(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree dated 01.06.2022 made in M.C.O.P.No.1491 of 2019 on the file of the Motor Accident Claims Tribunal, Special District Judge, Salem.

Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the decretal order in M.C.O.P.No.201 of 2019 on the file of Motor Accident Claims Tribunal, Principal Subordinate Court, Mayiladuthurai.)

Common Judgment:

K. Rajasekar, J.

1. Challenging the quantum and for enhancement, these two appeals have been filed by both the parties to the claim petitions.

2. For the sake of convenience, the parties are referred to, as per their litigative status before the Tribunal.

3. The facts leading to the filing of this petition is as follows:

The appellants in C.M.A.No.479 of 2023 are the claimants in M.C.O.P.No.1491 of 2019 on the file of Special District Court, MCOP Tribunal, Salem. They come forward with the claim petition seeking compensation for a sum of Rs.80,00,000/- for the death of deceased Manickam in the motor accident which took place on 27.03.2019. The claimants are the dependants. According to them, the transport Corporation driver has negligently driven the vehicle resulting in causing death of said Manickam.

4. Before the Tribunal, the Transport Corporation contested the claim petition questioning the negligence as well as the quantum of compensation claimed.

5. The Tribunal, after considering the oral and documentary evidence placed on record, has accepted the case of the claimants and granted a compensation for a sum of Rs.22,85,000/- along with interest. Aggrieved over the quantum of compensation, both claimants and Transport Corporation have come forward with the appeals.

6. The learned counsel for the claimants submitted that the deceased herein was working as a Special Sub-Inspector of Police at Yercaud Police Station. To prove the income of the deceased, his salary certificate issued by the appropriate authority was produced and marked as Ex.P10. However, the Tribunal has not taken the gross salary paid to him and has taken net salary as his income, after deducting towards EPF and Income Tax etc., to quantify the compensation. The learned counsel further placed reliance on the judgment of the Hon'ble Supreme Court in Meenakshi vs. Oriental Insurance Co. Ltd., reported in 2024 SCC OnLine SC 1872 wherein the Hon'ble Supreme Court has held as follows:

                   "9. Recently in a judgment dated 11th July 2024 in National Insurance Company Ltd., Vs. 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, flexible 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. The Accident Claims Tribunal was justified in factoring these components into the salary of the deceased, before applying 50% rise by future prospects due to future prospects, while calculating the total compensation payable to the appellant.

7. Per contra, the learned counsel for the respondent Transport Corporation submitted that the quantum of compensation granted, more particularly fixing the income is on the higher side and prays for modification.

8. We have considered the submissions made and also perused the records.

9. On a careful perusal of Ex.P10-Salary Certificate issued by the Accounts Officer of the District Police Office, Salem District, which contains the break up details of gross salary shows that the deceased was receiving a sum of Rs.72,759/- as gross salary, but deductions were made towards General Provident Fund, Family Benefit Fund, Special Provident Fund, Health Insurance, festival advance repayment, income tax and income tax cess etc.,

10. It is a well settled principle of law that Provident Fund payable out of the earnings made by a person need not be deducted since the payment has been made out of his total earnings. Even in the absence of any payment towards Provident Fund, he is entitled to receive the gross salary. As far as the income tax is concerned, it is only an advance tax deducted and it shall be calculated or adjusted during the filing of the income tax return. It may result in refund or extra payment of tax, which has to be calculated at the time of arriving at the monthly income for calculating the compensation.

11. In view of the same, we are of the view that calculating the compensation based on net income is not justified and accordingly, we are inclined to fix the monthly income of the deceased at Rs.72,759/-. Similarly, the Tribunal has also fixed 10% towards future prospects which is not proper. In view of the judgment of Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and Others reported in 2017 (2) TANMAC 609 (SC), if the deceased was in permanent employment, 15% of the income has to be added towards future prospects. Accordingly, the loss of dependency is calculated as follows:

                  

The loss of consortium includes loss of love and affection, hence the award of compensation separately under both heads are not permissible and the claimants each are entitled to Rs.40,000/- under the head of loss of consortium as held by Apex Court in United India Insurance Co. Ltd. v. Satinder Kaur reported in (2021) 11 SC 780 and reiterated in V. Pathmavathi and Ors.Vs.Bharthi Axa General Insurance Co. Ltd., and Another reported in 2026 INSC 131.

Accordingly, the modified compensation payable would be