Andhra Pradesh High Court - Amravati

Smt. Balantrapu Vara Lakshmi @ vs Sajjan Singh And Others on 11 September, 2024

                                     1


      * THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
        *THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

 + MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 3373/2017

                               % 11.09.2024

#1. Smt. Balantrapu Vara Lakshmi @
 Lakshmi & 2 others
                                                            ......Appellants
And:
$1. Karra Ramesh & 2 others
                                                          ....Respondents.

!Counsel for the petitioners             : Sri Kambhampati Ramesh Babu
                                         Rep. By Smt. Ch.S.N.Meena Kumari


^Counsel for the respondent              : Sri C. Prakash Reddy
                                         Rep. By Sri M.V.Vijayaditya Reddy


<Gist:
>Head Note:
? Cases referred:

   1. (2019) 15 SCC 260
   2. (2011) 14 SCC 639
   3. SLP (C) No. 5044 of 2019 decided on 05.02.2024
   4. 2007(10) SCC 643
   5. (2013) 7 SCC 476
   6. MACMA.36 of 2024, APHC, decided on 18.12.2023
   7. (2016) 9 SCC 627
   8. (2019) 17 SCC 465
   9. (2022) 14 SCC 712
   10. (2009) 6 SCC 121
   11. (2015) 1 SCC 539
   12. (2021) 6 SCC 188
   13. (2021) 2 SCC 166
                                   2

               HIGH COURT OF ANDHRA PRADESH

                                ****

  MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 3373/2017


DATE OF JUDGMENT PRONOUNCED: 11.09.2024

SUBMITTED FOR APPROVAL:

           THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                                  &

            THE HON'BLE SRI JUSTICE NYAPATHY VIJAY


1. Whether Reporters of Local newspapers              Yes/No
   may be allowed to see the Judgments?


2. Whether the copies of judgment may be              Yes/No
   marked to Law Reporters/Journals


3. Whether Your Lordships wish to see the fair        Yes/No
   copy of the Judgment?


                                                 ___________________
                                                 RAVI NATH TILHARI, J



                                                    ________________
                                                   NYAPATHY VIJAY,J
                                        3

          HONOURABLE SRI JUSTICE RAVI NATH TILHARI

           HONOURABLE SRI JUSTICE NYAPATHY VIJAY

 MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO.3373 of 2017

JUDGMENT:

(per Ravi Nath Tilhari, J)

Heard Smt. Ch.S.N.Meena Kumari, learned counsel representing

Sri Kambhampati Ramesh Babu, learned counsel for the appellants as

well as Sri M.V.Vijayaditya Reddy, learned counsel representing Sri

C.Prakash Reddy, learned counsel for respondent No.3 - Insurance

Company.

2. This appeal under Section 173 of the Motor Vehicles Act (in short

MV Act) has been filed by the claimants for enhancing of the

compensation as awarded by the Motor Accident Claims Tribunal - cum

- II Additional District Judge, West Godavari District, Eluru (in short 'the

Tribunal') in MVOP.No.297 of 2015.

3. The claimants/appellants filed MVOP.No.297 of 2015 under

Section 166 of MV Act claiming compensation of Rs.17 lakhs for the

death of Balantrapu Satyanarayana Murthy in road accident dated

10.03.2015 at 01.45 P.M. on NH 165 road, opposite Adarsh Public

School, Kaikaluru. Their case was that the deceased was aged about 57

years. He was working as Chief Manager (Rural), Regional Business

Office, State Bank of India, Bhimavaram. He started from Bhimavaram

to go to Vijayawada to attend the meeting, in Tata Indica Car bearing

No.AP 31 BV 426B which met with an accident with lorry bearing No. AP

27 X 0757 which was being driven by the driver in a rash and negligent

manner. He died and the driver of the car also sustained injuries. His

monthly income from salary was Rs.1,10,000/-. He was an income tax

assessee.

4. The appellant No.1 herein is the widow and appellant Nos.2 & 3

are the daughters of the deceased.

