Legal representatives of a deceased are entitled to claim compensation regardless of dependency status, and proper deductions for personal expenses must be applied based on the number of dependants.

ORDER :

Hirdesh, J.

This appeal has been filed by the appellant – Insurance Company under Section 173(1) of Motor Vehicles Act, 1988, against the award dated 17.08.2021 passed by Vth Additional Member, MACT Ujjain in Claim Case No.19/2021for reduction of the amount of compensation.

2. The date of accident, negligence and the issue of liability are not in dispute and the findings recorded by the Tribunal in this regard are also not in question. As per the findings of the Tribunal, in case of death of Vishnu Prasad, the Tribunal has awarded a total compensation of Rs.32,01,400/- along with interest.

3. Learned counsel for the Insurance Company contended that the Tribunal has committed error in holding the income of the deceased as Rs.18,000/- per month without there being any cogent and positive evidence. He further submitted that the Tribunal has committed error in adding 30% as future prospects contrary to the judgment of the Apex Court in the case of National Insurance Co.Ltd. Vs.Pranay Sethiand others (2017) 16 SCC 680 which ought to have been 25%. The assessment is highly excessive and cannot be considered as just and proper and prays for reduction of the amount of compensation.

4. On the other hand learned counsel for the respondent/claimants filed cross objection under Order 41 Rule 22 read with Section 151 of CPC fo enhancement of compensation and submitted that the Tribunal has committed error in awarding amount of compensation on the lower side as the claimant/respondents no.1 to 7 are wife, children and aged parents of the deceased and they are entitled to get parental filial consortium. It is also submitted that there are seven dependants of the deceased and the Tribunal has committed error in deducting 1/4th for the personal expenses. So when member of dependants are more than 7 then 1/7th should be deducted and prays for rejection of the appeal.

5. I have heard the learned counsel for the parties and perused the record.

6. Learned counsel for the Insurance Company submitted that the Tribunal has committed error in assessing the income of the deceased as Rs.18,000/- per month. He submitted that according to the pay slip Ex.P-14, Ex.P-15 and Ex. P-16, the deceased got conveyance allowance of Rs.1250/- and mobile allowance of Rs.250/- which should not have been added in the income of the deceased. In the case of National Insurance Company Vs. Indira Srivastava 2008 ACJ 614 the Apex Court held that allowances like travelling allowance (conveyance allowance) allowance for newspaper/periodicals, telephone, servant, club fee, car maintenance etc. by virtue of vocation need not be included in the salary while computing the net earnings of the deceased.

7. So considering the aforesaid judgment, the Tribunal has committed error in assessing the income of the deceased as Rs.18,000/- per month which is not sustainable in law. Hence, conveyance allowance and mobile allowance must be deducted from the salary. In the considered opinion of this Court net salary of the deceased was Rs.18,000/- and after deducting Rs.1,500/-, the salary comes to Rs.16,500/-. The finding of the Tribunal in this regard is modified and net salary of the deceased should be taken as Rs.16,500/-.

8. Learned counsel for the appellant also submits that the Tribunal has also committed error in adding future prospect as 30%, whereas it should be 25% as per the judgment of the Apex Court in the case of Pranay Sethi (Supra).

9. In the case of Pranay Sethi (Supra)the Apex Court held that when the deceased has permanent job then 30% future prospect must be added in the age group of 42-50 years. So, the finding of the Tribunal in this regard is just and proper and this Court is of the considered opinion that no interference is called for in this regard.

10. Learned counsel for the appellant submitted that respondents no.2 and 4 got married during the pendency of the claim petition before the Tribunal so they are not dependent upon the deceased.

11. On the other hand, learned