The 2nd Schedule to the Motor Vehicles Act, 1988 is not specifically obligate the Tribunal to apply the 2nd Schedule for claim application made under Section 166 of the Act.

Ashim Kumar Banerjee, Shukla Kabir Sinha, JJ.

The appeal would relate to awarding of compensation to the bereaved family of a Government employee. The Tribunal mechanically applied the 2nd Schedule ignoring the fact that the claim application was made under Section 166 of the Motor Vehicles Act, that does not specifically obligate the Tribunal to apply the 2nd Schedule, which is appended to the said Act as a ready reckoner for claim application made under Section 163-A.

2. The case in hand before us would relate to an application under Section 166. The Tribunal awarded compensation by using the multiplier of 8 and calculating the compensation strictly as per the 2nd Schedule.

3. Pertinent to note, that the victim died at the age of 56 years, having about four years service left to his credit. Both the claimants as well as the Insurance Company are aggrieved by the said decision. The Insurance Company preferred the instant appeal on the ground that the Tribunal should not have mechanically applied the multiplier of 12 adopting the 2nd Schedule. The Tribunal should have followed the formula so prescribed by one of our Division Bench decisions in the cases of Smt. Sankari Banik & Ors. v. National Insurance Co. Ltd. & Anr., reported in 2009 (4) T.A.C. 446 (Cal.) and Smt. Rita Ghosh & Ors. v. United India Insurance Company Ltd. & Anr., reported in 2010 (3) T.A.C. 21 (Cal.) followed in subsequent decision in the case of New India Assurance Co. Ltd. v. Sajeda Begum & Ors., reported in 2010 (2) T.A.C. 840 (Cal.).

4. Pertinent to note, in all the three decisions the Division Bench adopted a different mode to calculate the compensation by taking into account the gross salary, which the victim could get had he been alive for rest of his service life and thereafter calculate the actual compensation by giving credit to available deduction including ?rd of such income amounting to personal expense.

5. The claimants No. 1 and 2 are aggrieved, as the Tribunal did not award any interest. The claimants are also aggrieved, as the Tribunal considered the net income instead of gross income less the professional tax, which the victim was supposed to pay.

6. Mr. K.K. Das, learned Counsel appearing for the Insurance Company has heavily relied upon three Division Bench decisions referred to (supra). Mr. Das contends that the Division Bench adopted the formula to be applied in case of Government servants when they succumbed to injury being involved in the accident. Mr. Das further contends that the bereaved family would automatically be entitled to appropriate pension, which the victim could also receive had he been alive. Hence, it would be apt to award compensation by considering the amount of salary, which the victim could earn for the unexpired period of service. To support his contention Mr. Das has also relied upon the Apex Court decision in the case of Bangalore Metropolita Transport Corporation v. Padma & Ors., reported in 2009 ACJ 1336. In the said decision a Government employee died at the age of 54 years, being hit by a Corporation bus. The Tribunal applied the multiplier of 8, as we find from paragraph 7 of the said decision. We, however, do not get any logic advanced by the Apex Court to support such multiplier. Significant to note, if we strictly follow the 2nd Schedule, the multiplier would be 11. We do not know what was the retiring age of the victim. Had it been 58 years, the deceased would have four years service left and in case of 60 years, it would be six years.

7. Per contra, Mr. Jayanta Kumar Mondal, learned Counsel appearing for the claimants refers to a latest decision of the Apex Court in the case of K.R. Madhusudhan & Ors. v. Administrative Officer & Anr., reported in 2011 ACJ 743 (SC) : AIR 2011 SC (Civil) 639, wherein the Apex Court rejected the contention that a different policy should not be adopted in case of Go