5. The respondent No.1 herein is the driver of the lorry and

respondent No.2 is the owner. Respondent No.3 is the insurer of the

offending vehicle.

6. The respondent No.1 - driver of the lorry filed written statement.

The same was adopted by the respondent No.2-owner. They denied the

averments in the claim petition. It was contended that the driver of the

lorry was having valid driving license and vehicle had valid insurance

policy. The claim was very excessive. The respondents were not liable

to pay the amount and in case of any liability it was for the insurance

company to pay the compensation.

7. Respondent No.3 - insurance company also filed the written

statement. It was pleaded inter-alia that the offending vehicle was

insured with the said respondent. The insurance policy was valid from

13.02.2015 to 12.02.2016. After the accident, respondent No.2

transferred the vehicle to one Khambhampati Maruthi Rama Mohana

Rao. The driver was neither rash nor negligent in driving lorry. The

accident occurred only on account of negligence on the part of the driver

of the Tata Car. The petition was bad for non - joinder of the driver,

owner and insurer of the Tata Indica car. The insurance company

pleaded that the claimants be put to strict proof of the averments

regarding age, income and occupation of the deceased etc.

8. The Tribunal framed the following issues:

1. Whether the pleaded accident dated 10-03-2015 occurred

due to rash and negligent driving of 1st respondent of lorry

bearing No.AP 27 X 0757 and whether the deceased Balantrapu

Satyanarayana Murthy died in the said accident?

2. Whether the crime vehicle Lorry bearing No.AP 27 X 0757

was owned by R.2 and insured with R.3 at relevant time?

3. Whether there are any violations of conditions of policy?

Whether the petition is maintainable for non-joinder of driver,

owner and insurer of Indica Car bearing No.AP 31 BV

4268?

4. Whether the petitioners are entitled for compensation, if so, to

what quantum and what is the liability of respondents?

5. What relief?

9. The claimants to prove their case examined the claimant

No.1/appellant No.1 as P.W.1 and three independent witnesses as

P.Ws.2 to 4. They relied upon Exs.A1 to A7 and Exs.X1 to X7. The

respondents did not examine any witness. The respondent No.3 got

marked Ex.B1 insurance policy with consent.

10. The Tribunal returned the finding that due to rash and negligent

driving of the respondent No.1 i.e., the driver of the lorry, the accident

occurred. The insurance policy was in force on the date of the accident.

Respondent No.1 had valid driving license and valid documents for the

vehicle. There was no violation of the terms and conditions of the policy.

It held that the accident occurred only due to rash and negligent driving

of the driver of the lorry; so, the driver, owner and insurer of Tata Indica

car were not necessary parties. Respondent Nos. 2 & 3 i.e., owner and

insurer of the offending vehicle were jointly & severally liable to pay the

compensation amount. The Tribunal determined the compensation as

Rs.43,98,236/- with interest @ 7.5% per annum from the date of filing of

the claim petition till the date of deposit of amount. Thus the claim

petition was allowed in part.

11. The Tribunal determined the income of the deceased as Rs.

93,995/- as per the Ex. X2 and deducted Rs.5,000/- towards income tax.

Towards future prospects it added 15% and thus the income of the

deceased was taken as Rs.1,03,090/-. Deduction of 1/3 rd was made

towards personnel expenses. It applied the multiplier of '9'. Thus, the

loss of income was calculated as Rs.68,726/- x 12 x 9 = Rs.74,22,408/-.

It deducted 30% towards income tax and on such deduction, the amount

came to Rs. 51,95,736/-. It further reduced Rs.10,00,000/- (Rupees Ten

Lakhs), which was paid as compensation to the appellant No.1 by the

employer of the deceased, out of the compensation as determined under

the award.

