Thursday, 13 May 2021

Whether MACT can make the following deductions while granting compensation in the case of a motor accident?

  In my view, the assessment of compensation made by

the Tribunal is against the settled position in law. It is well settled

position in law that except the statutory deduction to be made

towards income tax, professional tax, no other deduction is

permissible under law. The deduction from salary of the deceased towards insurance, pensionary benefts, gratuity or grant of employment to kin of deceased is not permissible. In this context, the learned counsel for the appellant has placed reliance upon the decision in the case of Sebastiani Lakra & others v. National Insurance Company Ltd. & another reported at 2018 ALL SCR 2175 wherein the Apex Court has observed in paragraph nos.12 to 16 as under:-

“12. The law is well settled that deductions cannot be

allowed from the amount of compensation either on

account of insurance, or on account of pensionary

benefts or gratuity or grant of employment to akin of the

deceased. The main reason is that all these amounts are

earned by the deceased on account of contractual

relations entered into by him with others. It cannot be

said that these amounts accrued to the dependents or

the legal heirs of the deceased on account of his death in

a motor vehicle accident. The claimants/dependents are

entitled to ‘just compensation’ under the Motor Vehicles

Act as a result of the death of the deceased in a motor

vehicle accident. Therefore, the natural corollary is that

the advantage which accrues to the estate of the

deceased or to his dependents as a result of some

contract or act which the deceased performed in his life

time cannot be said to be the outcome or result of the

death of the deceased even though these amounts may

go into the hands of the dependents only after his death.

13. As far as any amount paid under any insurance

policy is concerned whatever is added to the estate of

the deceased or his dependents is not because of the

death of the deceased but because of the contract

entered into between the deceased and the insurance

company from where he took out the policy. The

deceased paid premium on such life insurance and this

amount would have accrued to the estate of the

deceased either on maturity of the policy or on his death,

whatever be the manner of his death. These amounts are

paid because the deceased has wisely invested his

savings. Similar would be the position in case of other

investments like bank deposits, share, debentures etc..

The tortfeasor cannot take advantage of the foresight

and wise fnancial investments made by the deceased.

14. As far as the amounts of pension and gratuity are

concerned, these are paid on account of the service

rendered by the deceased to his employer. It is now an

established principle of service jurisprudence that

pension and gratuity are the property of the deceased.

They are more in the nature of deferred wages. The

deceased employee works throughout his life expecting

that on his retirement he will get substantial amount as

pension and gratuity. These amounts are also payable on

death, whatever be the cause of death. Therefore,

applying the same principles, the said amount cannot be

deducted.

15. As held by the House of Lords in Perry v. Cleaver

[(1969) 1 ALL ER 555] the insurance amount is the fruit

of premium paid in the past, pension is the fruit of

services already rendered and the wrong doer should not

be given beneft of the same by deducting it from the

damages assessed.

16. Deduction can be ordered only where the

tortfeasor satisfies the court that the amount has

accrued to the claimants only on account of death of the

deceased in a motor vehicle accident.”


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO.754 OF 2012

Anita  Arun Memane, Vs  The Maharashtra State Road Transport Corporation,


CORAM: V.L. ACHLIYA, J.


JUDGMENT PRONOUNCED ON : 24.07.2020


1] Being aggrieved by the judgment and award dated

9.12.2011 passed by the Motor Accident Claims Tribunal,

Ahmednagar, in Motor Accident Claim Petition No.376/2007, the

appellant – claimant has preferred this appeal seeking enhancement

of compensation.

2] Heard learned counsel appearing for the appellant and

respondents. Perused the record and proceedings.

3] Before adverting to deal with the submissions advanced,

it is useful to refer few facts leading to fling of claim petition. For

the sake of brevity and convenience, the parties are referred as

they are described in the impugned judgment.

