The Commissioner of Income Tax-III, vs. M/S Resource Technologies Pvt. Ltd.

1-fa282-06 and mother of the deceased captain Shailendra Karandikar, in MACT Sangli claiming compensation amount of Rs.18,23,000/- with interest at the rate of 18% per annum from the date of filing of the Claim Petition from Respondents jointly and severally, i.e., Respondent No.1 being the owner of the offending truck and Respondent No.2 New India Assurance Company limited, who were insurer of the offending truck. 5. Respondent No.1 owner of the offending vehicle did not lead evidence neither file their written statement therefore, the matter proceeded ex-parte against the Respondent No.1 owner of the offending truck. 6. Respondent No.2, the Insurance Company filed their written statement, and denied the contentions of the claim Petition. 7. Claimant lead their evidence by Claimant No.1 stepping in the witness box and leading evidence. The said witness was cross examined by the Advocate for Insurance Company. Respondent No.2 Insurance Company examined two witnesses i.e. Respondent No.1 being the driver of the offending vehicle and witness No.2 Mr.Ajay Paul being the Photographer who clicked photo of the accident site. Both the witnesses of the Insurance Company were examined by the Claimant’s Advocate. 4/30

1-fa282-06 8. Based on the Issues framed, the MACT answered the issues in the following manner : - “ 1) Whether the petitioners prove that their son- Shailendra Shridhar Karandikar died in a motor vehicle accident due to rash and negligent driving of the driver of truck bearing No. MH-05/1420 owned by respondent no.1 and insured with respondent no.2 at the time of accident i.e on 27.07.2002 ? 2) Whether the Respondent No.2 proves that the driver of the said truck was not holding valid and effective driving license at the time of the accident? 3) Whether the respondent no. 2 proves that respondent no.1 has violated the material conditions in the Insurance Policy? 4) Whether the petitioners are entitled for any compensation amount? If yes, to what extent? And from whom? 5) What award and order ? My findings on the above issues are recorded the reasons given below : 1) In the affirmative 2) Redundant 3) Redundant 4) In the affirmative. Rs.5,15,000/- including the amount of no fault liability'. Respondent nos. 1, 2 jointly and severally. 5) As per final order below.” 9. The Member MACT, Sangli by his judgment and award dated 20 September 2005, partly allowed the Claim Petition. It 5/30

1-fa282-06 thereby allowed the Claim Petition to the extent of Rs.5,15,000/- including the amount of Rs.50,000/- as ‘No Fault Liability” with interest at the rate of 9% per annum from the date of filing of the claim Petition till its realization, jointly and severally to be paid by Respondent Nos. 1 and 2, to the Petitioner Nos. 1 and 2 equally. 10. Being aggrieved by the award dated 28 September 2005 the Insurance Company has filed the present First Appeal No.282 of 2006 on the following grounds :- “a) That the learned Tribunal materially erred in law in awarding the compensation to Respondent No.1 and 2 aggregating in to Rs. 5.15.000 without any basis in law as the assessment was not backed by cogent evidence and was also a violation of the Law laid down by the Hon'ble Apex Court and the Hon'ble High Courts: b) That the Tribunal materially erred in law in ignoring that there was a high degree of contributory negligence on part of the deceased himself who took the vehicle on to the wrong side of the road in overtaking a vehicle and dashed with the vehicle insured with the appellants. c) That the Learned Tribunal materially erred in fixing the monthly earning at Rs. 10,000/- i.e annually Rs. 1,20,000/- and further erred in deducting only one-third from the monthly income. Thus assessment of yearly pecuniary loss at Rs. 80,000/- is faulty and improper. d) It is pertinent to note that the Respondent No.1 admitted in his cross- examination before the tribunal that he was never financially dependent on the deceased. The Respondent No.1 also admitted having received a lot of benefits and financial gains 6/30