12. Learned counsel for the appellants submitted that as per Ex.X2

the income tax that was deducted from the deceased was Rs. 4,254/-

and consequently only that amount ought to have been deducted while

determining monthly income i.e., out of Rs.93,995/- - Rs.4,254/- =

Rs.89,741/- and not Rs.5,000/-. He further submitted that once that

amount of tax was deducted from the monthly salary, further deduction

towards income tax @ 30% could not have been made.

13. Learned counsel for the appellant further submitted that the

payment of ex-gratia compensation of Rs.10,00,000/- by the employer,

was not to be deducted from the compensation granted under the award

under MV Act to which the claimants were held entitled.

14. Learned counsel for the appellant placed reliance in the case of

National Insurance Company Limited v. Mannat Johal1.

15. Learned counsel for the respondent - insurance company

submitted that the deduction of 30% income tax is justified. He placed

reliance in the case of Ranjana Prakash v. Divisional Manager2.

16. Learned counsel for the respondent - insurance company further

submitted that the Tribunal rightly adjusted the amount of compensation

(2019) 15 SCC 260

(2011) 14 SCC 639

of Rs.10,00,000/- granted by the employer, by reducing the

compensation under the MV Act. He submitted that the claimants could

not be doubly benefited. He placed reliance in the case of Krishna v.

Tek Chand3.

17. Learned counsel for the respondent - insurance company further

submitted that the married daughters, the appellant Nos. 2 & 3 would not

be the dependents of the deceased. Though, they may be entitled for

compensation being the legal heir, but not being the dependents, in

deducting the amount towards personal expenses of the deceased, they

should not be counted in the number of the dependents. He placed

reliance in Manjuri Bera v. Oriental Insurance Company Ltd4.

18. We have considered the aforesaid submissions and perused the

material on record.

19. The following points are for our consideration:

A) Whether the Tribunal rightly considered the income of the

deceased as Rs. 88,995/- per month?

B) Whether the Tribunal is right in deducting income tax @

30%, even after taking the monthly income of the deceased

after deduction of income tax? In other words, whether, once

the income tax was deducted, the Tribunal is justified in

making further deductions of income tax @30%?

SLP (C) No. 5044 of 2019 decided on 05.02.2024

2007(10) SCC 643

C) Whether the amount of Rs. 10,00,000/- as ex-gratia,

granted to the claimants by the employer could be deducted

from the amount of compensation determined by the Tribunal

under the MV Act ?

D) Whether the award of the Tribunal deserves to be

modified in view of the submissions made that the claimant/

appellant Nos. 2 & 3 are not dependant of the deceased ?

E) To what just and fair compensation the appellants are

entitled?

Analysis

Points A & B

20. While computing the monthly income of the deceased, from Ex.X2

it is evident that towards income tax an amount of Rs.4,254/- was

deducted. The monthly income of the deceased after such deduction

would come to Rs.89,741/- (i.e., Rs.93,995/- - Rs. 4,254/-).

21. In Shyamwati Sharma (supra), the Hon'ble Apex Court held that

in determination of the annual income, appropriate deduction has to be

made towards income tax. However, while ascertaining the income of

the deceased, any deductions shown in the salary certificate as

deductions towards GPF, life insurance premium, repayment of loan,

etc., should not be excluded from the income.

22. In Manasvi Jain (supra) also, the Hon'ble Apex Court held that

except contribution towards income tax, the other voluntary contributions

made by the deceased, which are in the nature of savings, cannot be

deducted from the monthly salary of the deceased to decide his net

salary or take home salary.

23. In Ranjana Prakash (supra) the contention raised by the insurer

was that in the absence of any evidence as to the actual income tax

paid, the Tribunal ought to have made 30% deduction of income tax.

The contention of the claimants was that they were not awarded future

prospects @ 30%. The High Court therein deducted 30% income tax in

the absence of any evidence about the actual amount paid as income

tax. The Hon'ble Apex Court held that 30% increase on account of future

prospects and 30% deduction on account of income tax would cancel

each other. The distinguishing feature for non-applicability of the

judgment in Ranjana Prakash (supra) to the facts of this case is that,

that was a case of 'absence of evidence about the income tax paid',

whereas in the present case there is evidence of the actual amount paid

as income tax. Ranjana Prakash (supra) referred to Sarla verma (smt)

v. Delhi Transport Corporation5 to observe that income tax paid

should be deducted from the annual income to arrive at the 'income'. In

Sarla verma (supra) any percentage of income tax to be deducted, we

are not able to find.

