1. The annual income of the deceased-victim should be determined based on the income tax return filed prior to the accident. 2. The deduction towards personal and living expenses of the deceased should be based on the number of dependents at the time of the accident.

JUDGMENT

Bivas Pattanayak, J. - The present appeal is preferred against the judgment and award dated 9 December 2020 passed by learned Judge, Motor Accident Claims Tribunal, Fast Track Court, Durgapur, Paschim Bardhaman in M.A.C Case no. 98 of 2018 granting compensation in favour of the claimants to the tune of Rs. 1,48,24,974/-alongwith interest under Section 166 of the Motor Vehicles Act, 1988.

2. The brief fact of the case is that on 11 March 2018 at about 14:00 hours while the victim was proceeding towards Mihijam from Jamtara by driving his own vehicle bearing registration no. WB-40AD/5782 (Tata Safari) through the Mihijam-Jamtara Main Road and when he reached near Gorainala More at that time the offending vehicle bearing registration no.JH-04H/8054 (bus) in a rash and negligent manner dashed the victim's vehicle from opposite direction, as a result of which the victim sustained severe bleeding injuries and died on the spot. On account of sudden demise of the victim, the claimants being the widow, son and parents of the deceased filed application for compensation of Rs.1,69,46,744/-along with interest under Section 166 of the Motor Vehicles Act, 1988.

3. The appellant-insurance company contested the claim application before the learned tribunal. However respondent no.4-owner of the offending vehicle though filed written statement but subsequently did not contest the claim application before the learned tribunal and the claim application was disposed of exparte against him. By an order dated 10.11.2022 the service of notice of appeal upon respondent no.4-owner of the offending vehicle is dispensed with.

4. The claimants in order to prove their case examined four witnesses including claimant no.1, widow of the deceased and also produced documents which are marked as Exhibit 1 to 10 respectively.

5. The contesting opposite party no.2-insurance company (appellant herein) also adduced evidence of one witness and proved documents marked Exhibit A, B to B/3 and C respectively.

6. Upon considering the materials on record as well as the evidence produced on behalf of the respective parties, the learned tribunal granted compensation in favour of the respondents-claimants to the tune of Rs. 1,48,24,974/- alongwith interest.

7. Being aggrieved by and dissatisfied with the impugned judgment and award the insurance company has preferred the present appeal.

8. In the present appeal the respondent nos. 1, 2 & 3 (claimants) have filed a cross-objection being COT 36 of 2021 for enhancement of compensation amount.

9. Both the appeal as well as the cross-objection is taken up together for disposal.

10. Mr Sanjay Paul, learned advocate for appellant-insurance company submitted that the learned tribunal erred in taking into account the average income of the deceased pertaining to assessment years 2015-16, 2016-17, 2017-18 and 2018-19 whereas it ought to have considered the income tax return for the assessment year 2017-18 filed on 16.2.2018, prior to the accident. The income of the deceased is to be determined by deducting the tax component from the gross income and as such the income of the deceased victim should be gross income of the deceased of Rs. 15,34,318/-less tax paid of Rs. 2,43,119/-which comes to Rs.12,91,199/-. In support of his contention he relied on the decision of Hon'ble Supreme Court passed in V. Subbulakshmi and Others versus S. Lakshmi and another reported (2008) 4 SCC 224 and Sashikala and Others versus Gangalakshmamma and another reported in 2015 (2) TAC 867 (SC). In view of his above submissions he prayed for modification of the award.

11. In reply to the aforesaid contentions raised on behalf of appellant-insurance company, Mr Jayanta Kumar Mandal, learned advocate for respondents-claimants submitted that the income of the deceased for the assessment year 2018-19 of Rs.18,29,722/- was submitted after the death of the victim. However, as per the provisions embodied under Section 159 of the Income Tax Act where a person dies, his