1-fa282-06 on account of death of his deceased son. Further the Respondent No.1 is himself earning and drawing a respectable income indicating that no financial loss has been caused to Respondents No. 1 and 2. e) That the Learned Tribunal materially erred in overlooking that the deceased contributed to the accident. The learned Judge ought to have appreciated that a tort-feasor / his heirs in case of death cannot be allowed to take advantage of his own negligence. f) The findings of the learned Judge in para 29 are perverse and illegal and against the basic principles of law. g) That the Learned Tribunal awarded compensation to the tune of Rs. 5.15,000/- which was disproportionately high. h) That the Learned Tribunal has erred in granting excessive amounts under the heads loss to estate, loss of consortium and loss of love and affection” 11. Being dis-satisfied by the quantum awarded, the Original Claimants have filed First Appeal No.551 of 2006, on following grounds:- (a) The learned Judge by awarding less compensation has conferred undue benefit to the Tortfeasors viz. the Respondents for being rash and negligent while driving and thereby causing death of five innocent persons. (b) The inference drawn and the reasons for disbelieving the oral evidence by the learned Judge itself, being without any justification and reasons, is highly erroneous. 7/30

1-fa282-06 (c) The learned Judge has committed grave error in deducting from gross salary entire deductions and thereafter further reducing the net income by 1/3rd amounting to double deduction. (d) The learned Judge has erred in ignoring the ratio laid down by Supreme Court as regards future prospects of higher income, stability of employment, qualifications, longevity of life in the family. (e) The learned Judge has committed grave error in equating proceedings under Section 166 of M.V. Act, with that of proceedings under Section 163A, for the purpose of loss of estate and funeral expenses. (f) The impugned Judgment is illegal, unlawful and not in accordance with the settled proposition of law. SUBMISSIONS OF PARTIES : 12 Ms.Poonam Mittal, made her submissions on behalf of the Appellant – Insurance Company : i). Ms.Mittal submitted that as far as statutory defence of the driving license and breach of policy are concerned, even though the same are taken up in the written statement however she on instructions wants to give up that defence. ii). Ms.Mittal submitted that she has two points of argument, one is of “negligence” and other is “quantum”. iii). Ms.Mittal on the issue of “negligence” submitted that in 8/30

1-fa282-06 the written statement of the Insurance Company a specific averment is made in paragraphs 4 and 6 that negligence was on part of the driver of the Maruti Van. She further submitted that as far as negligence is concerned, the Insurance Company has examined the truck driver of the offending truck. So also the photographer, who had clicked the photographs at the site of the accident was examined. iv). Ms.Mittal further submitted that a state transport bus was standing near the site of the accident and Maruti Van over took the standing bus and in the process the offending truck which came from the opposite direction collided with Maruti Van, therefore it was a sheer negligence on the part of the deceased, who was driving Maruti Van due to which there was unfortunate accident. Ms.Mittal further submitted that MACT Court lost site to this important piece of evidence and erred in holding that the negligence was on part of the driver of the offending truck. v). Insofar as issue of quantum is concerned, Ms.Mittal submitted that MACT Court has rightly held that the salary of the deceased as Rs.10,000/- per month, however, MACT Court erred in not considering that Claimant No.1 i.e. the father of the deceased was not at all dependent on the deceased, as he was a retired person and receiving the pension from his employer. Therefore, Claimant No.1 is not entitled to receive any kind of claim in this claim petition. 9/30

1-fa282-06 vi). Ms.Mittal further submitted that in so far as “Future Prospect” is concerned, the judgment of the Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & others, reported in (2017) 16 SCC 680 has clarified that after 60 years, the claimants are dis-entitle to receive any kind of claim under the head of “Future Prospect”. Ms.Mittal further submitted that Claimant No.1, the father of the deceased was 60 years of age at the time of unfortunate accident and Claimant No.2, mother of the deceased was 54 years of age at the time of accident. vii). Ms.Mittal further submitted that MACT Court without considering settled position of law and the evidence led in the present proceedings, has arrived to incorrect amount of claim, and the same should be reduced. 13. On the other hand, Mr.Tejpal Ingale made submissions on behalf of Claimants:- i). Mr. Ingale submitted that as far as negligence is concerned, the Claimants have very specifically stated in their claim petition and have also led evidence in the form of father of the deceased entering into the witness box and giving his evidence. So also the claimants have relied upon the exhibited documents in the form of FIR, Panchanama, driving license of the deceased and the driving license of the offending truck. 10/30

