Rashida Jafar Shaikh And Others vs The United India Insurance Co. ...
2017 Latest Caselaw 4137 Bom

                                    1                    FA NO.203/2016

       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                           BENCH AT AURANGABAD


                      FIRST APPEAL NO.203 OF 2016


  1.       Rashida Jafar Shaikh
           Age: 43 years, Occu.: Household

  2.       Amjad Jafar Shaikh
           Age: 25 years, Occu. Agril.,

  3.       Anis Jafar Shaikh,
           Age: 20 years, Occu.: Education,
           All R/o. Dhawalpuri, Tq. Parner,
           Dist. Ahmednagar,
           At present R/o. Onkar Colony,
           Nagapur MIDC, Ahmednagar,
                                               ...APPELLANTS
                                              (Orig. Claimants)
                   VERSUS

  1.       The United India Insurance
           Company Ltd.,
           Through Branch Manager
           Sathe Chowk, Ahmednagar,
           Dist. Ahmednagar.

  2.       Anil Bhimaji Deokar,
           Age: Major, Occu.: Business
           R/o. At Post Chass,
           Tq. Nagar Dist. Ahmednagar
                                           ...RESPONDENTS

                              CORAM: P.R.BORA, J.

DATE : July 6th, 2017

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Shri. V.P. Latange, Advocate for Appellants; Shri. S.S. Rathi, Advocate for Respondent No.1; Shri. A.T. Kanawade, Advocate for Respondent No.2.

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                                              2                          FA NO.203/2016

  ORAL JUDGMENT:

1. The present Appeal is filed against the judgment

and order passed by the Motor Accident Claims Tribunal,

Ahmednagar, in M.A.C.P. No. 27/2014, decided on 30 th of

September, 2015.

2. The present appellants had filed the aforesaid

claim petition claiming compensation on account of the

death of one Jafar Shaikh, alleging the same to have been

caused in a motor vehicle accident occurred on 28 th

September, 2013 having involvement of a Tipper Truck

bearing registration No. MH-16-AE-7399, owned by

present respondent no.2 and insured with present

respondent no.1. The appellants had claimed

compensation of Rs.24,00,000/- (Rs. Twenty four Lakhs).

It was the contention of the appellants that the deceased,

at the time of his death, was 45 years and was earning

around Rs.16,000/- per month by way of his salary and

they were depending upon his income.

  3.               The         Tribunal,    after      having      considered           the

  evidence          on         record,     did    award        compensation               of




                                          3                      FA NO.203/2016

Rs.8,28,872/- inclusive of No Fault Liability compensation.

Aggrieved thereby, the appellants have preferred the

present appeal.

4. Though in the memo of appeal, several grounds

are raised in exception to the impugned judgment and

award, learned Counsel for the appellants restricted his

arguments and pressed only one objection as about the

error committed by the Tribunal of determining the

amount of compensation on the basis of the take home

salary of the deceased. Learned Counsel submitted that

the appellants have duly proved that deceased was serving

in Crompton Greaves Ltd. and that his last drawn salary

was Rs.15,511/- per month. Learned Counsel submitted

that the learned Tribunal, while determining the amount of

dependency compensation, has considered the net salary

of the deceased to the tune of Rs.6,768/- as was shown in

the salary slip of the deceased pertaining to the month of

July, 2013. Learned Counsel submitted that, after

deducting the amount of Provident Fund contribution,

Professional Tax, LIC premium, Canteen expenses, Loan

installment, society interest and society subscription from

4 FA NO.203/2016

the gross salary of the deceased, his net salary for the

month of July, 2013, was Rs.6,768/- and the same has

been held as a base by the Tribunal for determining the

amount of dependency compensation. Learned Counsel

submitted that except the amount deducted towards

profession tax and the conveyance allowance, no other

amounts could have been deducted by the Tribunal while

assessing the amount of dependency compensation

payable to the appellants. Learned Counsel relied upon

the judgment of the Honourable Apex Court in the case of

National Insurance Co.Ltd. Vs. Indira Shrivastava and

others ( (2008) 2 SCC 763) to support his contention.

Learned Counsel submitted that the amount of

compensation, as has been awarded by the Tribunal, under

the head of dependency compensation, therefore, needs to

be enhanced by holding the salary of the deceased to the

tune of Rs.14,511/- per month.

5. Shri Rathi, learned Counsel appearing for

respondent no.1 Insurance Company, was fair enough in

submitting that in view of the judgment of the Honourable

Apex Court in the case of Indira Shrivastava and others

5 FA NO.203/2016

(cited supra) relied upon by the Counsel for the appellant,

the amount of compensation to be paid to the appellants

under the head of dependency compensation will have to

be redetermined. Learned Counsel, therefore, prayed for

passing appropriate orders.

