Chattisgarh High Court

Smt. Shashikala Deepak Sahu @ ... vs Roshan @ Lalla Mahar on 23 June, 2022

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Miscellaneous Appeal (C) No.245 of 2016

Order Reserved on : 28.4.2022
Order Passed on : 23.6.2022

United India Insurance Company Limited, through its Divisional
Manager, Divisional Office Krishna Complex, Kutchery Chowk, Raipur,
District Raipur, Chhattisgarh
---- Appellant
versus
1. Smt. Shashikala Deepak Sahu @ Shashikala Sahu, Wd/o Late Shri
Govindram Deepak Sahu, aged about 56 years,
2. Kamal Kishor Deepak Sahu, S/o Late Shri Govindram Deepak Sahu,
aged about 34 years,
3. Maheshwari Sahu, W/o Vijay Sahu, aged 29 years,
Respondents No.1 to 3 all are R/o Near Water Tank, Kabir Nagar,
Raipur, District Raipur, Chhattisgarh
4. Roshan @ Lalla, S/o Shri Ramkumar Mahar, aged 23 years, R/o
Village Barbaspur, P.O. Borid, P.S. Ranitarai, Tahsil Patan, District
Durg, Chhattisgarh
5. The Oriental Insurance Co. Ltd. Divisional Office No.1, through its
Divisional Manager, Madina Manjil, Jail Road, Raipur, Chhattisgarh
--- Respondents
and
Miscellaneous Appeal (C) No.413 of 2016
1. Smt. Shashikala Deepak Sahu @ Shashikala Sahu, W/o Late Shri
Govind Ram Deepak Sahu, aged about 56 years,
2. Kamal Kishore Deepak Sahu, S/o Late Shri Govind Ram Deepak
Sahu, aged about 34 years,
3. Smt. Maheshwari Sahu, W/o Vijay Sahu, aged about 29 years,
All R/o Near Water Tank, Kabir Nagar, Post Office Raipur, Police
Station Amanaka, Raipur, Tahsil and District Raipur, Chhattisgarh
---- Appellants
versus
1. Roshan @ Lalla Mahar, S/o Shri Ramkumar Mahar, aged about 23
years, R/o Village Barbaspur, Post Office Borid, Police Station
Ranitarai, Tahsil Patan, District Durg, Chhattisgarh
2. The United India Insurance Company Limited, through Divisional
Manager, Divisional Office Krishna Complex, Kutchery Chowk, Raipur,
Post Office Raipur, Police Station Golbazar, Raipur, District Raipur,
Chhattisgarh
3. The Oriental Insurance Company Limited, through Divisional Office
No.1, Divisional Manager, Madina Manzil, Jail Road, Raipur, Post
Office Raipur, Police Station Golbazar, Raipur, District Raipur,
Chhattisgarh
--- Respondents
2

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For United India Insurance Company Ltd. : Shri Dashrath Gupta, Advocate For Claimants Smt. Shashikala Deepak : Shri Shivendu Pandya, Advocate Sahu and 2 others For The Oriental Insurance Co. Ltd. : Ms. Astha Sharma, Advocate on behalf of Shri Goutam Khetrapal, Advocate For Driver & Owner Roshan @ Lalla : None

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. ORDER

1. Since both the appeals arise out of a common award, they are

heard and decided together.

2. Both the appeals have been preferred against the award dated

24.11.2015 passed by the Motor Accidents Claims Tribunal, Raipur

in Claim Case No.47 of 2013, whereby the Tribunal has awarded

total compensation of Rs.35,37,341 in favour of the claimants.

3. Facts of the case, in short, are that Govind Ram Deepak Sahu,

aged about 56 years, who was working as a senior technician in

Bhilai Steel Plant, Bhilai, died on 19.4.2013 in a motor accident

occurred on 17.4.2013. Roshan alias Lalla was the driver and

owner of the offending motorcycle bearing registration No.CG 05 N

3419 and the offending motorcycle was insured with United India

Insurance Company Limited. The claimants, i.e., wife, son and

daughter of the deceased filed an application for compensation

under Section 166 of the Motor Vehicles Act. In his written

statement, Roshan alias Lalla, the driver and owner of the

offending motorcycle pleaded that at the time of accident, he was

having a valid and effective driving licence and the offending

motorcycle was duly insured with United India Insurance Company

Limited and, therefore, he is not responsible for any compensation.