4] The appellant – claimant had fled petition u/s 166 of the

Motor Vehicles Act seeking compensation on account of accidental

death of her husband Arun Ramdas Memane who died in motor

vehicle accident which had taken place on 2.6.2007 at about 4-00

p.m. on Nagar-Pune road opposite Kamargaon Bus Stand. The

claimant has approached with a case that at the time of accident,

the appellant – claimant and the deceased were proceeding from

Pune towards Nagar on their motorcycle bearing registration No.MH-

16-P-3680. The deceased was driving the motorcycle and the

appellant – claimant was a pillion rider. While they were near

Kamargaon Shivar, the ofending vehicle i.e. the S.T. Bus bearing

registration No.MH-20-D-7720 owned by the respondent no.1 which

was coming from Pune and proceeding towards Nagar gave dash to

motorcycle. Due to dash given, the deceased sustained multiple

injuries including injury to head. The appellant – claimant also

sustained injury in said accident. It is contended that the accident

occurred due to sole negligence and rash & negligent driving on the

part of driver of the S.T. Bus. The deceased was shifted to Civil

Hospital, Ahmednagar, He succumbed to injuries sustained in the

accident. The appellant was admitted to Kamalnayan Hospital at

Tarakpur, Ahmednagar.

5] The appellant has claimed that at the time of accident,

the deceased was 24 years of age and serving in Military (Infantry)

and posted at Gwalior as a Sipoy. He was receiving Rs.10,000/- per

month as salary. The appellant – claimant has claimed that the

deceased was getting free meal and residential facilities at the

place of his posting. On account of accidental death, the claimant

has worked out the claim as Rs.15,30,000/-. However, restricted

the claim for the purpose of petition and Court fees to

Rs.10,00,000/-.

6] The respondent no.1 – MSRTC contested the claim with

contention that the accident solely occurred due to fault on the part

of the deceased who was driving the motorcycle in an excessive and

unmanageable speed. While overtaking the Truck ahead of him, the

deceased could not control his motorcycle and gave dash to the

driver side bumper of the Bus and sustained injuries. The

respondent no.1 denied the case as pleaded about age, occupation

and income of the deceased to claim compensation of

Rs.10,00,000/-.

7] The respondent nos.2 & 3 – the father and mother of the

deceased, appeared in the matter and fled their written statement.

They have claimed that the appellant has fled the petition in gross

suppression of true facts and tried to mislead the Court. The

appellant – claimant has shown her residential address as her

matrimonial house at village Raytale Tq.Parner Dist.Ahmednagar

though she is residing at her parental place at Sonewadi Tq. &

Dist.Ahmednagar. In order to grab the entire amount of

compensation, the appellant has deliberately shown her address as

that of her matrimonial place of residence. In brief, the respondent

nos.2 & 3 have approached with a case that the deceased was their

only son. The deceased married with the appellant about one

month prior to the accident. After the accident, the entire

expenditure of her treatment was borne by them. Instead of taking

care of respondent nos.2 & 3, the appellant – claimant left the

matrimonial house and residing with her parents. Her parents are

trying to perform her marriage. According to respondent nos.2 & 3,

the appellant – claimant is not entitled to receive compensation. In

short, the respondent nos.3 & 4 have claimed that they alone are

entitled to receive the compensation.

8] In order to prove the claim, the appellant – claimant has

examined herself. The respondent no.1 examined the driver of the

Bus in support of their defence. On due appreciation of rival

pleadings and oral and documentary evidence adduced in the case,

the Tribunal has reached to the conclusion that the accident and

consequential death of deceased had occurred due to sole

negligence on the part of the driver of S.T. Bus. The Tribunal has

assessed the compensation to be payable as Rs.9,00,000/-

(inclusive of No Fault Liability) with future interest at the rate of

7.5% p.a. from the date of petition till its realization. Out of the

compensation awarded, the amount to the extent of Rs.1,50,000/-

each was directed to be paid to respondent nos.2 and 3. The

balance of Rs.5,50,000/- was directed to be paid to the appellant –

claimant. Being dissatisfed with the award passed by the Tribunal,

the appellant – claimant has preferred this appeal seeking

enhancement of compensation.

9] In brief, it is the contention of learned counsel for the

appellant that the Tribunal has erred in deducting Rs.4750/- from

monthly salary of deceased in assessment of compensation. It is

submitted that except the statutory deductions, no other deduction

is permissible under law from the salary of the salaried person while

assessing compensation to be payable under the provisions of

Motor Vehicles Act. So also the view taken by the Tribunal that as

appellant – claimant is receiving pensionary beneft, she is not

entitled to receive more than Rs.6,000/- per month towards loss of

income, is against the settled position in law.

