Commissioner of Income TAx vs. Ongole Milk Line Pvt Ltd

IN THE HIGH COURT OF JHARKHAND AT RANCHI Misc. Appeal No. 189 of 2014 ... Divisional Manager, National Insurance Company Ltd. Divisional Office, Ram Mandir, Sector -1, Bokaro Steel City, PO & PS-Bokaro Steel City, District-Bokaro duly represented through its Assistant Manager, National Insurance Co. Ltd., Jharkhand Legal Cell, Kutchery Road, Ranchi ....... .....Appellant Vrs. 1. Himanshu Ranjan (minor) 2. Rahul Kumar 3. Nagendra Kumar Singh 4. Babunand Upadhyay ...... Respondents CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR For the Appellant : Mr. Pratyush Kumar. For the Resp. Nos. 1 and 2 : Mr. Saibal Kr. Laik, Adv. …. I. A. No. 2832 of 2014 09/27.02.2018 Heard learned counsel for the appellant and learned counsel for the respondent nos. 1 and 2. In spite of paper publication, respondent nos. 3 and 4 have not entered appearance. The instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 35 days in preferring the present appeal. Learned counsel for the Claimants/respondent nos. 1 and 2 opposes the prayer. Having regard to the reasons stated in the instant interlocutory application, delay in preferring the appeal is hereby condoned.

I. A. No. 2832 of 2014 stands allowed. Misc. Appeal

No. 189 of 2014 With the consent of both the parties, the matter is taken up to be decided on merit. The present appeal has been filed by the Insurance Company. It appears that claimants had filed claim petition being TMV No. 87 of 2008 for grant of compensation under Section 166 of the Motor Vehicle Act, 1988 on account of death of their father namely Sachidanand. The brief facts of the case is that when the deceased- Sachidanand was returning from 'G' shift duty from Bokaro Steel Plant by his scooter

bearing no. BEV 7936, a dumper/truck bearing no. BRY-7675, coming rashly and negligently, dashed the deceased's scooter from behind, as a result of which he fell down and got head injury and thereafter the said truck ran over him due to which he died on the spot. An FIR has been lodged at B. S. City Police Station being B. S City P. S. Case No. 463 of 2007 under Sections 279/304(A) of the Indian Penal Code against the driver of the offending dumper/truck bearing Regd. No. BRY-7675 on the basis of fardbeyan of Om Prakash Gupta. On account of the above accident, claimants/respondents herein filed a claim petition in which learned Tribunal, after considering the evidence and by applying various parameters, has granted Rs. 39,47,840/- along with simple interest @ 6 % per annuam from the date of the order i.e. 10.01.2014. The Insurance Company/appellant herein has challenged the said Award on two counts. Firstly, driver was not having a driving license and secondly on the issue of quantum of compensation. So far as driving license is concerned, learned Tribunal has discussed the same at para-15 of its Award. The appellant has neither filed any petition for production of driving licence nor any evidence has been laid to prove that driver was not having the license. Since Insurance Company claimed that driver was not having the driving license, onus was upon the Insurance Company to prove the same. This fact has been dealt with in detail by the learned Tribunal and the prayer made by the Insurance Company has been rejected. Accordingly, the said issue has been settled in favour of the claimants. So far as quantum of compensation is concerned, learned Tribunal has considered the gross salary of the deceased of Rs. 4,60,771/-, Age of the Deceased-47 years and number of dependent two. So far as the dependents are concerned, it is not disputed by the Insurance Company. So far as salary part is concerned, Insurance Company has challenged the said on the ground that amount towards Income Tax has not been deducted from the gross salary of the deceased. For that purpose, the salary slip of the deceased, which is Annxure-2 of the writ petition, has been placed before me. From perusal of the salary slip of the deceased, salary as Rs. 4,60,771/-, value of perquisites was Rs. 24,151/- and thus gross salary was Rs. 4,84,922/-. At this stage, it is

relevant to take note of the fact that the judgment rendered by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Indira Srivastava reported in 2008(2) SCC 763 in which it has been held that gross salary has been taken into account and not the net salary. So far as the deduction of the Income Tax amount is concerned, it has been held in the judgment rendered by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in AIR 2017 SC 5157 that tax amount has to be deduced from the gross salary. From perusal of the salary slip of the deceased, it appears that Income Tax Amount is Rs. 66,240/- and the same has to be deducted from the gross salary. Thus the salary, which can be calculated for the purpose of compensation, comes to Rs. 4,18,682/-, but the learned Tribunal has not added future prospects, which is 25% as per the age of the deceased by the principal laid down by the Hon'ble Supreme Court . So far as the multiplier of 13 is concerned, the same is not in dispute. Thus, if the gross salary is taken for calculation after deducting the Income Tax amount, there will be no substantial chance in the quantum of compensation and it will remain same as awarded by the learned Tribunal. So far as the quantum of compensation is concerned, claimants have not filed cross objection. Therefore, it appears that they are satisfied with the quantum of compensation. Having considered the submissions made and the principal laid by the Hon'ble Supreme Court in the aforesaid judgments, I find no infirmity in the Award of the learned Tribunal and the same is upheld. There will be no order as to cost. Accordingly, the instant Misc. Appeal is disposed of. I.A No. 4413 of 2016 also stands disposed of.

(Rajesh Kumar, J.)

Kamlesh/