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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU w
MA No. 506/2011
United India Insurance Co. Ltd.
…..Appellant(s)/Petitioner(s)
Through: Mr. Vishnu Gupta, Adv.
Ratna Devi 2. Mohit Rathore 3. Ashish Rathore 4. M/s Oriental Public School th. its Principal Trikuta Nagar, Jammu .…. Respondent(s)
Through: Mr. A. A. Hamal, Adv. for Nos. 1 to 3
Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
This appeal arises out of award dated 31.05.2011 passed by the Motor Accidents Claims Tribunal, Kishtwar (for short the Tribunal) in file No. 94/Claim, titled, Ratna Devi and others vs United India Insurance Co. Ltd and another. 2. The appellant has impugned the award on the ground that the deceased was a Government employee and after the demise of a Government employee, his legal heirs are entitled to full salary for seven years and further that the income tax was not deducted from the earnings of the deceased, as such, the award is required to be set aside. 3. Mr. Vishnu Gupta, learned counsel representing appellant/insurance company has reiterated the submission made in the memo of appeal. 4. On the contrary, Mr. A. A. Hamal learned counsel representing claimants/respondent Nos. 1 to 3 submits that compensation on account of consortium has not been awarded to the minor son of the deceased and also insufficient compensation on account of spousal consortium has been 26
MA No. 506/2011
awarded to the wife of the deceased. He further submits that the compensation awarded on account of loss of estate and funeral expenses is not in accordance with law. 5. Heard and perused the record. 6. The record depicts that respondent No. 1-wife, respondent No. 2-son and respondent No. 3-minor son filed the claim petition for grant of compensation on account of death of Dalip Kumar Rathore in a motor vehicle accident on 23.11.2005. The notice was issued to the appellant/insurance company and owner of the offending vehicle i.e. respondent No. 4. 7. After the pleadings of the parties, the learned Tribunal framed the following issues: 1. “Whether deceased Daleep Kumar Rathore S/o Sham Lal while travelling by vehicle (Maruti Car) bearing No. JK02G/0890 met with an accident on 23-11-2005 at near Soie Gwari-Karara and died due to rash and negligent driving of the driver of offending vehicle ....OPP 2. In case if issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom?......OPP 3. Whether the offending vehicle (Car) bearing registration No. JK02G-0890 was being plied by an un-authorized person, and was not holding a valid and effective driving license at the time of accident, if so what is its effect? OPR-1. 4. Whether offending vehicle was being plied in violation of terms and conditions of Insurance Policy? OPR-1 5. Relief.”
The appellant/insurance company filed their response, whereby it has been stated that the respondents were getting full salary of the deceased for seven years, as such, there was no loss of monetary income up to next seven years. The respondents examined respondent No. 1 and the
MA No. 506/2011
witnesses, namely, Ajeet Kumar, Sewa Ram and Ayaz Ahmed in support of their claim. The insurance company as well as the owner of the offending vehicle i.e. respondent No. 4 did not choose to lead evidence. After completion of the evidence, the learned Tribunal has awarded compensation in the following manner: (i) Compensation on account of total future loss of dependency:
Rs. 24,05,832/- (ii) compensation on account of loss of consortium to the widow
Rs. 5,000/- (iii) Loss of Estate: Rs. 5,000/- (iv) Funeral expenses : Rs. 5,000/- Total: Rs. 24,20,832/-
The first contention of Mr. Vishnu Gupta, learned counsel for the appellant is that the learned Tribunal has not taken note of the objection raised by the appellant that the respondents 1 to 3 were entitled to get full salary for seven years. A perusal of the record reveals that the appellant/insurance company never cross examined the respondent No. 1 who appeared as own witness in respect of the fact as to whether she had received any compensation or not. 10. Be that as it may, this contention has already been taken note of by this Court in case, titled, New India Assurance Co. Ltd. v Soma Devi, 2022 ACJ 2290 as such, this contention is rejected. The other contention raised by Mr. Gupta is in respect of the non deduction of the income tax. In this context the statement of respondents’ witness, namely, Ayaz Ahmed is relevant. He has stated that in the month of October, 2005, the monthly salary of the deceased was Rs. 17,795/-. Learned counsel for the appellant
MA No. 506/2011
has provided the slabs of the income tax as were applicable in the financial year 2005-2006. 11. The learned Tribunal has rightly enhanced the monthly income of the deceased by 30% and accordingly, the enhanced monthly salary of the deceased has been rightly assessed as Rs. 23,133/- and annual enhanced salary would be Rs. 2,77,596/-. 12. No income tax was payable up to an income of rupees one lac and 10% income tax was payable up to rupees 1.5 lacs and thereafter, 20% income tax was payable from 1.5 lacs to 2.5 lacs and after amount of 2.5 lacs, income tax was payable at the rate of 30%. Thus, the total tax payable by the deceased was Rs. 33,279/- and after deducting the same, the net income of the deceased comes around to Rs. 2,44,317/-. After deducting one-third of the income on account of personal expenses and applying the multiplier of 13, the total compensation payable on account of loss of dependency would be Rs. 21,17,414 (1,62,878x13). 13. Further, this Court finds that a sum of Rs. 15,000/- each was required to be paid under the head of funeral expenses and loss of estate. Loss of consortium awarded to wife/respondent No. 1 is also required to be paid for an amount of Rs 40,000/- and the respondent No. 3, being the minor son is also entitled to parental consortium for an amount of Rs. 40,000/-. 14. Thus, total amount of compensation on account of different heads would be as under: Loss of dependency:
Rs. 21,17,414/- Loss of consortium to respondent No. 1: Rs. 40,000/- Loss of consortium to respondent No. 3: Rs. 40,000/- Loss of estate:
Rs. 15,000/-
MA No. 506/2011
Funeral expenses:
Rs. 15,000/- Total
Rs. 22,27,414/-
The excess amount deposited by the appellant/insurance company be released in favour of the appellant and the modified award amount minus interim award, if already released, be released in favour of the respondents 1 to 3. 16. Accordingly, the award is modified in the above said terms. 17. Record of the Tribunal be sent back.
(RAJNESH OSWAL)
JUDGE
Jammu 24.08.2023 Rakesh
Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No