10] It is further submitted that while assessing the

compensation, the Tribunal has not considered the future prospects

of the deceased who was in permanent employment with

Government of India. He had good prospects. The salary was

subject to upward revision in near future. On account of future

prospects, the income to the extent of 50% should have been added

to the existing income of the deceased while assessing

compensation by the Tribunal. Similarly, the multiplier of 18 ought

to have been applied in assessment of compensation by taking into

consideration the age of deceased. In support of the submissions

that for the purpose of assessment of compensation, no deduction

other than statutory deductions are permissible in law, the learned

counsel has referred and relied upon decisions of the Apex Court in

the cases of Manasvi Jain v. Delhi Transport Corporation Limited &

others reported at (2014) 13 SCC 22 and Sebastiani Lakra &

others v. National Insurance Company Ltd. & another reported at

2018 ALL SCR 2175. By referring the decision in the case of

National Insurance Company Limited V/s Pranay Sethi and others

reported at (2017) 16 SCC 680, the learned counsel submits that

compensation of Rs.23,92,000/- deserves to be awarded to the

appellant and urged to re-assess the compensation after adjusting

the compensation already awarded and paid to the claimants.

11] On the other hand, learned counsel for the respondent

no.1 supported the judgment and award passed by the Tribunal. It

is submitted that the accident and consequential death of deceased

occurred due to sole negligence and fault on the part of deceased.

It is submitted that the compensation as claimed is excessive. The

Tribunal has duly considered the evidence and awarded the

compensation.

12] I have carefully considered the submissions advanced in

the light of rival pleadings, oral and documentary evidence adduced

in the case and the reasons and fndings recorded by the Tribunal in

assessing the compensation. If we consider the reasons and

fndings recorded by the Tribunal in assessing the compensation,

then the Tribunal has accepted the case of the appellant that the

deceased was 24 years of age and earning Rs.10,750/- per month

as a person permanently employed in military service as Sipoy.

While assessing the compensation, the Tribunal has considered the

monthly contribution of the deceased to his family as Rs.6,000/- per

month. The Tribunal has observed that after the death of the

deceased, the appellant – claimant is receiving pension to the

extent of half of the salary of deceased. After deducting the

pension to be payable to the appellant – claimant from the monthly

salary of the deceased, the Tribunal has assessed the monetary loss

as Rs.6,000/- per month on account of accidental death of

deceased. Accordingly, the Tribunal has assessed the monetary loss

as Rs.72,000/- per year. After making deduction to the extent of

1/3rd towards personal expenses of the deceased, the Tribunal

worked out the yearly loss of income as Rs.48,000/- (Rs.72000 –

Rs.24000 = Rs.48000). Accordingly, the Tribunal assessed the

monetary loss as Rs.8,64,000/- and further awarded Rs.26,000/- in

lump-sum towards loss of consortium, loss of estate, funeral

expenses, mental and physical agony and awarded total

compensation of Rs.9,00,000/-.

13] In my view, the assessment of compensation made by

the Tribunal is against the settled position in law. It is well settled

position in law that except the statutory deduction to be made

towards income tax, professional tax, no other deduction is

permissible under law. The deduction from salary of the deceased

towards insurance, pensionary benefts, gratuity or grant of

employment to kin of deceased is not permissible. In this context,

the learned counsel for the appellant has placed reliance upon the

decision in the case of Sebastiani Lakra & others v. National

Insurance Company Ltd. & another reported at 2018 ALL SCR

2175 wherein the Apex Court has observed in paragraph nos.12 to

16 as under:-

“12. The law is well settled that deductions cannot be

allowed from the amount of compensation either on

account of insurance, or on account of pensionary

benefts or gratuity or grant of employment to akin of the

deceased. The main reason is that all these amounts are

earned by the deceased on account of contractual

relations entered into by him with others. It cannot be

said that these amounts accrued to the dependents or

the legal heirs of the deceased on account of his death in

a motor vehicle accident. The claimants/dependents are

entitled to ‘just compensation’ under the Motor Vehicles

Act as a result of the death of the deceased in a motor

vehicle accident. Therefore, the natural corollary is that

the advantage which accrues to the estate of the

deceased or to his dependents as a result of some

contract or act which the deceased performed in his life

time cannot be said to be the outcome or result of the

death of the deceased even though these amounts may

go into the hands of the dependents only after his death.

13. As far as any amount paid under any insurance

policy is concerned whatever is added to the estate of

the deceased or his dependents is not because of the

death of the deceased but because of the contract

entered into between the deceased and the insurance

company from where he took out the policy. The

deceased paid premium on such life insurance and this

amount would have accrued to the estate of the

deceased either on maturity of the policy or on his death,

whatever be the manner of his death. These amounts are

paid because the deceased has wisely invested his

savings. Similar would be the position in case of other

investments like bank deposits, share, debentures etc..