1-fa282-06 ii). Mr.Ingale submitted that evidence of the driver of offending vehicle, itself shows that it was straight road and from the distance of 600 mtr. Driver of the offending vehicle could see the Maruti Van coming from the opposite direction. It is further stated by the driver of offending truck that his speed was around 30 to 35 Km per hour and it is also stated by the driver that road was bigger than the national highway. iii). Mr.Ingale further stated that FIR recorded by the police supports the case of the Claimant. The said FIR also mentions about the statements of one Mr. Ashok Mane, who has narrated to the police that the accident occurred when he was driving his vehicle and according to him, the accident occurred due to the mistake of the offending truck driver. The said Mr.Ashok Mane also stated that there was a bus standing at the relevant time near the spot of accident, at the bus stop. iv). Mr.Ingale further submitted that as far as the quantum is concerned, MACT Court has not followed the principles laid down by the Supreme Court on the issue of calculations to be made for deciding the quantum. v). Mr.Ingale further submitted that the salary certificate of the deceased, who was Captain with Indian Army, was produced on record and duly exhibited. The said certificate clearly showed that the 11/30

1-fa282-06 deceased was earning about Rs.25,000/- per month. vi). Mr.Ingale further submitted that the age of the deceased has been duly proved, as the death certificate of the deceased was produced on record and duly exhibited. The Claimants have also produced on record SSC certificate of the deceased which shows that the deceased was 29 years of age at the time of the accident. vii). Mr.Ingale further submitted that the age of the dependent parents and their earnings, has no bearing in law, for calculating the compensation amount. viii). Mr.Ingale further referred to Section 166 of the M.V. Act and the Judgments of the Supreme Court passed in Pranay Sethi (supra) and Manasvi Jain vs. Delhi Transport Corporation, reported in (2014) 13 SCC 22, ix). Mr.Ingale also referred to the findings recorded by MACT Court in favour of the Claimants in its paragraph Nos.16 and 17. x). Mr.Ingale referred to the doctrine of last opportunity to avoid the accident. Mr. Ingale further submitted that as per evidence of the driver of the offending truck that from the distance of 600 Mtr, he has seen Maruti Van coming from the opposite direction, therefore Mr.Ingale submitted that he could have avoided the accident. Mr. Ingale submitted that the driver of the offending truck could have reduced his speed by applying the breaks, of his truck, however, the 12/30

1-fa282-06 same was not done. xi). Mr.Ingale submitted that all the persons traveling in the Maruti Van have died except one boy, who was sitting in the dicky of Maruti Van. xii). Mr.Ingale also submitted that the principles of res-ipsa- loquitur is applicable in the present proceedings. He submitted that the Claimants can prove the accident but cannot prove how it happened to establish the negligence on the part of the Respondents. This hardship is sought to be avoided by applying the principles of res-ipsa-loquitur. xiii). Mr.Ingale further relied upon the Judgments of Pranay Sethi (supra) and Sarla Varma vs. DTC reported in (2009) 6 SCC 121 to buttress his submissions. xiv). Mr.Ingale further submitted that the amount as calculated by MACT so far as Future Prospects are concerned, the same should have been done as per the ratio laid down in paragraph 59.3 of the Judgment of Pranay Sethi (supra). xv). Mr.Ingale further submitted that when the income is calculated it always means of receivable minus tax components and if the deceased was permanent employee then the Future Prospects if the deceased is below 30 years would always be 50%. Hence, Mr.Ingale also submitted that multiplier has to be applied based upon 13/30