United India Insurance Company Limited/the insurer of the

offending motorcycle pleaded that as there was accident between

two vehicles, therefore, the deceased himself was also responsible

for the accident. The deceased had not possessed any valid and

effective driving licence and, therefore, the insurance company is

not liable to pay any compensation. After recording evidence of the

parties and hearing arguments raised by Learned Counsel, the

Tribunal, vide the impugned award, has awarded total

compensation of Rs.35,37,341 in favour of the claimants.

4. The claimants have preferred Miscellaneous Appeal (C) No.413 of

2016 for enhancement of the compensation on the ground that

while assessing compensation the Tribunal has not granted any

amount towards loss of future prospects of the deceased. While

awarding the compensation the Tribunal has assessed the income

of the deceased only on the basis of his salary slips of some of the

months. The Tribunal has not assessed the yearly income of the

deceased as per his Form 16 for the relevant year.

5. The insurer of the offending motorcycle, i.e., United India Insurance

Company Limited has preferred Miscellaneous Appeal (C) No.245

of 2016 on the ground that the Tribunal has not appreciated the fact

that the accident was between the two vehicles. The motorcycle

bearing registration No.CG 07 LE 6784 was being driven by the

deceased without any valid and effective driving licence, therefore,

the deceased was also equally (50%) negligent in causing the

accident. Overlooking this aspect, the Tribunal has wrongly

awarded the compensation on higher side, which is liable to be

reduced. In other conventional heads also, the Tribunal has

awarded compensation on higher side.

6. Learned Counsel appearing for the claimants argued that at the

time of accident the deceased was aged about 56 years and,

therefore, as observed by the Supreme Court in (2017) 16 SCC

680 (National Insurance Company Limited v. Pranay Sethi) and

2022 LiveLaw (SC) 152 (R. Valli v. Tamil Nadu State Transport

Corporation Ltd.), 10% of the established income of the deceased

should be considered towards his future prospects. Learned

Counsel further relied on the judgments in United India Insurance

Co. Ltd. v. Indiro Devi, S.L.P. (Civil) Nos.7104-7105 of 2016,

Supreme Court and 2008 0 ACJ 614 (National Insurance Company

Ltd. v. Indira Srivastava and submitted that instead of salary-slip of

the deceased his income is calculated on the basis of Income Tax

Return or Form 16, i.e., Ex.P14.

7. Learned Counsel appearing for United India Insurance Company

Limited/the insurer of the offending motorcycle opposed the

arguments advanced by Learned Counsel appearing for the

claimants. It was argued that the Tribunal has awarded Rs.25,000

towards funeral expenses and Rs.1,00,000 towards spousal

consortium, which is not in accordance with law laid down by the

Supreme Court in (2018) 18 SCC 130 (Magma General Insurance

Company Limited v. Nanu Ram alias Chuhru Ram) and Pranay

Sethi case (supra). Learned Counsel further argued that as the

deceased was in permanent job and he had no other source of

income than his salary, therefore, the amount of income tax should

be deducted from his yearly income. In this regard, reliance was

placed on 2013 (III) DMP 183 (SC) (Vimal Kanwar v. Kishore Dan).

8. I have heard Learned Counsel appearing for the parties and

perused the impugned award as also the evidence adduced by the

parties with due care.

9. It is not in dispute that at the time of accident the age of the

deceased was 56 years and 10 months and he was posted on the

post of Senior Technician in Bhilai Steel Plant, Bhilai. Before the

Tribunal, the claimants have submitted salary slips of the deceased

(Ex.P15 to P26). The deceased was getting monthly salary of

Rs.22,608 and dearness allowance of Rs.16,165. In the salary of

March, 2013, he had also got an amount of Rs.38,773 as leave

encashment. Looking to the above, the Tribunal has calculated the

yearly income of the deceased as Rs.5,24,976 plus the amount of

leave encashment payable once in a year, i.e., Rs.38,773, total

yearly income as Rs.5,68,724.

10. Before the Tribunal, Form 16 (Ex.P14) of the deceased for the

relevant year was produced by the claimants. According to the

Form 16, the yearly income of the deceased mentioned is

Rs.6,48,158, which is shown to be fully salaried income of the

deceased from which deduction of income tax of Rs.40,830 has

been mentioned. Thus, after deduction of the income tax, his

yearly income is Rs.6,07,328. In Indira Srivastava case (supra), it

has been observed by the Supreme Court in paragraph 8 as under:

"8. Mr. Rao, however, submitted that apart from the basic salary, contributions made by the employee should also be taken into consideration for calculation of the amount of compensation, inter alia, on the premise that the same would have become payable to him at a future date as, for example, voluntary retirement, superannuation etc. which would be beneficial to the entire family. It was pointed out that the contributions towards Provident Fund, Life Insurance Corporation, gratuity etc. are includable in the definition of income."