The tortfeasor cannot take advantage of the foresight

and wise fnancial investments made by the deceased.

14. As far as the amounts of pension and gratuity are

concerned, these are paid on account of the service

rendered by the deceased to his employer. It is now an

established principle of service jurisprudence that

pension and gratuity are the property of the deceased.

They are more in the nature of deferred wages. The

deceased employee works throughout his life expecting

that on his retirement he will get substantial amount as

pension and gratuity. These amounts are also payable on

death, whatever be the cause of death. Therefore,

applying the same principles, the said amount cannot be

deducted.

15. As held by the House of Lords in Perry v. Cleaver

[(1969) 1 ALL ER 555] the insurance amount is the fruit

of premium paid in the past, pension is the fruit of

services already rendered and the wrong doer should not

be given beneft of the same by deducting it from the

damages assessed.

16. Deduction can be ordered only where the

tortfeasor satisfes the court that the amount has

accrued to the claimants only on account of death of the

deceased in a motor vehicle accident.”

14] Similar view has been taken by the Apex Court in the

case of Manasvi Jain v. Delhi Transport Corporation Limited & others reported at (2014) 13 SCC 22. The Apex Court has observed in paragraph no.8 as under:-

“8. This Court in Shyamwati Sharma & Ors. Vs. Karam

Singh & Ors. (2010) 12 SCC 378, while considering the

issues of deduction of taxes, contributions etc., for arriving

at the figure of net monthly income, held that -

“while ascertaining the income of the deceased, any

deductions shown in the salary certifcate as

deductions towards GPF, life insurance premium,

repayments of loans etc., should not be excluded

from the income. The deduction towards income

tax / surcharge alone should be considered to arrive

at the net income of the deceased.”

15] In the case of National Insurance Company Limited V/s

Pranay Sethi and others (supra), the Constitution Bench of the

Hon’ble Apex Court has laid down following broad guidelines for the

purpose of determination of compensation u/s 166 of the Motor

Vehicles Act :-

“59.1. The two-Judge Bench in Santosh Devi should have

been well advised to refer the matter to a larger Bench as

it was taking a diferent view than what has been stated

in Sarla Verma, a judgment by a coordinate Bench. It is

because a coordinate Bench of the same strength cannot

take a contrary view than what has been held by another

coordinate Bench.

59.2. As Rajesh has not taken note of the decision in

Reshma Kumari, which was delivered at earlier point of

time, the decision in Rajesh is not a binding precedent.

59.3. While determining the income, an addition of 50% of

actual salary to the income of the deceased towards future

prospects, where the deceased had a permanent job and

was below the age of 40 years, should be made. The

addition should be 30%, if the age of the deceased was

between 40 to 50 years. In case the deceased was

between the age of 50 to 60 years, the addition should be

15%. Actual salary should be read as actual salary less

tax.

59.4. In case the deceased was self-employed or on a

fixed salary, an addition of 40% of the established income

should be the warrant where the deceased was below the

age of 40 years. An addition of 25% where the deceased

was between the age of 40 to 50 years and 10% where the

deceased was between the age of 50 to 60 years should

be regarded as the necessary method of computation. The

established income means the income minus the tax

component.

59.5. For determination of the multiplicand, the deduction

for personal and living expenses, the tribunals and the

courts shall be guided by paras 30 to 32 of Sarla Verma

which we have reproduced hereinbefore.

59.6. The selection of multiplier shall be as indicated in

the Table in Sarla Verma read with para 42 of that

judgment.

59.7. The age of the deceased should be the basis for

applying the multiplier.

59.8. Reasonable figures on conventional heads, namely,

loss of estate, loss of consortium and funeral expenses

should be Rs.15,000, Rs.40,000 and Rs.15,000

respectively. The aforesaid amounts should be enhanced

at the rate of 10% in every three years.”

