Bombay High Court
United India Insurance Co. Ltd., Thr Its … vs Puja Namdeo Ghuge And Ors on 21 April, 2025
2025:BHC-AUG:11430
FA-3593-19 and FA-888-2003.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3593 OF 2019
United India Insurance Company Ltd.,
Through its Authorized Signatory / Divisional Manager,
Divisional Office No.I, H. No.4/5/76, V. P. Chowk,
Osmanpura, Aurangabad
Tq. & Dist. Aurangabad - 431 001 ....Appellant
[Original Respondent No.4]
VERSUS
1. Smt. Puja Namdeo Ghuge
Age: 22 Years, Occupation : Household
2. Praniti D/o Namdeo Ghuge
Age : 2 Years, Occu. Nil
[Being Minor U/g of her mother
i.e. Respondent No.1]
3. Smt. Pushpabai Jalindar Ghuge
Age : 52 Years, Occu. Nil
All R/o. Ghotan, Tq. Shevgaon,
Dist. Ahmednagar
4. Rameshwar Dadasaheb Shelke
Age : 35 Years, Occu. Driver
R/o. Kare Takali, Tq. Shevgaon,
Dist. Ahmednagar
5. Dvarka Kakasaheb Mogal
Age : Major, Occu. Owner,
R/o. Nilajgaon, Tq. Paithan,
Dist. Aurangabad
6. Kakasaheb Janardhan Mogal [Dead]
.....Respondents
[Resp. Nos.1 to 3 - Orig. Claimants &
Resp. No.4 to 6-Org. Resp. No.1 to 3]
.....
Appearance :
Mr. S. R. Bodade, Advocate for the Appellant - Insurance Company
Mr. R. B. Dhakane, Advocate for Respondent Nos.1 to 3
Mr. M. B. Ubale, Advocate for Respondent Nos.4 and 5
.....
1
FA-3593-19 and FA-888-2003.odt
AND
FIRST APPEAL NO.888 OF 2023
1. Smt. Puja Namdeo Ghuge
Age - 20 years, Occup - Household,
R/o Ghotan, Taq - Shevgaon,
Dist - Ahmednagar
2. Kum. Praniti Namdeo Ghuge
Age - 11 months, occup - ,
R/o Ghotan, Taq - Shevgaon,
Dist - Ahmednagar.
[U G of the Appellant No.1 ]
3. Smt. Pushpabai Jalindar Ghuge
Age - 50 years, occup - Nil,
R/o Ghotan, Taq - Shevgaon,
Dist - Ahmednagar. .... Appellants
[Orig. Claimants]
VERSUS
1. United India Insurance Company Ltd.
Through its Manager,
Osmanpura, Aurangabad
2. Rameshwar Dadasaheb Shelke
Age - 34 years, Occup - Driver,
R/o Karhe Takali, Taq Shevgaon,
Dist - Ahmednagar
3. Smt. Dwarka Kakasaheb Mogal
Age - Major, Occup - Owner,
R/o Nilajgaon, Taq - Paithan,
Dist. - Aurangabad
4. Shri. Kakasaheb Janardhan Mogal [died]
[Through Legal heir, i.e. respon. No.3] .....Respondents
[Orig. Respondents]
.....
Appearance : -
Mr. R. B. Dhakane, Advocate for the Appellants
Mr. S. R. Bodade, Advocate for Respondent No.1
Mr. M. B. Ubale, Advocate for Respondent Nos.2 and 3
.....
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CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 02/04/2025
PRONOUNCED ON : 21/04/2025
COMMON JUDGMENT :
–
1. Both the Appeals are filed under Section 173 of the Motor
Vehicles Act, 1988 [hereinafter referred to as the ‘M.V. Act‘]. The
First Appeal No.3593/2019 is filed by the Insurance Company
against the Judgment and Order / Award dated 27/03/2019, passed
by the learned Motor Accident Claim Tribunal, Aurangabad,
[hereinafter referred to as the ‘learned Tribunal’] in the Motor
Accident Claim Petition [For short the ‘MACP’] No.407/2018,
partly allowing the MACP and directing the Insurance Company,
Owner and Driver to pay the compensation of Rs.77,28,789/-
[Rupees Seventy Seven Lakhs Twenty Eight Thousand Seven
Hundred Eighty Nine Only], jointly and severally to the Claimants
with interest @ 9% from the date of filing of the Claim Petition till
its realization. The First Appeal No.888/2023 is filed by the
Claimants for enhance compensation. Common submission are
advanced by both the sides. Hence, both the Appeals are decided
by this Common Judgment. The parties are referred as per their
nomenclature / position in the MACP.
