APHC010429982005 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] Friday, the twenty-seventh day of February two thousand and twenty six Present The Honourable Ms. Justice B. S. Bhanumathi Motor Accident Civil Miscellaneous Appeal No.2759 of 2005 Between: Akki Veda Jyothi and others ...Appellants and D.Appa Rao and others ...Respondents Counsel for the appellants: 1. Jayanti S. C. Sekhar Counsel for the respondents: 1. Gudi Srinivasu The Court made the following: 2 BSB, J M.A.C.M.A.No.2759 of 2005 JUDGMENT: This appeal is filed under section 173 of the Motor Vehicles Act, 1988 against the decree and the award dated 15.06.2005 in M.O.P.No.1220 of 2002 on the file of the Motor Accidents Claims Tribunal cum III Additional District Judge, Visakhapatnam. 2. The appellants are the claimants and the respondents are the respondents before the Tribunal. 3. The case of the claimants, briefly stated, is as follows: On 14.03.2002, at about 6.15 a.m., Akki Syam Sundar (in short ‘the deceased’) and his son as a pillion rider were going on a motor cycle bearing No.AP 31 J 8487 and reached near zoo park, a mini van bearing No.AP 31 T 2064 coming from behind, being driven in a rash and negligent manner by its driver, dashed the motor cycle. As a result, the deceased and his son died on the spot. The S.H.O. of III Town P.S., Visakhapatnam, registered a case in Cr.No.128 of 2002 against the respondent No.2. The deceased was 52 years old and an employee of I.N.S. Eksila and earning Rs.15,190/- per month. 4. The claimant No.1 is the wife and the claimant No.2 is the daughter of the deceased. They claimed compensation of Rs.13,00,000/-. The respondent No.1 is the owner, the respondent No.2 is driver and the respondent No.3 is the insurer of the mini-van. 5. The respondent No.1 filed counter denying the case of the claimants and further stating that the amount of compensation claimed is excessive and that the vehicle was insured with the respondent No.3. The respondent No.2 also filed counter with the similar averments. 3 BSB, J M.A.C.M.A.No.2759 of 2005 6. The respondent No.3 filed counter denying the averments in the petition and further stating that the deceased lost control of the motor cycle driving it with high speed in a rash and negligent manner; that the amount of compensation and the rate of interest claimed are excessive; that the claimant No.2 is not unmarried daughter of the deceased and not entitled to compensation and that this respondent is not liable to pay compensation unless the claimants prove issuance of a policy of insurance by the respondent No.3 in respect of the offending vehicle existing as on the date of the accident and the driver of the insured vehicle holding a valid driving licence and the insured vehicle was having valid permit as by then. 7. 7. On behalf of the claimants, P.Ws.1 to 3 were examined and Exs.A1 to A5 and Ex.X1 were marked. Ex.A1 is the attested copy of F.I.R. dated 14.03.2002, in Crime No.128/2002 under Sections 304-A of I.P.C., of III Town Law & Order Police Station, Visakhapatnam; Ex.A2 is the attested true copy of M.V.I report; Ex.A3 is the attested true copy of Post Mortem Certificate of the deceased; Ex.A4 is the pay certificate of the deceased issued by INS Ekasila, Visakhapatnam; Ex.A5 is the Pay Certificate of the deceased for the month of February, 2002 issued by INS, Ekasila, Visakhapatnam. Ex.X1 is the authorization letter to give evidence by P.W.3. On behalf of the respondents, neither oral nor documentary evidence was produced. 8. After considering the evidence, the Tribunal held that the accident in question occurred due to the rash and negligent driving of the mini van by the respondent No.2. Further, basing on the pay certificate dated 04.07.2002 marked as Ex.A.4 showing gross salary of the deceased as Rs.15,190/- and pay slip of the deceased for the month of February, 2002 marked as Ex.A.5 showing gross salary of Rs.14,830/- 4 BSB, J M.A.C.M.A.No.2759 of 2005 and net salary of Rs.5,235/-, the Tribunal has taken the net salary as the criteria for choosing multiplicand basing on decision in Asha and others Vs. United India Insurance Company Limited and another1, on the proposition that the net salary shall be taken into consideration for computing loss of dependency. After multiplying the monthly net salary by 12, the resultant amount of Rs.62,820/- was further reduced to Rs.41,880/- after deducting 1/3rd of the annual income towards personal expenditure of the deceased. Since the deceased was aged 52 years, a multiplier ‘11’ was taken and the annual contribution of Rs.41,880/- was multiplied by ‘11’. The resultant loss of dependency is calculated as Rs.4,60,680/-. In addition thereto, Rs.15,000/- was awarded as compensation for loss of consortium to the claimant No.1; Rs.20,000/- towards loss of estate and Rs.10,000/- towards funeral expenses. Thus, in total, compensation of Rs.5,05,680/- with proportionate costs and subsequent interest @ 7.5% p.a. on the principal amount of compensation from the date of the claim petition till the date of deposit was awarded. 9. Aggrieved by the award, this appeal was preferred by the claimants seeking enhancement of the amount of compensation on the grounds that the Tribunal erred in not taking into consideration Rs.15,190/- as the monthly salary of the deceased, while assessing the amount of loss of dependency; that the Tribunal erred in further deducting 1/3rd of the net salary and that the Tribunal ought to have awarded compensation of Rs.13,00,000/-. 