1-fa282-06 for the age of the deceased and not on the basis of the age of the Claimants. xvi). Mr.Ingale submitted that the First Appeal filed by the Insurance Company should be dismissed and the First Appeal filed by the Claimants should be allowed with interest. ANALYSIS AND CONCLUSIONS :- 14. The impugned award passed by MACT has been challenged by both the parties i.e. the Insurance Company and also by the Claimants. 15. MACT has partly allowed the claim of the Appellants by granting an amount of Rs.5,15,000/-, including the amount of Rs.50,000/- as “no fault liability”, along with with interest @ 9%.p.a. As the issue of statutory defence of breach of policy and not having driving license is given up by the Insurance Company. The issues were answered in favour of the Claimants. A). Rash and Negligent

Driving

: - 16. As far as rash and negligent driving is concerned, to prove the said fact the Claimants have examined Claimant No.1, who narrated the entire evidence as known to him. The said witness was cross-examined by the Insurance Company. In evidence Claimant No.1, brought on record FIR (Exhibit-29). The said FIR recorded the statement of one Mr. Ashok Mane, who’s vehicle was passing by, 14/30

1-fa282-06 had submitted that there was a bus standing on the bus stop near the site of the accident and as the Maruti Van crossed over the standing bus, the offending truck coming from the opposite direction, dashed the Maruti Van. It is further recorded that after the accident, Maruti Van which was going towards north, due to impact turn to south 15 ft. It is further recorded that the size of the road was 34 ft and there were white plates of 5 ft on both the sides. The offending truck which was coming from north to south after the accident had moved towards east by 2 ft. Further Mr.Ashok Mane stated that the accident had occurred due to the negligence of truck driver. The only survivor of the accident Devdatta, also in his statement to the Police, stated that the accident occurred due to the negligence of the offending truck. Further the Claimant No.1 also produced on record Panchanama (Exhibit-30). The said Panchanama recorded that it was the negligence of the offending truck driver, due to which the accident had occurred. The Panchanama also recorded that the head-light the Maruti Van were switch on at the time of accident. The accident had occured at 2 p.m. in the afternoon, as the head-light of the Maruti Van was on, this shows that the deceased had given signal to the offending truck. 17. The evidence led by the Insurance Company, of the driver of offending truck records that from the distance of 600 Mtr. he could 15/30

1-fa282-06 see that Maruti Van was coming from south to north and in a zigzag manner. Further the said evidence recorded that the road was bigger than the national highway. He further stated that the speed of the offending truck was around 30 to 35 km per hour. However, it is seen that there was no statement made in the examination in chief that the driver of the offending vehicle applied breaks so as to make an attempt to slow down or stop the offending vehicle after he saw that Maruti Van is coming towards him in a zigzag manner or gave any kind of signal to the Maruti Van. In the cross-examination the driver of the offending vehicle denied that the bus was standing on the site. So also he denied that Maruti Van over took another Car and dashed the offending truck. 18. The theory that Maruti Van was coming in zigzag manner is not averred in the written statement. So also the evidence that the bus was standing on the bus stop which was taken up in the written statement was denied in the cross-examination. Therefore there is variance between the pleadings and evidence, of the driver of offending truck. 19. Witness No.2 of the Insurance Company who had been on the spot to take photographs has clearly stated that when he visited the site, the vehicles were moved away from the spot of the accident to the side of the road as due to accident these was a traffic issue. 16/30

1-fa282-06 Hence, I hold that the Insurance Company was not able to prove by leading evidence their case of negligence on part of driver of Maruti Van. 20. Taking into consideration the documents on record in the form of FIR, including the statement of Mr.Ashok Mane, who had witnessed the accident, and the statement of Devdatta recorded by the police, who was sitting in the unfortunate Maruti Van, and this coupled with the fact that the driver of the offending truck in his evidence admitted the fact that it was straight road, and from 600 Mtr. he could see the Maruti Van coming in a zigzag manner, and the road was bigger than the national high, his speed being 30 to 35 Km per hour and driver of offending truck not applying the breaks, is enough to prove that the driver of the offending vehicle was negligent and rash while driving the offending truck . 21. Insofar as the doctrine of last opportunity, Mr.Ingale, relied upon the judgment of the Supreme Court in case of Municipal Corporation of Greater Bombay vs. Laxman Iyer & Ors. reported in (2003) 8 SCC 731. Paragraph 7 of the said Judgment reads as under :- “7. At this juncture, it is necessary to refer to the “doctrine of last opportunity”. The said doctrine is said to have emanated from the principle enunciated in Davies vs. Mann (1842) 10 M & W 546, which has often been explained as amounting to a rule that when both parties are 17/30