2. The facts giving rise to the present Appeals are as under :-
[I] The Claimants filed the above referred MACP before the
learned Tribunal with the contention that, they were the widow,3
FA-3593-19 and FA-888-2003.odtminor daughter and mother, respectively of Namdeo Jalindar
Ghuge [hereinafter referred to as the ‘Deceased’]. They were
resident of Village Ghotan, Taluka Shevgaon, District Ahmednagar.
The Deceased was working in the Central Reserve Police Force
[hereinafter referred to as ‘CRPF’] at Srinagar, Jammu and
Kashmir, having monthly salary of Rs.42,619/-. On 12/05/2018,
when the Deceased and his friend were returning to the Village on
a motorcycle from Paithan to Shevgaon road in moderate speed
from the correctside of the road and reached near Open Prison,
Paithan around 04:30 p.m., a Tractor bearing No. MH-20-CR-4863,
which was coming from the opposite direction in a high speed and
in rash and negligent manner, gave dash to the motorcycle, on
which, the Deceased and his friend were travelling. Due to the said
motor vehicular Accident, the Deceased and his friend succumbed
to the injuries. The Accident was reported to the Paithan Police
Station and Crime No.165/2018 came to be registered for the
offence punishable under Sections 279, 304-A of the Indian Penal
Code, 1860 [hereinafter referred to as ‘I.P.C‘] and Section 134 /177
of the M.V. Act against the Driver of said Tractor.
[II] The Claimants being the Dependents/Legal Representatives
of the Deceased, claimed the compensation of Rs.1,00,00,000/-
[Rupees One Crore] against the Insurance Company, the Owner and
the Driver of the said Tractor. The MACP was resisted / contested
by the Insurance Company by filing Written Statement at Exhibit-
20 and by the Owner and Driver of the said Tractor by filing joint
Written Statement at Exhibit-27. They denied the case of
Claimants put-forth before the learned Tribunal. They denied the
involvement of the said Tractor in the Accident on the ground that,
the Crime was registered against the unknown vehicle. They
denied the rash and negligent driving of the said Tractor. They
denied the income of Deceased and prayed to dismiss the MACP.
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[III] The learned Tribunal framed the issues at Exhibit-18. In
support of the MACP, the widow of Deceased examined herself by
filing Evidence Affidavit at Exhibit – 23. She was cross- xamined by
the learned Advocate for the Insurance Company and the learned
Advocate for the Owner and Driver of the said Tractor. The
Claimants brought on record the Police Papers, the copies of
Registration Certificate and Insurance Certificate of the Tractor
and the copy of Driving Licence of the Tractor Driver. The
Claimants examined the person from the Office of Director, CRPF,
Delhi as Witness No.2 at Exhibit – 46 in respect of Service details of
the Deceased, who was cross-examined by the learned Advocate for
the Insurance Company. The copies of Service Papers of the
Deceased were brought on record. The learned Tribunal decided
the MACP by the impugned Judgment and Award.
3. Heard the learned Advocate for the Insurance Company, the
learned Advocate for the Claimants and the learned Advocate for
the Owner and Driver of the said Tractor. Perused the evidence
available on record.