11. In Indiro Devi case (supra), the Supreme Court has observed thus:

"9. We have given our anxious consideration to this contention. There is no doubt that if the salary certificate is taken into account the salary of the deceased should be taken as Rs.1,06,176 since the gross salary was Rs.8848 per month. That, however, in our view does not mean that the income of the deceased as stated in the Income Tax return should be totally ignored. It is not possible to agree with the observation of the Tribunal that it was necessary for the claimants to "explain the said contradiction" between two figures of income. The claimants had led reliable evidence that the deceased had returned an income of Rs.2,42,606 for the assessment year 2004-05. This piece of evidence has not been discredited. Indeed, it was possible that the deceased had income from other sources also. There is nothing in the law which requires the Tribunal to assess the income of the deceased only on the basis of a salary certificate for arriving at a just and fair compensation to be paid to the claimants for the loss of life."

12. On the basis of above mentioned law laid down by the Supreme

Court, the income of the deceased should be assessed on the

basis of his Income Tax Return or Form 16. In Vimal Kanwar case

(supra), it is further observed as under:

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

In the case of Sarla Verma and Anr. (supra), this Court held "generally the actual income of the deceased less income tax should be the starting point for calculating the compensation".

This Court further observed that "where the annual income is in taxable range, the word "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 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 employee salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1A) 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."

13. Thus, on the basis of the above observations of the Supreme

Court, the yearly income of the deceased should be assessed after

making deduction of the income tax based on his Income Tax

Return or Form 16 for the relevant year. As the deceased was

salaried employee, aged about 56 years and 10 months, therefore,

as observed by the Supreme Court in Pranay Sethi case (supra)

and R. Valli case (supra), 10% of his monthly established income

should be added in respect of future prospects.

14. With regard to the conventional heads, the Tribunal has awarded

Rs.25,000 for funeral expenses and Rs.1,00,000 to the wife as

spousal consortium, which is not in accordance with law laid down

by the Supreme Court in Pranay Sethi case (supra) and Nanu Ram

case (supra). It should be Rs.15,000 for loss of estate, Rs.15,000

for funeral expenses and Rs.40,000 for spousal consortium.

15. Looking to the above observations made by the Supreme Court, I

now re-calculate the compensation, which should be awarded to

the claimants, as under:

       Sl.                       Particulars                     Amount
       No.                                                          (Rs.)
        1    Yearly Income                                        6,48,158
             [As Per Form 16
             (Ex.P14)]

        2                      Deduction of           6,48,158    6,07,328
                               Income Tax       (-)     40,830
                               Payable

        3                      Addition of            6,07,328    6,68,061
                               10% towards     (+)      60,733
                               Future
                               Prospects

        4                      Deduction of           6,68,061    4,45,374
                               1/3rd amount     (-) 2,22,687
                               towards
                               personal




                             expenses of
                             the deceased

        5                    Loss       of                         4,45,374
                             Income

        6                    Multiplier          4,45,374 x 9 =   40,08,366
                             Applicable is


        7                    Addition of         Rs.15,000 for      70,000
                             Amounts          Funeral Expenses
                             under                           +
                             Conventional
                             Heads               Rs.15,000 for
                                                 Loss of Estate
                                                             +
                                                 Rs.40,000 for
                                                       Spousal
                                             Consortium (Wife)
                                                             =

        8                                Total Compensation =     40,78,366
                                             (40,08,366+70,000)

16. As regards contributory negligence on the part of the deceased, no

evidence is available on record to show that the deceased was also

liable for the accident. Therefore, I do not find any substance in the

argument advanced in this regard by Learned Counsel for the

insurance company.

17. Resultantly, Miscellaneous Appeal (C) No.245 of 2016 preferred by

the insurer of the offending vehicle is dismissed and Miscellaneous

Appeal (C) No.413 of 2016 preferred by the claimants is partly

allowed to the extent shown above. The claimants shall now be

paid total compensation of Rs.40,78,366. This amount of

compensation shall also carry simple interest @ 6% per annum

from the date of filing of the claim petition before the Tribunal till