1-fa282-06 careless the party which has the last opportunity of avoiding the results of the other’s carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but a test of causation. (See Davies v. Swan Motor Co. (Swansea) Ltd., ) (1949) 2 KB 291. Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lords in Volute (1922) 1 AC 129, and Swadling v. Cooper (1931) AC 1, it is no longer to be applied. The sample test is, what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party’s negligence was the proximate cause of the accident, renders it one to be the result of contributory negligence.” (emphasis supplied) 22. In the present proceedings the driver of the truck has admitted that he had seen Maruti Van from the distance of 600 mtr. and he was driving at a speed of 30 to 35 Km per hour, admittedly he could have applied the breaks to slow down his vehicle and or to stop his vehicle. The width of the road was 34 ft. and there was additional 5 ft. side white plate, therefore there was opportunity for him to slow down and go towards his left and avoid the accident. The offending truck was a big vehicle compared to Maruti Van. Therefore, the degree of precautions and responsibilities was more on the offending truck. This coupled with the fact that the lights of Maruti Van were on, at the time of accident, therefore, the findings recorded in the judgment of the Supreme Court in the case of Laxman Iyer & Ors. 18/30

1-fa282-06 (supra) are squarely applicable to the present proceedings and I hold that the driver of the offending vehicle was negligent and rash while driving of the offending vehicle and due to which accident occurred and 5 persons , including the captain Karandikar lost their lives. B). Quantum :- 23. The MACT has granted the total compensation of Rs.5,15,000/- to the claimants in the following manner :- a) Salary per month Rs.10,200/-, around up to Rs.10,000/- per month. b). 1/3 personal deduction Therefore, total Rs.3,333/- per month. Rs.6667/- per month. c) Future Prospects was not granted Nil d). Multiplicands : of ‘12’ was applied. Hence Multiplier Rs.6667/- p. m. x 12 months = Rs.80,004/- per year Rs.80,004 x 12 = Rs.9,60,048/-. e). Deduction - payment of Army group insurance fund Rs.4,50,000/-.

Therefore, deduction = Rs.9,60,048/- - Rs.4,50,000/- = Rs.5,10,048/- f). Loss of estate Rs.2,500/- g). Funeral Expenses Rs.2,000/- Total Rs.5,14,500/- 19/30

1-fa282-06 24. In the present proceedings, the Claimants have produced on record the last drawn salary certificate of the deceased. The said certificate shows that basic pay of the deceased was Rs.10,200/- and apart from that he was entitled for Rank Pay, Special Dearness Allowance (Spl DA), therefore total sum payable is Rs.15,954/- p.m. 25. It can be seen that the MACT has not taken into consideration the amount under income head viz, Dearness Allowance, provident fund, in the form of DSO fund, (AOB fund) and Spl. Distant Allowance in addition of basic pay, after subtraction amount of Rs.30. Hence Net Salary receivable as last drawn salary to the deceased was Rs.21,054/- p.m. 26. Supreme Court in the case of Manasvi Jain vs. Delhi Transport Corporation Limited, reported in (2014) 13 SCC 22 held in paragraphs Nos. 8 and 9, as under:- “8. This Court in Shyamwati Sharma v. Karam Singh (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 : (SCC p. 380, para 9) "9... while ascertaining the income of the deceased,any deductions shown in the salary certificate 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”. (emphasis supplied) 9. In the present case, there Is no dispute about of the salary of the deceased. As per salary certificate, his monthly income, and deductions are 20/30