4. It is submitted by the learned Advocate for the Insurance
Company that, the widow of Deceased was not the eyewitness to the
Accident and the Claimants did not examine the eyewitness to the
Accident. The involvement of the said Tractor, which was insured
with the Insurance Company, was in dispute. The Report was
lodged against the unknown vehicle. It was a hit and run case. The
Service Papers brought on record by the witness examined by the
Claimants, were not the Original and Certificate under Section 65
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[B] of the Indian Evidence Act, 1872 [hereinafter referred to as
‘the Evidence Act‘] was not brought on record. The Claimants
received the amount from the Employer from the Risk Fund, GIS
and Leave Encashment, and that amount ought to have been
considered and deducted by the learned Tribunal from the
compensation amount. Witness No.2 examined by the Claimants
was not authorized to depose before the learned Tribunal. The Last
Pay Certificate of the Deceased was of the period after the death
and, therefore, it will not be helpful to the Claimants. The Deceased
was not holding a valid and effective Driving Licence and was not
wearing helmet at the time of Accident, as required under the
provisions of the M.V Act and, therefore, the Deceased had
contributed to the Accident. The witnesses, whose statements
were recorded by the Police, were the interested witnesses. The
interest awarded by the learned Tribunal was on higher side. The
defence of the Insurance Company was curtailed by not allowing
the examination of the Investigating Officer. Hence, the Appeal
filed by the Insurance Company be allowed and the Appeal filed by
the Claimants be dismissed. In support of his submissions, he
relied on the Judgments, which are considered in the later part of
this Judgment.
5. It is submitted by the learned Advocate for the Claimants
that, the Insurance Company failed to prove that, the Accident was
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the result of contributory negligence. Only averments are not
sufficient and no evidence was led by the Insurance Company. The
Claimants have established their case by examining the witness.
The Accident was between [2] two vehicles and the Deceased was a
third party and so, non wearing of helmet and no Licence with the
Deceased cannot be the issues. The Service Papers brought on
record were the Public Documents and were proved by examining
the witness. No objection was raised when the said documents
were exhibited. The learned Tribunal ought not to have deducted
the Professional Tax from the salary of Deceased and have
deducted more amount towards Income Tax from the actual
amount. The Consortium is not granted to the Claimants. Hence,
the Appeal filed by the Claimants be allowed and the Appeal filed by
the Insurance Company be dismissed . In support of his
contentions, he relied on the Judgments, which are considered in
the later part of this Judgment.
6. It is submitted by the learned Advocate for the Owner and
Driver of the said Tractor that, the said Tractor was validly insured
with the Insurance Company and the same is clear from the
observations made in the impugned Judgment and Award.
7. Before adverting to the facts, circumstances and the evidence
in the case at hand, the Judgments cited by both the sides are
considered.
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[I] Judgments cited by the learned Advocate for the Insurance
Company
[a] SIBY Paul Vs. Praveen Kumar ; LAWS [KER] – 2008-9-56
dated September 03, 2008, wherein, the provision of Section 129 of
the M.V. Act regarding wearing of protective head gear by those
riding two wheeler is considered. It is observed that, it was for the
learned Tribunal to consider whether in a case of Claim of
compensation for death or injury of Drivers or Pillion Riders of two
wheelers they were wearing helmet at the time of Accident and if
not whether wearing of helmet would have prevented the death or
injury or reduced the impact of the injury and if the same should be
reckoned as an aspect of contributory negligence for reducing the
compensation amount. Any claim made by Riders about wearing of
helmet at the time of Accident should be critically examined and if
found bogus, the same should be rejected. It is further observed
that, in fact the want of helmet for the Rider may not be
contributory to the Accident. However, the use of helmet would
prevent Head Injury or at least reduce the impact of the injury in
the event of Accident for the Driver and Pillion Rider of the bike or
two wheeler.
[b] Meera Sidharth Kambli Vs. Viraj Ekawade ; LAWS [BOM]-
2015-4-59 dated April 18, 2015, wherein, the negligence of Driver
of the vehicle involved in the Accident was not proved and, the
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FA-3593-19 and FA-888-2003.odt
decision of the learned Tribunal holding that, the Claimant was not
entitled to receive any compensation, was upheld.
[c] Pukh Raj Bumb Vs. Jagannath Atchut Naik ; LAWS [BOM]-
2013-7-46, wherein, the Claimant had miserably failed to prove
that, the Accident occurred due to rash and negligent driving of the
car involved in the Accident and it was held that, the Claimant was
not entitled to receive any compensation on the ground of injuries
resulting in permanent disability. It is also observed that, strict
proof of the Accident was not required to be given by the Claimant
and the Claimant can prove the case by preponderance of
probability.