(2009) 6 SCC 121

24. In Vimal Kanwar v. Kishore Dan6 on the point of deduction of

the income tax, the Hon'ble Apex Court held as under:

22. The third issue is "whether the income tax is liable to be deducted for determination of compensation under the Motor Vehicles Act".

23. In Sarla Verma this Court held: (SCC p. 133, para 20) "20. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation." This Court further observed that: (SCC p. 134, para 24) "24. ... Where the annual income is in taxable range, the words 'actual salary' should be read as 'actual salary less tax'." Therefore, it is clear that if the annual income comes within the taxable range, income tax is required to be deducted for determination of the actual salary. But while deducting income tax from the salary, it is necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head "salaries" one should keep in mind that under Section 192(1) of the Income Tax Act, 1961 any person responsible for paying any income chargeable under the head "salaries" shall at the time of payment, deduct income tax on estimated income of the employee from "salaries" for that financial year. Such deduction is commonly known as tax deducted at source ("TDS", for short). When the employer fails in default to deduct the TDS from the employee's salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1-A) of the Income Tax Act, 1961.

Therefore, in case the income of the victim is only from "salary", the presumption would be that the employer under Section 192(1) of the Income Tax Act, 1961 has deducted the tax at source from the employee's salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However, there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary, and the annual income falls within taxable range, in such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income.

25. In M/s.ICICI Lombard General Insurance Co.Ltd. v. Dasari

Nagalakshmi7 a coordinate Bench, observed on the point of deduction

of income tax as per the slab applicable from time to time in different

(2013) 7 SCC 476

MACMA.36 of 2024, APHC, Decided on 18.12.2023

financial years that certain exemptions like HRA, Transport allowance,

medical reimbursements, Home loans / study loans etc., are provided

under the Income Tax Act. In that scenario, it would be difficult to

visualize the amount of tax payable by the deceased as a lot of it would

depend on the tax planning and exemptions claimed by the individual.

26. In our view, once the monthly income is taken after deduction of

income tax, further income tax could not be deducted @ 30%. It shall be

presumed that, whatever income tax was deducted, as per Ex.X2, was

deducted as per the applicable rates. In Vimal Kanwar (supra), the

Hon'ble Apex Court held that in case the income of the victim was only

from 'salary' the presumption would be that the employer under Section

192 (1) of the Income Tax Act, 1961 had deducted the tax at source

from the employee's salary. In case, if an objection is raised by any

party, the objector is required to prove by producing evidence to suggest

that the employer failed to deduct the TDS from the salary of the

employee. In the said case, it was held that the High Court was wrong

in deducting 20% from the salary of the deceased towards income tax

for calculating the compensation. As per law, the presumption will be

that the employer State Government at the time of payment of salary

deducted income tax on the estimated income of the deceased

employee from the salary. In the absence of any evidence, it was held

that the salary as shown in the Last Pay Certificate should be accepted

for calculating the compensation payable to the dependents.

27. For the reasons recorded above, we are of the view that the

income tax once deducted at source and the net salary being taken after

such deduction, the Tribunal was not justified in again deducting the

income tax @ 30% from the amount of loss of the dependency.

Point C:

28. So far as deduction/adjustment of ex-gratia amount from

compensation under Motor Vehicles Act is concerned, we may refer

Mannat Johal (supra).

