Bombay High Court
Jaya Yashwantrao Deshmukh And 3 ... vs Sharad Govindrao Gawande And 2 Ors on 15 April, 2016
Bench: A.S. Chandurkar
211-FA-266-07 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.266 OF 2007
1. Jaya wd/o Yashwantrao Deshmukh,
Aged about 52 years, Occ. Household work
2. Deepali d/o Yashwantrao Deshmukh,
Aged about 27 years, Occ. Education,
3. Yogesh s/o Yashwantrao Deshmukh,
Aged about 25 years, Occ. Education,
4. Umesh s/o Yashwantrao Deshmukh,
Aged about 25 years, Occ. Education,
All R/o Telhara, Tq. Tehhala, Dist. Akola. ... Appellants.
-vs-
1. Sharad Govindrao Gawande,
Aged about 55 years, Occ. Service,
R/o Shantiniketan Colony,
Court Road, Paratwada,
Tq. Achalpur, Dist. Amravati.
2. United India Insurance Company Ltd,
Through : Divisional Manager, Akola.
3. Sharada Sharad Gawande,
Aged - Adult, Occ. Household,
R/o S.B.I, Couirt Road,
Paratwada, Tq. Achalpur, Dist. Amravati. ... Respondents.
Shri N. R. Tekade, Advocate for appellants.
Shri S. N. Dhanagare, Advocate for respondent No.2.
CORAM : A.S.CHANDURKAR, J.
DATE : APRIL 15, 2016
Oral Judgment :
The present appeal has been filed by the claimants to seek
enhancement in the amount of compensation that was awarded by the Motor
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Accident Claims Tribunal, Akola in M.A.C.P. No.270 of 2004.
The husband of appellant No.1 and the father of appellant Nos.2
to 4 was working in the Minor Irrigation Department of the State
Government. On 30/06/2004, when said husband of appellant No.1 was
riding his Motorcycle the same was dashed by a car coming from the opposite
direction resulting in his death. The car was insured with the respondent
No.2. The appellants filed claim petition under Section 166 of the Motor
Vehicles Act, 1988 (for short, the said Act) claiming compensation of an
amount of Rs.7,00,000/-. The Claims Tribunal after considering the
evidence on record granted an amount of Rs.3,61,000/- as compensation
including the amount of no fault liability.
2. Shri N. R. Tekade, the learned counsel for the appellants
submitted that the Claims Tribunal was not justified in determining the
salary of the deceased at Rs.5503/- especially when the gross salary was
Rs.8243/-. He submitted that only the statutory amount of tax could have
been deducted from the salary while determining the net salary of the
deceased. He submitted that the gross salary of the deceased was Rs.8243/-
and the amount deducted towards profession tax was Rs.175/-. Relying
upon the judgment of the Honourable Supreme Court in Shyamwati
Sharma and ors. v. Karam Singh and ors. (2010) 12 Supreme Court
Cases 378, he submitted that only the statutory amount of taxes payable
were liable to be deducted. The multiplier applicable was 9 considering the
age of the deceased.
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3. Shri S. N. Dhanagare, the learned counsel for respondent No.2
opposed aforesaid submissions. According to him, the Claims Tribunal had
rightly awarded the compensation by considering the net salary of the
deceased at Rs.5500/-. He also submitted that the multiplier applied by the
Claims Tribunal was correct. He therefore submitted that the appeal was
liable to be dismissed.
4. The following point arises for consideration ?
" Whether any case has been made out to modify the award
passed by the Claims Tribunal ?"
With the assistance of the learned counsel for the parties, I have
perused the records of the case and I have given due consideration to their
respective submissions. The evidence on record indicates that the salary
certificate of the deceased was placed on record at Exhibit-51. As per said
salary certificate, an amount of Rs.175/- was deducted as profession tax. The
Honourable Supreme Court in Shyamwati Sharma (supra) has held that
while determining the net income, the deduction towards income
tax/surcharge only should be taken into consideration. Other deductions
such as insurance premium, repayment of loan etc. should not be taken into
consideration. On that basis therefore, after deducting the amount of
Rs.175/- from the gross salary of Rs.8243, the net salary of the deceased
would be Rs.8068/-.
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5. The deceased was aged about 55 years. On that basis therefore,
the appropriate multiplier to be taken would be 9. By taking the annual loss
of dependency at Rs.98816/- (8068 x 12) and thereafter deducting 1/3rd
amount towards personal expenses which would be Rs.32272/-, the balance
amount would be Rs.64448/-. By applying the multiplier of 9, the total loss
of dependency would be Rs.5,80,032/-. The amount determined by the
Claims Tribunal by taking the net salary to be Rs.5,500/- is therefore
incorrect. In addition to aforesaid amount, the appellants would be entitled
for following amounts :
Rs. 50,000/- to the appellant No.1 on account of loss of
consortium.
Rs. 50,000/- each for appellant Nos.2 to 4 towards loss of love
and affection. These amounts are being granted considering the age of the
appellants. A further amount of Rs.10,000/- is granted towards funeral
expenses. The point as framed is answered by holding that the appellants
would be entitled to higher compensation by modifying the award passed by
the Claims Tribunal.
6. In view aforesaid, the following order is passed :
The judgment dated 08/09/2006 in M.A.C.P. No.270 of 2004 is
partly modified. The respondent Nos.1 to 3 are held jointly and severally
liable to pay to the appellants an amount of Rs.7,90,032/- as total
compensation including the amount of no fault liability. This amount shall be
paid with interest @ 7.5% per annum from the date of filing of the petition
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till its realization. The amount of compensation shall be divided equally
amongst the appellants.
The first appeal is allowed in aforesaid terms with no order as to
costs.
JUDGE
Asmita