[d] New India Assurance Company Ltd. Vs. Ashalata Suryakant
Patil and Others, in First Appeal No.2829/2015 [Unreported],
wherein, the principles applicable to the cases for compensation
under the M.V. Act came to be reiterated as ; [i] Only on account of
technicalities the Claim Petition cannot be defeated. [ii] Strict proof
of the Accident by particular vehicle in a particular manner is not
required. [iii] Standard of proof beyond reasonable doubt cannot be
applied. [iv] Evidence is to be appreciated by applying the principle
of preponderance of probability. [v] Absence of name of Driver and
number of motor vehicle involved in the Accident, is not fatal in
every case. [vi] Statement of witness recorded under Section 161
of the Code of Criminal Procedure could not be read, and therefore,
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no relevance or reference can be attributed to it to accelerate the
claim canvassed. On the facts of the case, it was held that, the
involvement of offending vehicle in the Accident was not
established.
[e] Shabbeer Khan Vs. Gaurav Sharma and Another; 2015 [4]
T.A.C. 439 [Raj.], wherein, by considering the delay in lodging the
FIR, it was found that, the explanation for delay given by the
Claimant was not acceptable, admission of offence by the Owner of
car was not held to be of any assistance to the Claimant and it was
held that, the finding of Criminal Court was not binding upon the
learned Tribunal and the Claimant therein failed to prove that the
Accident occurred with a particular offending vehicle.
[f] Bajaj Allianz General Insurance Co. Ltd., Aurangabad Vs.
Meera W/o Raju Choudhary and Others ; 2014 [6] Mh.L.J., wherein,
the Appeal filed by the Insurance Company was allowed, as
Claimants therein failed to establish the involvement of the vehicle
insured with the Appellant, in the Accident.
[g] Faridabegum S/o Shaikh Yousuf Vs. Daulat Khan S/o Sardar
Kjan [died] through L.Rs. ; 2014 [6] Mh.L.J., wherein, it was
observed that, the involvement of the Truck in the Accident was
not proved.
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[h] Anil and Others Vs. New India Assurance Company Ltd and
others; 2018 [5] Mh.L.J, wherein, it is observed that, the learned
Tribunal failed to notice crucial aspects of the case which had
bearing on the question as to whether the death of Deceased
therein was caused as a result of the Accident caused by the
Tractor. Each of the circumstances relied upon by the High Court
were germane to the ultimate conclusion that a false case was set
up to support a Claim for compensation and the Appellants were
not able to displace the careful analysis of the evidence by the High
Court and the findings, which were arrived at.
[i] Noorjadi Khatoon and Another Vs. Pintu Yadav and Others ;
2015 [3] T.A.C 496 [Del.], wherein, it was held that, the amount
paid by the employer under any group personal Accident policy
towards Accidental death was liable to be deducted from the
amount of compensation.
[j] Oriental Insurance Co. Ltd. Vs. Meena Variyal and Others, in
Civil Appeal No.5825/2006 decided on 02/04/2007, wherein, the
Regional Manager of the Company, which was the Owner of vehicle,
was himself driving the vehicle of the Company and during the
course of it, he died in an Accident and the point for consideration
was whether the Accident took place due to his negligence or
otherwise. It is observed that, although being the beneficent peace
of legislature, the learned Tribunal may follow summary
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procedure, but should not ignore basic principles of law. In the said
case, the Claimants failed to implead the Driver of vehicle and
failed to file documentary evidence regarding pay of Deceased. The
Appeal was allowed and the Appellant was exonerated from the
liability to pay the compensation.
[II] Judgments cited by the learned Advocate for the Claimants
[a] Sunita and Others Vs. Rajasthan State Road Transport
Corporation and Anr. ; AIR 2019 Supreme Court 994, wherein, it is
observed that, while dealing with the Claim Petition under the M.V.
Act, the learned Tribunal would not be strictly bound by the
pleadings of the parties. The standard of proof to be borne in mind
must be of preponderance of probability and not the strict standard
of proof beyond all reasonable doubts, which is followed in criminal
cases.
[b] Sh. Fakir Chand Taneja Vs. Oriental Insurance Co. Limited ;
LAWS [SC]-2022-9-221, wherein, the salary of Deceased was
considered by the learned Tribunal without deduction of income
tax. In the said case, the learned Tribunal had taken into
consideration only the basic salary and ignored all the Allowances,
such as, Conveyance Allowance, House Rent Allowance, etc. It was
observed that, the deductions made by the learned Tribunal were
not at all justified except the deduction of driver assistance. The
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monthly income of the Deceased therein was considered after
deducting the income tax and the amount payable as driver
assistance.