1-fa282-06 as under :- Monthly income Rs.26,950.00 Deductions

Provident fund 8000.00 House Rent 525.00 GIS 120.00 Income tax 2500.00 So, from the above table, it is clear that except an amount of Rs.2500 towards income tax, rest of the amounts were voluntarily contributed by the deceased for the welfare of his family. Considering the decision of this Court in Shyamwati Sharma (2010) 12 SCC 378, in our opinion, except contribution towards income fax, the other voluntary contributions made by the deceased, which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to decide his net salary or take-home salary. Hence, the take-home salary of the deceased comes to Rs 24,450 which can be rounded to Rs 25,000”. [Emphasis Supplied] Therefore, Supreme Court in clear terms in the above Judgment held that deductions towards GPF, LIC, repayment of loan etc. should not be excluded from the income of the deceased while calculating the income. 27. Considering the law as laid down by Supreme Court Manasvi Jain (supra) hence, in the present proceedings I hold that the salary of the deceased was Rs.21,054/- per month. 21/30

1-fa282-06 Personal Deductions

(2009) SCC 121, I hold that personal deduction should be at the rate of 1/3. Since the salary of deceased is considered as Rs.21,054/- there could be deduction of Rs.7,018/- (1/3). Hence, after deduction the Net salary of the deceased is considered as Rs.14,036/- per month. Future Prospects

: 29. The Claimants were able to prove that the deceased was 29 years of age at the time of his death in the accident by producing on record the S.S.C. certificate. The Supreme Court in the Judgment of Pranay Sethi (supra), IN Paragraph 59.3 held as under “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 of 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”. [Emphasis Supplied] 22/30

1-fa282-06 Therefore, considering the age of the deceased as 29 years and his salary after deduction as Rs.14,036/- per month, additional 50% increase in the salary on account of Future Prospects comes to Rs.7,018/-. Therefore, the total income of the deceased would be 14,036/- + Rs.7,018= Rs.21,054/- per month. Multiplier : 30. As the salary of the deceased is considered as Rs.21,054/- per month. Yearly income would be Rs.21,054 x 12 = Rs.2,52,648/- per year. The tribunal has considered multiplier of “12”, based on the age of dependent parents. Supreme Court in case of Sarla Verma (Smt.) & Ors. (supra) has held in paragraph 42 as under : “We, therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas), Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M- 14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years”. (Emphasis supplied) Considering the Multiplier formula laid down by the Supreme Court and considering the age of the deceased as 29 years at the time of his death, he falls under the category of 25 to 30, 23/30

1-fa282-06 therefore the multiplier of “17” will be applicable. The amount of Rs.2,52,648/- per year calculated above has to be multiplied by “17”. Hence, the said amount would be Rs.42,95,016/-. Army Group Insurance Fund:- 31. The MACT has deducted sum of Rs.4,50,000/- which was received by the parents of the deceased after the death of their son. The said amount of Rs.4,50,000/- is towards the group insurance fund. In the Judgment of Helen C. Rebello (Mrs.) & Ors. vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90, Supreme Court in paragraphs Nos.32 and 35 held as under. “32. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the "pecuniary advantage" which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious 24/30

1-fa282-06 illness, including even death by accident, through train, air flight not involving a motor vehicle. It would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental. If the words "pecuniary advantage" from whatever source are to be interpreted to mean any form of death under this Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the “pecuniary advantage" resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets moveable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states: 35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned, by an employee for the benefit of his family in the form of his contribution in the service in terms of 25/30

1-fa282-06 the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No corelation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no corelation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter-se, between them and not to which there is no semblance of any corelation. The insured (deceased) contributes his own money for which he receives the amount which has no corelation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.” (Emphasis supplied) I hold that such contractual amount under group insurance could not have been deducted. Therefore, the said sum of 26/30

1-fa282-06 Rs.4,52,000/- should be added to the total sum of Rs.42,95,016/-. Thus the total amount payable would be Rs.47,47,016/-. Conventional Head :

