IN MOTOR VEHICLE ACCIDENT
CASES WHILE CALCULATING COMPENSATION AMOUNT SALRY RECEIVED BY THE LEGALHEIR WHO
GOT EMPLOYMENT ON COMPASSIONATE GROUND CAN NOT BE DEDUCTED.
Salary received by the legalheris of
the deceased cannot be deducted while calculating the compensation amount is
clearly discussed in U.Kanchan @ kanchan kumara VS S.Sani kommu Rami Reddy
& another 2020(1)TNMAC 566(DB).
The brief facts of the case are as
follows:
On 19.2.20144444 at about 4.30 AM one
mr.Uttam chand was travelling in a auto bearing regn.no. TN 01 AQ 0492 at
Madhavaram high road from east to wast. When the said auto was proceeding near
RD foundation, a lorry bearing regn.no. AP 07 TB 7459 came from the opposite
direction and hit the auto. Due to the accident, the said Uttam chand and the
auto driver sustained multiple grievous injuries. The said Uttam chand died on
the spot. Hence the family members viz., wife, son, daughter, mother and father
of the deceased uttam chan filed a claim petition in mcop NO 2968 of 2014 as
against the owner and insurer of the lorry claiming a sum of Rs.4,00,00,000/
as compensation for the death of Mr. P.
Uttamchand.
Mr. Sani kommu Rami Reddy (owner of
the lorry) remained exparte before the tribunal.
Before the tribunal the insurer of
the lorry file the counter statement in mcop 2968 of 2014 denying all the
avertments made by the claimants in the claim petition.
When Mcop came up for trial before the tribunal on the
side of the petitioner claimants, 3 witnesses were examined viz., pW1 to PW#
and 30 documents were marked as Exhibits P1 to p30 and on the side of the
respondents 2 witnesses were examined viz., RW1 &RW2 and 2 documents were
marked as exhibits viz., Ex R1 & R2.
The tribunal after hearing both the
parties, fixed the entire negligence on the driver of the lorry and fastened
the liability jointly and severally against the owner and insurer of the lorry.
The tribunal awarded a sum of Rs.75,98,694 as compensation to the claimants as
against their claim of Rs.4,00,00,000/. The break up details of the
compensation awarded by the tribunal in
mcop 2968 of 2014 are mentioned hereunder.
Loss of pecuniary benefits -- Rs.69,73,694/
Loss of love and affection --
Rs. 4,00,000/
Loss of Estate
-- Rs. 1,00,000/
Loss of consortium -- Rs.
1,00,000/
Funeral expenses -- Rs.
25,000/
Total compensation -- Rs.75,98,694/
Liability:
Thought the learned counsel appearing
for the insurance company strongly contended against the quantum of
compensation awarded by the tribunal, formally opposed the liabilities fixed by
the tribunal against the owner as well as the insurer of the lorry.
However he further contended that the
accident occurred due to negligence of the driver of the auto. There is no
fault on the part of the driver of the lorry who drove the vehicle with due
care. However, the tribunal wrongly fixed
100% negligence against the
driver of the lorry and therefore, the same is liable to be set aside.
On the other hand the learned counsel
appearing for the claimants would contend that the tribunal rightly fixed the
negligence against the driver of the lorry.
He further contended that Ex P1, FIR
was registered against the driver of the lorry, Rw2, Elango, eye witness of the
accident deposed that the accident occurred due to the negligence of the driver
of the lorry. Also, the driver of the lorry did not come to the witness box and
deposed his evidence. He, therefore, would contend that in the absence of any
contraverting evidence, the tribunal correctly
fixed the liability on the owner and the insurer of the lorry.
The materials including judgement and
decree passed by the tribunal in mcop
2968/14 also gone through. On perusal of Ex P1,FIR, it is crystal clear that
the accident occurred due to the rash and negligent driving of the driver of
the lorry. It is also clear that the driver of the lorry never come to the
witness box and deposed his evidence, in order to prove that he is not
responsible for the accident. In the absence of any contra evidence, on the
basis of EX P1, FIR marked on the side of the claimants and oral evidence of
RW2, the tribunal rightly fixed the entire negligence on the driver of the
lorry. Hence there is no error in
fixation of negligence as well as the liability by the tribunal.