[c] Geeta Dubey Vs. United India Insurance Company Limited ;
AIR 2025 Supreme Court 386, wherein, it is observed that, when
the Accident or involvement of vehicle is disputed, the Claimant is
only expected to prove the same on preponderance of probability
and not beyond reasonable doubt.
8. Coming to the case on hand, one of the issues framed by the
learned Tribunal was in respect of rash and negligent driving of the
vehicle bearing No. MH-20-CR-4863 i.e. the Tractor and death of
the Deceased due to the said Accident. As regards the contention
of the learned Advocate for the Insurance Company that, their
Application for examining the Investigating Officer was opposed by
the Claimants, admittedly, there was no challenge to the order
passed by the learned Tribunal rejecting the Application at Exhibit
– 51 filed by the Insurance Company to summon the Investigating
Officer in the aforesaid Crime as the Witness. Admittedly, no
eyewitness to the Accident was examined by the Claimants.
The Claimant No.1, who examined herself before the learned
Tribunal, candidly admitted that, she did not witness the Accident.
The record shows that, the Claimants moved the Application below
Exhibit – 43 for issuance of summons to the eyewitnesses of the
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Accident and the Director General of CRPF and the learned
Tribunal by order dated 24/01/2019 issued Summons only to the
Director General of CRPF. From this, it is clear that, the Claimants
wanted to and intended to, examine the eyewitnesses to the
Accident. Eventually, The Claimants relied on the Police Papers to
prove the factum of motor vehicular Accident and death of Namdeo
Jalindar Ghuge [Deceased] in the said Accident.
9. The Police Papers shows that, Crime No.165/2018 was
registered against the unknown Driver for the offence punishable
under Sections 304-A, 279 of I.P.C and Section 134/177 of the M.V.
Act. The said Crime was registered on 12/05/2018 i.e. on the date
of Accident. The Crime Details Form speaks of the Accident to the
said motor bike, upon which, the Deceased and his friend were
travelling. The Postmortem Report shows the name of the
Deceased. The statement of the witness recorded during the
investigation, though after three [3] days of the Accident, speaks of
the Accident due to the use of the said Tractor and the name of
Tractor Owner, on inquiry with the people gathered at the spot of
Accident. The Police Papers comprised of the Final Report under
Section 173 of the Code of Criminal Procedure, 1973 [hereinafter
referred to as ‘Cr.P.C], which indicate that, the investigation of the
said Crime culminated in filing of Charge-sheet against the Driver
of the said Tractor. It is needless to state that, the Charge-sheet
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was for the offence of rash and negligent Act by the said Tractor
Driver. The said delay of three [3] days, will not be of much
consequence in the MACP. It is settled position under the law that,
the Police Papers can be looked into by the learned Tribunal / Court
to determine the issue of negligence in the MACP. Useful reference
can be made in that regard to the Judgment of the Hon’ble
Supreme Court of India in ICICI Lombard General Insurance Co.
Ltd Vs. Rajani Sahoo & Ors., in Civil Appeal No. __ of 2025 [@ SLP
(C) No.29302 of 2019] [Non-Reportable] dated January 02, 2025.
Therefore, in the light of the Police Papers available on record, non
examination of the witness to prove the factum of rash and
negligent driving of the Tractor by its Driver will not be fatal for the
Claimants.
10. There is no doubt that, Section 129 of the M.V. Act
contemplates wearing of head gear / helmet by the rider of the two
wheelers. The suggestion given to the widow of Deceased that, on
the day of Accident, the Deceased was not wearing the helmet, was
denied. Except the said suggestion, the Insurance Company failed
to prove, even on the touchstone of preponderance of probability,
their said contention of head gear / helmet.
11. As regards the contention that, the Deceased was not holding
the valid and effective Driving Licence, it has categorically come in
the cross-examination of the widow of Deceased done on behalf of
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the Insurance Company that, the Deceased was holding valid and
effective Driving Licence. Her further evidence that, nowadays
that Licence was missing, will not lead to the conclusion that, the
Deceased was not holding the Driving Licence. Thus, no fault can
be found with the answering of the said issue by the learned
Tribunal in the affirmative.
