject. Accordingly, the award is modified in the following manner: i For loss of dependency Rs.81,29,168/- ii For funeral expenses loss of consortium to claimants 1 to 5 @ 40,000/- each Rs.15,000/- Rs.2,00000/- iii For loss of estate Rs.15000/- Total Rs.83,59,168/- 11. Disposed of accordingly. Insurer to deposit the balance amount in the Registry of this Court. Let the amount of compensation deposited in the Registry of this Court, be released in favour of the claimants in terms of the impugned award. The balance amount shall also be released as and when the same is deposited by the insurer. The other terms and conditions of the impugned award shall remain unaltered.