29. In Mannat Johal (supra) the Hon'ble Apex Court considered the

point of deduction for ex-gratia as to when it was warranted. In the said

case, the High Court had made upward revision of the amount of

compensation. In the appeal before the Hon'ble Apex Court, the

insurance company questioned the quantum of compensation, basically

on the ground that while making assessment of pecuniary loss, the ex-

gratia received by the claimants, from the employer of the deceased

deserved to be deducted. The insurer placed reliance in Reliance

Genera Insurance Co. Ltd. V. Shashi Sharma 8. The Hon'ble Apex

Court observed that in Shashi Sharma (supra), a three-Judge Bench of

the Hon'ble Apex Court was dealing with the payment received by the

legal heirs of the deceased in terms of Rule 5 of the Haryana

Compassionate Assistance to the Dependents of Deceased Government

Employees Rules, 2006 (in short 'the 2006 Rules'), whereunder, on the

(2016) 9 SCC 627

death of a government employee, the family would continue to receive

as financial assistance a sum equal to the pay and other allowance, that

was last drawn by the deceased employee for the periods specified in

the Rules and after the said period, the family would be entitled to

receive family pension. The family would also be entitled to retain the

government accommodation for a period of one year in addition to

payment of Rs.25,000/- as ex gratia. The Hon'ble Apex Court observed

that the decision in Shashi Sharma (supra) was explained and

distinguished in Sebastiani Lakra v. National Insurance Company

Limited9. It was observed that the said case dealt with the payments

made to the legal heirs of the deceased in terms of Rule 5 (1) of the

2006 Rules. In Mannat Johal (supra), the Hon'ble Apex Court observed

that it could not be shown if the ex gratia amount received by the

claimants therein had been under any Rules of service or would be of

continuous assistance as per the case of Shashi Sharma (supra). In an

overall analysis, the Hon'ble Apex Court observed that the decision in

Shashi Sharma (supra) would not apply to the facts of that case and

any deduction, in the amount awarded by the High Court, was not

necessary.

30. Para-12 of Mannat Johal (supra) is extracted as under:

"12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs 3,21,801 was paid by the employer to the claimants,

(2019) 17 SCC 465

being one year's gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharma case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (the 2006 Rules) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs 25,000 as ex gratia lo.

12.1. The aforesaid decision in Shashi Sharma has been explained and distinguished by another three-Judge Bench of this Court in Sebastiani Lakra in the following: (Sebastiani Lakra case, SCC paras 9-10) "9. In Shashi Sharma case, this Court was dealing with the payments made to the legal heirs of the deceased in terms of Rule 5(1) of the Haryana Compassionate Assistance to the Dependants of Deceased Government Employees Rules, 2006 (for short "the said Rules"). Under Rule 5 of the said Rules on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods set out in the Rules and after the said period the family was entitled to receive family pension. The family was also entitled to retain the government accommodation for a period of one year in addition to payment of Rs 25,000 as ex gratia.

10. In this case, the three-Judge Bench adverted to the principles laid down in Helen C. Rebello casel!, followed in Patricia Jean Mahajun case 2, and came to the conclusion that the decision in Vimal Kanwar case 13, did not take a view contrary to Helen C. Rebello! or Patricia Jean Mahajan 2 cases. The following observations are relevant: (SCC p. 641.para 15)

15. The principle expounded in this decision in Helen C. Rebello case!! that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the "pecuniary advantage" from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act, 1939, and must apply proprio vigore to the corresponding provisions of the Motor Vehicles Act, 1988. This principle has been restated in the subsequent decision of the two-Judge Bench in Patricia

Jean Mahajan case 2, to reject the argument of the Insurance Company to deduct the amount receivable by the dependants of the deceased by way of "social security compensation" and "life insurance policy"?

However, while dealing with the scheme the court held that applying a harmonious approach and to determine a just compensation payable under the Motor Vehicles Act it would be appropriate to exclude the amount received under the said Rules under the Head of "Pay and Other Allowances" last drawn by the employee. We may note that on principle this Court has not disagreed with the proposition laid down in Helen C. Rebello or in Patricia Jean Mahajan, but while arriving at a just compensation, it had ordered the deduction of the salary received under the statutory Rules".