12. As regards the contention that, there was no sufficient proof
in respect of the employment of the Deceased in the services of
CRPF, the evidence of Witness No.2 examined by the Claimants is
more than sufficient to establish that, the Deceased was in the
services of CRPF. The evidence of the said Witness No.2 shows
that, he was a Head Constable in CRPF and pursuant to the
directions from his Office, in response to the Court Summons, he
was deputed to attend the proceedings in the MACP. He deposed of
attending the MACP pursuant to Exhibit – 47, which was the
Movement Order issued under the signature of Deputy
Commandant [Administration], CRPF, Talegaon, Pune. The said
Movement Order shows that, the Authority to move as referred at
Serial No.5 in the said Movement Order, was pursuant to the
Approved Note Sheet No. J.II.619/2019/GCP-EC-II dated
13/02/2019. Nothing has come in his evidence to discard his
testimony and the documents brought on record in his evidence.
The Court Summons naturally will not be in the name of Witness
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No.2. Non mentioning of authorization to Witness No.2 to give the
evidence and file documents in the MACP will not be fatal, as there
is clear mention of Approved Office Note at Serial No.5 in the
Movement Order as referred above.
13. The Last Pay Certificate in the name of Deceased is brought
on record at Exhibit – 48 in the evidence of this Witness No.2. It
has come in his cross-examination that, the said Last Pay
Certificate of the Deceased was received by his Office from Jammu
and Kashmir by a Fax. Absence of certificate under Section 65-[B]
of the Evidence Act will not be fatal to the admissibility of the said
Pay Certificate in view of the well settled position under the law
that, no strict rules of evidence are required while dealing with the
MACP Act and the principles of preponderance of probability are to
be applied. Useful reference can be made in that regard to the
Judgment of the Hon’ble Supreme Court of India in Sajeena Ikhbal
& Ors. Vs. Mini Babu George & Ors. in Civil Appeal No(s).7881 of
2024 [Arising out of SLP (C) No(s). 25114 of 2019] [Reportable]
dated October 17, 2024.
14. The evidence of this Witness No.2 shows that, the said Pay
Certificate was received from proper custody. Though the said
Certificate was of February – 2019, the details mentioned therein
shows that, the Deceased was paid the Salary up-to May – 2018
amounting to Rs.41,946/-. The Accidental death is also of May –
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2018. The evidence of this Witness No.2 further shows that, a copy
of Leave and Duty Certificate in the name of Deceased was brought
on record at Exhibit – 49, showing that, the Deceased was
sanctioned the Earned Leave [E.L] from 07/05/2018 to
05/06/2018. The motor vehicular Accident took place between the
said leave period of the Deceased i.e. 12/05/2018. The Papers go to
show that, there is communication at Exhibit – 54 filed by the
Claimants and, which was under the signature of Deputy
Commandant for DIGP, GC, CRPF, Pune addressed to the learned
Presiding Officer of the Tribunal and it speaks of attending the
proceedings of the MACP by Witness No.2, who was the Head
Constable in CRPF. By the said communication, the attested copies
of Service Book, attested copy of the Letter dated 25/02/2019 and
attested copies of Form – 16 were sent to the learned Tribunal.
Those documents fully established the Claimant’s case that, the
Deceased was in the services of CRPF.
15. As regards the contention of the learned Advocate for the
Insurance Company that, the amount shown in Exhibit – 55 should
be deducted from the amount of compensation awarded by the
learned Tribunal, the said amount as shown in the said Letter at
Exhibit – 55 is reproduced below :-
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Risk Fund Rs. 13,50,000/- paid to (Smt. Pooja Namdev
Ghuge (Wife) (Rs.8,50,000/-) and Smt. Pushpa
Jalinder Ghuge (Mother) (Rs.5,00,000/-)
GIS Rs. 31,335/- (Bill sent to PAO vide bill
No.H073GI0337-18-19-73, dated 09/2018)
Leave Rs.44,041/- (Bill will be sent to PAO after
Encashment passing of family pension)
Family pension / Proposal sent to PAO vide letter No.P.III78/2028-
DCRG FP-73 dated 15/02/2029
GPF / DLI N/A due to appointment after 01/01/2024
Form 16 Attached with letter
16. The said contention in respect of deduction of the said amount
from the amount of compensation has no base. Useful reference
can be made to the observations in Meenakshi Vs. The Oriental
Insurance Co. Ltd., in Civil Appeal No(s). _ of 2024 [Arising out of
Petition for Special Leave to Appeal (Civil) Diary No.39746 of
2018) [Reportable] dated July 23, 2024, by the Hon’ble Supreme
Court of India, which read as under :-
9. Recently in a judgment dated 11th July, 2024 in National
Insurance Company Ltd. v. Nalini and Ors. [Petition for
Special Leave to Appeal (C) NO.4230/2019], this Court held
that, allowances under the heads of transport allowance,
house rent allowance, provident fund loan, provident fund
and special allowance ought to be added while considering
the basic salary of the victim/deceased to arrive at the
dependency factor.