10. The learned counsel for the appellants submitted that the Tribunal ought to have taken the net salary, excluding the deductions made 1 2004 ACJ 448 5 BSB, J M.A.C.M.A.No.2759 of 2005 towards income tax and professional tax, if any, but not any other amount deducted towards personal liabilities, such as discharge of loan, payment of premium for insurance. He further submitted that the Tribunal has not added amount towards future prospects and that no compensation for loss of consortium to the claimant No.2 was granted. 11. Though the notice to the respondent no.1 was served, no appearance has been made. The notice sent to the respondent no.2 was returned unserved with the endorsement ‘insufficient address’, though it was sent to the address as given by the Tribunal. Notice sent to the counsel for the respondent No.2 before the Tribunal was returned unserved with the endorsement ‘Addressee refused’. Hence, returned to sender’. No further notice is required to the respondent No.2. 12. The learned counsel for the respondent No.3 submitted that no consortium to the claimant No.2 is required and that no future prospects need to be added as the accident occurred in the year 2002. 13. Insofar as the amount of salary to be taken into consideration for the purpose of identifying the contribution of the deceased to the family is concerned, as per the salary slip marked as Ex.A5, the gross amount of salary is Rs.14,830/- for the month of February, 2002 and the total deductions made are Rs.9595/-. The salary details for the month of February, 2002, are as follows: CREDITS DEBITS Basic pay 9,000=00 G.P.F subscription 5400=00 Spl. Increment 175=00 M.C.A. 335=00 D.A. 4050=00 H.B.A. 3800=00 C.C.A. 180=00 C.G.E.I.S. 60=00 H.R.A. 1350=00 Total Debits 9595=00 T.A. 75=00 Total Credits 14,830=00 Net Pay : Rs.5235=00 6 BSB, J M.A.C.M.A.No.2759 of 2005 14. As can be seen from the above details, none of it is allowable deduction while considering the total amount of contribution of the deceased, since they are mere appropriation of the income. However, the Tribunal failed to properly consider the same and erroneously deducted it for computing the loss of dependency. It is to be noticed that if any income tax or professional tax is to be paid by an employee, such amount shall be deducted for calculating the amount of actual loss. Since the deceased was drawing nearly Rs.15,000/- per month, certainly during the financial year 2002-2003, his income is chargeable to income tax. The Tribunal ought to have taken note of the then applicable income tax rules to decide the amount of tax to be deducted subject however, to permissible exemptions, if any. As per the rules applicable to the financial year 2002-2003 (corresponding assessment year 2003-2004), the deceased is liable to pay approximately an amount of Rs.18,600/- towards income tax, if no other permissible deduction is available. Since exemptions are only a matter of fact, unless there is proof of the same by filing income tax returns, it is difficult to exactly account the same. 15. Similarly, the claimants are also entitled to seek addition of future prospects of the deceased. As per the decision in National Insurance Company Limited Vs. Pranay Sethi and others2, the deceased being aged 52 years, 15% of the future prospects shall be taken into consideration as he is a fixed salaried employee. As already noted, the amount deductible towards exact amount of tax payable by him is not proved. The amount deductible being near the figure of amount addable, without going into the exact calculation, for the purpose of 2 AIR 2017 SC 5157 7 BSB, J M.A.C.M.A.No.2759 of 2005 deciding the loss of future income of the deceased, which would go to his estate in the hands of the legal representatives, this Court is of the view that Rs.15,000/- can be taken as monthly income of the deceased for the purpose of claim petition. Out of the same, 1/3rd shall be taken towards his personal expenses. Thus, the balance amount of his contribution is Rs.10,000/-. When it is multiplied by ‘12’, his annual contribution comes to Rs.1,20,000/-. The same is required to be multiplied by the multiplier applicable to the person aged between 51 to 55 which is ‘11’ and when multiplied accordingly, the loss of dependency comes to Rs.13,20,000/-. The Tribunal awarded Rs.15,000/- towards loss of consortium to the first petitioner, Rs.20,000/- under the head ‘loss of estate’ and Rs.10,000/- under the head ‘funeral expenses’. In addition to the amounts already granted under the other heads by the Tribunal, a sum of Rs.10,000/- can be granted towards loss of consortium to the claimant No.2. Thus, in all, the appellant / claimants are entitled to a sum of Rs.13,75,000/-. 16. In the result, the appeal is allowed enhancing the amount of compensation from Rs.5,05,680/- to Rs.13,75,000/-. The rate of interest is as awarded by the Tribunal. The interest is payable from the date of the petition till the date of realisation. The appellants are entitled to costs throughout. 17. The amount already paid by the respondent(s) towards the principal, interest and costs shall be appropriated towards the same as they stand due on the date of such payment, if any made. 8 BSB, J M.A.C.M.A.No.2759 of 2005 18. The appellants shall pay Court fee on Rs.75,000/- since Court fee was paid on Rs.13,00,000/-. Draft the decree accordingly. Pending miscellaneous petitions, if any, shall stand closed. ___________________ B. S. BHANUMATHI, J 27.02.2026 GRL / RAR