12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra', we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary. 12.3. Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self- employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference."

31. From the aforesaid judgment we are of the view that if the ex-

gratia amount has been received by the claimants under any Rules of

services and as of continuous assistance, like in Shashi Sharma

(supra) where ex-gratia payment was under Rule 5 of the 2006 Rules,

then those deductions can be made while determine just and fair

compensation.

32. In the present case any such Rule, as in line with Rule 5 of the

2006 Rules, under which the employer granted ex-gratia payment to the

claimants, has not been brought to our notice. In the absence of any

such rule, merely because the ex-gratia payment was made, that would

not make it liable to be deducted or adjusted in the compensation

determined under MV Act. The case of Shashi Sharma (supra), in our

view, would not get attracted in the facts of the present case. The

Shashi Sharma (supra) is on a particular Rule i.e., the 2006 Rules.

33. The Krishna (supra) relied upon by the learned counsel for the

respondent, is also the case in which the Ex-gratia payment was made

under Rule 5 of the 2006 Rules. The Hon'ble Apex Court followed the

previous judgment in the case of Shashi Sharma (supra). For the same

reasons, as aforesaid, we are of the view that Krishna (supra) has also

no application. It is of no help, in the facts of this case, to the insurance

company. The Krishna (supra) is to be considered when the Ex-gratia

payment is made under Rule 5 of the 2006 Rules or/and if there is some

rule, to the affect of Rules 2006.

34. Following the Sebatiani Lakra (supra) as also Mannat Johal

(supra), we hold that the amount of Rs.10,00,000/- granted to the

claimants, as ex-gratia, was not liable to be adjusted against the

compensation amount under the MV Act.

Point D:

35. On the point of legal representatives and the dependents, in

N.Jayasree v. Cholamandalam Ms General Insurance Company

Limited10, the Hon'ble Apex Court observed and held that the MV Act

does not define the term "legal representative". Generally, "legal

representative" means a person who in law represents the estate of the

deceased person and includes any person or persons in whom legal

right to receive compensatory benefit vests. A "legal representative" may

also include any person who intermeddles with the estate of the

deceased. Such person does not necessarily have to be a legal heir. In

the context of the MV Act, the Hon'ble Apex Court held that legal

representatives "should be given a wider interpretation for the purpose of

Chapter XII of the MV Act and it should not be confined only to mean the

spouse, parents and children of the deceased. MV Act is a benevolent

legislation enacted for the object of providing monetary relief to the

victims or their families. Therefore, the MV Act calls for a liberal and

wider interpretation to serve the real purpose underlying the enactment

and fulfill its legislative intent. In order to maintain a claim petition, it is

sufficient for the claimant to establish his loss of dependency. Section

166 of the MV Act makes it clear that every legal representative who

suffers on account of the death of a person in a motor vehicle accident,

should have a remedy for realization of compensation.

(2022) 14 SCC 712

36. The Hon'ble Apex Court further observed that the percentage of

deduction for personal expenditure cannot be governed by a rigid rule or

formula of universal application. It also does not depend upon the basis

of relationship of the claimant with the deceased. In some cases, with

respect to father, it was observed that the father may have his own

income and thus will not be considered as dependent. Sometimes,

brothers and sisters will not be considered as dependents because they

may either be independent or earning or married or be dependent on the

father. The percentage of deduction for personal expenditure, thus,

depends upon the facts and circumstances of each case. In N.Jayasree

(supra), the question was whether the mother-in-law of the deceased

was dependent. Considering the facts and material on record, it was

established that the mother-in-law was dependent upon her deceased

son-in-law.

37. Para Nos.14 to 16 of N.Jayasree (supra) are as under:

14. The MV Act does not define the term 'legal representative'.

Generally, 'legal representative' means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A 'legal representative' may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative.

15. Indicatively for the present inquiry, the Kerala Motor Vehicle Rules, 1989, defines the term 'legal representative' as under:

"2.(k) "Legal Representative" means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the

time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased."