10. Therefore, components of house rent allowance, fexible
benefit plan and company contribution to provident fund
have to be included in the salary of the deceased while
applying the component of rise in income by future prospects
to determine the dependency factor. … …. ….. ….. …… …… ….. …
17. On the very aspect, useful reference can be made to the
decisions in Reliance General Insurance Company Vs. Shashi
Sharma ; [2016] 9 SCC 627, Sebastiani Lakra Vs. National
19
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Insurance Company Ltd. Vs. Mannat Johal [2019] 15 SCC 260 and
Helen C. Rebello [Mrs] and Others Vs. Maharashtra State
Transport Corporation and Another ; [1999] 1 SCC 90, reiterating
the settled position under the law that, Family Pension, Provident
Fund, Insurance, any Cash, Bank Balance, Shares, Fixed Deposit
etc., are all pecuniary advantages receivable by heirs on account of
one’s death and have no correlation with the amount receivable
under a statute occasioned only on account of Accidental death.
Thus, the said amount shown in Exhibit – 55 will not be liable for
deduction from the compensation amount.
18. From the above discussed evidence, the Claimants have
established that, the Last Pay of Deceased was Rs.41,946/-.
Considering the Salary of the Deceased mentioned in the Last Pay
Certificate, yearly Income of the Deceased from the Salary comes to
Rs.5,03,352/- [Rs. 41,946 x 12]. There is no dispute that, under
the settled position in law, the Statutory deductions are to be made
from the Income while computing the compensation in the MACP.
Exhibit – 56, which is a Certificate under Section 203 of the Income
Tax Act, 1961 for tax deducted at source from income chargeable
under the head “Salaries”, is for the period from March – 2017 to
February – 2018. The said document shows that, the Tax on the
total Income of Deceased was Rs.3,025/- and Rs.2,500/-, were
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FA-3593-19 and FA-888-2003.odt
deducted from the same towards Rebate and the final Income Tax
was computed as Rs.525/-. In the said document, the total Gross
Income of the Deceased is shown as Rs.3,72,024/- and after
deductions, barring Income Tax, Income is shown as Rs.3,10,510/-.
From this, it appears that, till February – 2018, monthly Salary of
the Deceased was less then the Salary shown in the Last Pay
Certificate. The consideration of the Last Pay of the Deceased by
the learned Tribunal cannot be faulted. The Last Pay Certificate do
not show deduction towards the Income Tax. However, from the
above Certificate at Exhibit – 56, it is clear that, the Income of the
Deceased was taxable. From the above material on record i.e. Last
Pay Certificate and Certificate at Exhibit – 56 towards the Tax, it
appears that, the Salary of the Deceased prior to the said Last Pay
was below Five Lakhs. It is needless to state that, the Tax on the
Income is governed by the provisions of the Income Tax Act. It is
not clear as to how come there was deduction of Rs.2,500/- towards
rebate from the Income Tax shown in the aforesaid Certificate at
Exhibit – 56. There is no material on record to show that, as to how
much Income Tax was deducted from the Salary of the Deceased
from March – 2018. There can be no two views on the aspect that,
the actual Income Tax deduction shown in the admissible
documents will have to be considered for Statutory deduction
under the head of Income Tax from the income. In absence of any
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FA-3593-19 and FA-888-2003.odt
other document contrary to this on the aspect of Income Tax, the
amount of Rs.3,025/- as shown in Exhibit – 56 as the amount of Tax
on total Income, is to be deducted from the income of the Deceased.