6. I have carefully considered the submissions

made by the learned Counsel appearing for the appellants

and the learned Counsel appearing for respondent no.1

Insurance Company. It is not in dispute that the gross

last drawn salary of deceased Jafar Shaikh was

Rs.15,511-00 and Paise Two. The salary slip for the

month of July, 2013, i.e. of last drawn salary of the

deceased was duly proved before the Tribunal. The

salary slip shows following deductions:

             DEDUCTIONS                         Rs.
             PF                                 964-00
             PT                                 200-00
             LIC                                587-00
             CANTEEN                            25-00
             L.Loan                             4000-00
             Society interest                   2467-00





                                               6                           FA NO.203/2016

             Society Sub.                         500-00
             TOTAL DEDUCTIONS                     8743-00
             NET SALARY                           6768-02

After deducting the aforesaid amounts, the net salary

of the deceased was shown as Rs.6768.02. The Tribunal

has assessed the amount of dependency compensation on

the basis of the said net salary. It is evident that the

Tribunal has erred in assessing the amount of

compensation. Honourable Apex Court in the case of

National Insurance Co.Ltd. Vs. Indira Shrivastava and

others (cited supra), has categorically held that the

superannuation benefits, contribution towards gratuity,

payment of insurance premium, premium paid towards

medical policy for self and family and education

scholarship, etc., shall not be deducted from the salary of

the deceased while assessing the amount of compensation

payable to the legal representatives of the deceased.

The Honourable Apex Court has further held that only the

statutory deductions i.e. towards profession tax, Income

Tax and the amounts paid by the employer to the

employee for his personal convenience e.g. conveyance

allowance, etc. only can be deducted. As such, it is

7 FA NO.203/2016

evident that the Tribunal has erred in deducting the

amount of Provident Fund contribution, LIC premium, etc.

from the gross monthly salary of the deceased while

determining the amount of compensation. The mistake

committed by the Tribunal has resulted in depriving the

appellant from their right to receive just compensation.

The impugned order, therefore, needs to be rectified to the

aforesaid extent.

7. The last drawn salary certificate of deceased

Jafar Shaikh shows that the amount received by him

towards conveyance allowance is to the tune of Rs.799.62

and the amount deducted towards the profession tax is

Rs.200/- i.e. in total Rs.999.62, rounded off to Rs.1,000/-

was only liable to be deducted from the gross salary of the

deceased. Thus, the salary of the deceased ought to

have been held by the Tribunal, after aforesaid deduction,

at Rs.14,511/- (Rs.15,511-1000=Rs.14,511/-).

Deducting one third of the said salary towards personal

expenses of the deceased, the remaining amount of

Rs.9,674/- was for the benefit of the entire family of the

deceased. The said amount annually comes to

8 FA NO.203/2016

Rs.1,16,088/-. Having regard to the age of the deceased,

the appropriate multiplier in the present matter will be of

13. Applying the said multiplier, the amount of

compensation comes to Rs.15,09,144/-. The Tribunal has

awarded to the appellants a sum of Rs.1,25,000/- towards

non pecuniary damages. Adding the said amount, the

total compensation payable to the appellants comes to

Rs.16,34,144/-. It appears to me that in the facts and

circumstances of the case, this will be the just and fair

compensation payable to the appellants / claimants.

The impugned judgment and award, therefore, needs to be

modified to the aforesaid extent.

8. For the reasons stated above, the following

order is passed:

ORDER

1. The amount of compensation payable to the

appellants is enhanced from Rs.8,28,872/- to

Rs.16,34,144/-.

2. Respondent nos. 1 and 2 shall pay the

enhanced amount of compensation to the appellants with

interest thereon at the rate of 7 per cent per annum from

9 FA NO.203/2016

the date of filing the petition till its realization.

3. On realization of the enhanced amount of

compensation, 70 per cent of the same shall be paid to

appellant no.1 Rashida Jafar Shaikh; out of which 50 per

cent amount shall be deposited in Fixed Deposit Receipt in

any nationalized Bank in her name for a period of three

years and the balance 50 per cent amount shall be paid to

her by crossed account payee cheque.

4. 15 per cent each of the enhanced amount of

compensation shall be paid by crossed account payee

cheques to appellant no. 2 Amjad Jafar Shaikh and

appellant no.3 Anis Jafar Shaikh.

5. Deficit Court fee, if any, be recovered.

Appeal stands allowed in aforesaid terms.

(P.R.BORA) JUDGE ...

AGP/203-16fa