16. In our view, the term 'legal representative' should be given a wider interpretation for the purpose of Chapter XII of the MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, the MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfill its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.

38. In Manjuri Bera (supra) it was held that the liability under Section

140 of Act, did not cease because of absence of dependency. Where a

legal representative who is not a dependant files an application for

compensation, the quantum cannot be less than the liability referable to

Section 140. Therefore, even if there was no loss of dependency the

claimant being the legal representative will be entitled to compensation.

In the concurring judgment Hon'ble Sri Justice S.H. Kapadia, also

observed that the statutory compensation could constitute part of the

estate of deceased father and his legal representative, the married

daughter was entitled to receive such compensation.

39. The daughter/claimants are the dependents of the deceased or

not, is a question of fact. Depending upon the various factors, even

married daughters may be dependent on father. If it was the case of the

insurance company that the claimants-daughters were married or that

they were not dependent on the deceased, they ought to have pleaded

and proved it by discharging the burden of proof, on them. They could

have proved any independent source of livelihood or on husband, in

case they were married, and not so dependent on father, or to some

extent and not totally. But the insurance company did not lead any

evidence to prove that.

40. Even, if it be taken that the claimant daughters were not

dependant, though we are not holding so, it shall have no effect on the

deductions made towards personal expenses of the deceased. There

were three (03) claimants. If out of them two are not the dependants,

then also 1/3rd deduction towards personal expenses shall be made. The

tribunal has made 1/3rd deduction, which is as per Sarla verma (supra)

i.e., upto 3 dependants 1/3 rd deduction.

Point E:

41. In our view, as per the consideration made, the total amount of

just and fair compensation to which the claimants/appellants are entitled

would come to as in the table below:

      Sl.No.              Head                 Compensation awarded

        1.        Net Annual Income                  Rs. 10,76,892/-
               (93,995 - 4,254 = 89,741 x12)
        2.        Future prospects                     Rs. 12,38,425/-
               (@ 15% = Rs.1,61,533/-)         (i.e., 10,76,892 + 1,61,533)

        3.        Deduction towards                  Rs. 4,12,808/-
                 personal expenditure
                        (1/3rd)
        4.          Total annual loss                Rs. 8,25,617/-

        5.        Multiplier of 9 at the             Rs.74,30,554/-
                       Age of 57


         6.           Conventional Heads:
                       i) Loss of Consortium         Rs. 1,44,000/-
                                                    (Rs. 48,000/- x 3)
                       ii) Loss of Estate             Rs. 18,000/-
                       iii) Funeral expenses          Rs. 18,000/-
         7.            Total Compensation            Rs. 76,10,554/-

42. The Tribunal granted interest @ 7.5% p.a. In Kumari Kiran vs.

Sajjan Singh and others,11 the Hon'ble Apex Court set aside the

judgment of the Tribunal therein awarding interest @ 6% as also the

judgment of the High Court awarding interest @7.5% and awarded

interest @ 9% p.a. from the date of the claim petition. In Rahul Sharma

& Another vs. National Insurance Company Limited and

Others,12the Hon'ble Apex Court awarded @ 9% interest p.a. from the

date of the claim petition. In Kirthi and another vs. Oriental Insurance

Company Limited,13 the Apex Court allowed interest @ 9% p.a.

Accordingly, on the aforesaid amount of compensation the

claimants are granted interest @ 9 % p.a. from the date of the claim

petition till realisation.

43. RESULT:

In the result,

i) The appeal of Claimants is partly allowed;

(2015) 1 SCC 539

(2021) 6 SCC 188

(2021) 2 SCC 166

ii) The claimants are granted enhanced compensation of

Rs.76,10,554/- as just and fair, with interest @ 9% per annum

thereon from the date of claim petition till realization;

iii) The respondent No.3 - Insurance Company shall deposit the

amount as aforesaid, adjusting the amount already deposited if

any, before the Tribunal within one month;