The amount of yearly income after deducting the said amount
towards Income Tax from the income of the Deceased would come
to Rs.5,00,327/-.
19. The Last Pay Certificate at Exhibit – 48 and the above
referred Certificate in respect of deductions at Exhibit – 56
nowhere shows deductions towards the Professional Tax. It is
established that, the Deceased was in CRPF, which comes under
the Central Government. In absence of any material to show
that, Professional Tax was deducted, from the Salary of the
Deceased, the deduction of Rs.2,500/- by the learned Tribunal
towards Professional Tax from the yearly Income of the
Deceased is without any basis and there is nothing to show that,
the Maharashtra State Tax on Professions, Trades, Callings and
Employment Act, 1975 was applicable to the Deceased. Hence,
in absence of any material to support the deduction towards
Professional Tax as made by the learned Tribunal, the same
needs to be interfered with.
20. As regards 50% addition to the total income per year, 1/3rd
deductions towards Personal and Living Expenses, Multiplier of
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FA-3593-19 and FA-888-2003.odt
17, and amount towards Funeral Expenses and Loss of Estate
considered and computed by the learned Tribunal do not call for
any interference, being in accordance with the Judgment in
National Insurance Company Limited Vs. Pranay Sethi And Ors.
[2017] 16 SCC 680.
21. As regards the Consortium of 40,000/- granted by the
learned Tribunal is concerned, it needs to be granted to each
Claimant being Widow, Daughter and Mother of the Deceased
towards Spousal Consortium, Filial Consortium and Parental
Consortium in light of the Judgment in Magma General
Insurance Co. Ltd. Vs. Nanu Ram and Ors. ; 2019 [4] Mh.LJ 1.
As far as grant of Interest is concerned, the learned Tribunal
awarded the same by relying on the Judgment in Neeta Vs. The
Div. Manager, MSRTC in Civil Appeal Nos. 348-349 of 2015
[Arising out of SLP (C) Nos.4897-4898 of 2014] dated
13/01/2015. The said Judgment is based on the Judgment in
Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy
Victims Association and Ors.; MANU/SC/1255/2011.
22. In view of the above discussion, the compensation awarded
by the learned Tribunal needs to be re-calculated and modified
as follows :-
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FA-3593-19 and FA-888-2003.odt
Nos. Particulars Amount
A Total income per year 41,946 x 12 5,03,352/-
B Less 10% Income Tax 5,03,352 – 3,025 5,00,327/-
C 50% to be added in total income per 5,00,327 + 2,50,163 7,50,490/-
year
D 1/3 deductions towards personal and 7,50,490 ÷ 3 = 5,00,327/-
living expenses 2,50,163
E Pecuniary loss after applying 5,00,327 x 17 85,05,559/-
multiplier of 17 as the Deceased was
just 30 years old
F Add : Funeral Expenses 15,000/-
G Add : Loss of Estate 15,000/-
H Add : Loss of Consortium 40,000 x 3 1,20,000/-
I Total Compensation payable to the Claimants 86,55,559/-
25. In light of the above, the Appeal filed by the Insurance
Company is dismissed and the Appeal filed by the Claimants is
partly allowed. The impugned Judgment and Order / Award stands
modified to the extent as shown in the above Chart. The
apportionment of the total compensation will be as follows :-
1. Widow :- Rs. 50,00,000/-
2. Daughter :- Rs. 26,55,559/-
3. Mother :- Rs. 10,00,000/-
25.1 The Operative Order of the impugned Judgment in
respect of investing the amount of compensation from the Share
of the Claimants is maintained.
26. The Appeals stand disposed off accordingly.
[NEERAJ P. DHOTE, J.]
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LATER ON :-
27. After the pronouncement of Judgment, the learned
Advocate for the Insurance Company seeks stay to the effect
and implementation of the Order, by which the Appeals of the
Claimants are partly allowed. He submits that, the Insurance
Company intends to challenge the same.
28. The learned Advocate for the Claimants opposes the said
prayer.
29. As the Appeals arise out of the Motor Accident Claim,
prayer of the Insurance Company is rejected.
[NEERAJ P. DHOTE, J.]
Sameer/April-2025
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 21/04/2025 18:33:26 25