16] Thus, considering the overall facts of the case in the light

of broad principles of law as discussed above, the appeal deserves

to be allowed and the compensation awarded by the Tribunal is

required to be re-assessed. Undisputedly, the deceased was 24

years of age. Considering the multiplier applicable to victim in the

age group of 21 to 25 years, as provided in the case of Sarla

Varma (Smt.) and others Vs. Delhi Transport Corporation and

another reported at (2009) 6 SCC 121, the multiplier of 18 is

required to be applied in assessment of compensation. Since the

deceased was having permanent job and earning Rs.10,750/- per

month and a married person with dependency of three persons, the

deduction to the extent of 1/3rd is to be made from the monthly

salary of the deceased towards personal expenses of the deceased.

In that view, amount of Rs.3583/- per month is to be deducted

towards personal expenses of the deceased from the monthly salary

of Rs.10,750/- which the deceased was drawing at the time of his

death. Thus, the monthly contribution of the deceased to the

claimants is worked out as Rs.7167/-. The amount to the extent of

50% of monthly salary is to be added towards future prospects in

terms of guidelines laid down by the Apex Court in the case of

National Insurance Company Limited V/s Pranay Sethi and others

(supra) as the deceased was having permanent job and a salaried

person. On account of addition of income towards future prospects,

the amount of Rs.3583/- deserves to be added to the monthly

contribution of the deceased to his family. In that view, the net

monthly income of the deceased to be considered for the purpose of

assessment of compensation is worked out as Rs.10,750/-. Besides

this, a reasonable amount deserves to be awarded under the

conventional head. In the case of National Insurance Company

Limited V/s Pranay Sethi and others (supra), the Apex Court has

provided to award fixed amount of Rs.70,000/- under the said head and further recommended revision of the same after every three years with addition of amount to the extent of 10%. Since the accident in question occurred about 10 years prior to the decision in the said case, in my view, award of amount of Rs.30,000/- in lumpsum towards conventional head would meet the ends of justice.

Accordingly, the compensation has been re-assessed and re-worked

out as under:-

Sr.

No.

Heads Compensation

awarded

1. Monthly Income of deceased Rs.10,750/-

2. Deduction to the extent of 1/3rd

towards personal expenses

Rs.3583/-

3. Monthly Income of deceased

(10750-3583)

Rs.7167/-

4. Addition towards future prospects

(i.e. 50% of 7167)

Rs.3583/-

5. Net monthly income of the deceased Rs.10,750/-

6. Yearly loss of income to be considered

for assessment (10750 x 12)

Rs.1,29,000/-

7. Multiplier of 18 to be applied

considering age of deceased as 24

years

(1,29,000 X 18)

Rs.23,22,000/-

8. Compensation under conventional

heads such as loss of love and

affection, consortium, funeral expenses

and loss of estate etc.

Rs.30,000/-

9. Total compensation to be awarded Rs.23,52,000/-

17] Considering the overall facts of the case that the

marriage of the deceased had taken place about few months prior

to the accident and the appellant – claimant lost her husband at

young age, I am of the view that the amount of compensation be

apportioned in the ratio of 50% to the appellant – claimant and

balance 50% to the respondent nos.2 & 3 i.e. father and mother

being dependent upon the deceased.

18] In view of above, the appeal deserves to be allowed and

the award passed by the Tribunal needs to be modifed.

Accordingly, following order is passed.

O R D E R

A] Appeal is allowed with proportionate costs.

B] The compensation of Rs.9,00,000/- awarded by the

Tribunal is enhanced to Rs.23,52,000/-.

C] The amount of compensation of Rs.9,00,000/-

awarded by the Tribunal and if paid by the respondent

no.1 and withdrawn by the claimants be adjusted towards

enhanced compensation awarded in the case.

D] The enhanced amount of compensation i.e.

Rs.14,52,000/- shall be paid by the respondent no.1 to the

appellant – claimant and respondent nos.2 & 3 with future

interest at the rate of 6% p.a. from the date of petition till

its realization within a period of twelve weeks.

E] The amount of enhanced compensation be

apportioned between the appellant – claimant and

respondent nos.2 & 3 in the ratio of 50 : 50. Out of

enhanced amount of compensation, 50% amount together

with proportionate interest be paid to the appellant –

claimant and balance 50% amount together with

proportionate interest be apportioned in equal proportion

amongst the respondent nos.2 & 3.

F] The appellant - claimants shall pay the additional

Court fees to be payable in terms of compensation

enhanced and awarded within eight weeks from the date

of receipt of modifed award.

G] The modifed award be drawn accordingly.

H] The appeal is disposed of in above terms.

(V.L. ACHLIYA, J.)


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