QUANTUM
So far as quantum of compensation is
concerned, the learned counsel appearing for the claimants would submit that
although the claimants filed a claim petition in mcop 2968 of 2014 as against
the owner and insurer of the offending vehicle lorry claiming a sum of Rs.4,00,00,000/as
compensation for the death of uttam chand, the tribunal awarded a sum of
Rs.75,98,694 as compensation to the claimants. According to the claimants, the
deceased uttam chand was the founder and managing director of M/s Varshiddi
Enterprises pvt. Ltd., and he was earning a sum of Rs.18,00,00,000/ per annum.
In this regard, the income tax return (ITR) of the deceased for the assessment
year 2009 – 10, 2011 – 12, 2012 – 13, 2013 – 14, & 2014 – 15 were filed by
the claimants and the same were marked as Ex P7 to Ex P 11.
The counsel would also submit that as
per Ex P 7 to EX P 11 marked on the side of the claimants and the latest ITR of
the deceased which was available before the tribunal, the income of the
deceased Uttam chand was Rs.18,00,000/per annum. The hon’ble supreme court also
had held in number of cases that only the last drawn income should be taken as the income of the deceased
for determining the compensation. However, in the present case, the tribunal
without considering all these aspects calculated the annual income of the
deceased as Rs.15,00,000/ and deducted a sum of Rs. 3,25,000/ towards income
tax. The tribunal also deducted a sum of Rs.6,00,000/ towards the salary
of the 2nd petitioner, son of the deceased who was appointed as
director of M/S Varsiddi Enterprises pvt.ltd., in the place of his deceased
father Uttam chand.
The main contention of the claimant
is that the tribunal erroneously calculated the annual income of the deceased
as Rs.15,00,000/ instead of Rs.18,00,000/. Their further contention is
that a sum of Rs.6,00,000/ would not be deducted towards the salary of the son
of the deceased. He therefore, would content that as per the ITR of the
deceased uttam chand, the compensation
to be awarded by calculating the annual income of the deceased as Rs.18,00,000/,
without deducting any amount towards the salary of the son of the deceased. In
support of his contention, he relied on the following judgements.
·
Helen C. Rebello (Mrs) and others Vs Maharastra state road
transport corporation and another,1999 (1) SCC 90;
·
Vimal kanwar and others Vs Kishore Dan and others, 2013 (1)
TNMAC 641 9SC): 2013 (7) SCC 476.
In the case of Vimal Knwar
and others Vs Kishore Dan and others, 2013 (!) TNMAC 641 (SC) : 2013 (7) SCC
476, the hon’ble Apex court held as follows:
21. ……….. An
employee dies in harness even in normal course, due to illness and to maintain
the family of the deceased one of the dependants may be entitled for compassionate
appointment but that cannot be termed as “pecuniary advantage” that comes under
the periphery of the motor vehicles act and any amount received on such
appointment is not liable for deduction for determination of compensation under
the motor vehicles act.
The contention of the
petitioner that the amount received by the dependant as salary ion the
compassionate appointment is not liable to be deducted for determination of
compensation under the motor vehicles act as held by hon’ble supreme court.
Upon the filing of memo by
the insurance company to take up a notional income of RS.5,00,000/ pa. re – determination
of the income of the deceased was done.
Loss of income -- Rs.68,25,000/
(Rs.5,00,000 /30% x ¼ x 14)
Loss of love and affection --
Rs. 1,60,000/
Loss of Estate
-- Rs. 15,000/
Loss of consortium -- Rs.
40,000/
Funeral expenses -- Rs.
15,000/
Total compensation -- Rs.70,55,000/
The award is arrived accordingly.
Hence it is decided that the salary received on compassionate ground
appointments are not deductible while calculating compensation.
Posts
0 Comments