- 32.1 Consortium for the father and mother of the deceased was not granted by the MACT. The Supreme Court in the judgment of Pranay Sethi (supra) has held that the amount of Rs.40,000/- should be granted under the head of consortium. Further in the Judgment of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram & Ors. reported (2018) 18 SCC 130 it is held that the amount of Rs.40,000/- on account of consortium should be granted to each of the Claimants. 32.2 Supreme Court in the case of Pranay Sethi (supra) has further clarified that there has to be 10 % increase after every 3 years on the amount of Rs.40,000/-. Since the Judgment in case of Pranay Sethi (supra) was delivered on 31 October, 2017, the amount of Rs.40,000/- is considered as on that date. The present proceedings are decided today in the month of November, 2023, which is 6 years after the judgment in case of Pranay Sethi (supra) delivered by the Supreme Court, hence there will be rise of 10% after every 3 years. Therefore, on the amount of Rs.40,000/- ; an amount of Rs.8,400/- more would be payable to each of the Claimants (father and mother of the deceased). Therefore, on account of consortium total amount 27/30

1-fa282-06 of Rs.48,400/- would be payable to each of the Claimants. 32.3 On account of Loss of Estate, the MACT had granted Rs.2,500/-. In the Judgment of Pranay Sethi (supra) Supreme Court has granted Rs.15,000/- plus 10% increase on every 3 years. Since the present proceedings are decided today after a gap of 6 years after the delivery of judgment in case of Pranay Sethi (supra) by the Supreme Court, the loss of estate in present proceedings is calculated at Rs.15,000/- plus 10% rise on Rs.15,000/- for every 3 years. Therefore, the total amount of Rs.18,000/- on the account of loss of estate, will be payable to each of the Claimant. 32.4 As far as funeral charges are concerned, the MACT Court has granted a meagre sum of Rs.2,000/-. The Supreme Court in the case of Rajwati and Ors vs. United India Insurance Company Limited & Ors. reported in 2022, ACJ 2754 has granted funeral expenses of Rs.20,000/-. Paragraph 22 of the said judgment reads as under :- “22. The deceased left behind five dependants, i.e., the present Appellants. In view of this, the grant of Rs. 40,000/- by the Learned Tribunal towards loss of consortium is insufficient in our view, and deserves interference. A three-Judge Bench of this Court in United India Insurance Co. Ltd. v. Satinder Kaur 2020 ACJ 2131 (SC), has awarded loss of spousal consortium at the rate of Rs.40,000/- and for s loss of parental consortium to each child at the rate of Rs.40,000/-. The compensation under these heads also needs to be increased by 10 per cent after every 28/30

1-fa282-06 three years. Accordingly, the grant of Rs. 40,000/- towards loss of consortium is increased to Rs. 44,000/- to each Appellant, amounting to a total of Rs. 2,20,000/-. Along with this, Rs. 15,000/- each under the heads of ‘funeral expenses’ and ‘loss of estate’ is also very meagre. In our considered opinion, an amount of Rs. 20,000/- is liable to be paid towards funeral expenses. Similarly, award of Rs. 15,000/- towards ‘loss of estate’ is liable to be increased to Rs. 20,000/-.” (Emphasis supplied) Therefore, I grant a sum of Rs.20,000/- on account of funeral expenses. 33.5 Consequently, the total amount payable on account of Conventional Head would be Rs.1,36,800/-. Total Amount Of Compensation

1-fa282-06 No.551 of 2006 stands partly allowed and appeal filed by the Insurance Company i.e. First Appeal No.282 of 2006 is hereby dismissed. There shall be no order as to costs. 38. It is submitted that the Insurance Company has already deposited Award amount in the concerned MACT. If the Claimants have already withdrawn certain amount from the amount deposited, the said amount already withdrawn should be adjusted while allowing the Claimants to withdraw the claim amount as decided by me today. The said amount should be granted as per the ratio laid down in the impugned judgment dated 28 September 2005. (RAJESH S. PATIL, J.) 30/30