Exclusion of professional tax from the income for calculating the loss of dependency.

1. Heard Mr. P. Gautam, learned counsel appearing for the appellant, the Oriental Insurance Company Limited as well as Mr. B. Debnath, learned counsel appearing for the respondents No. 1, 2, 3 and 4. None appears for the respondent No. 5 despite due notice from this court.

2. By means of this appeal, the judgment and award dated 20.07.2013 delivered in T.S. (MAC) No. 01 of 2012 by the Motor Accident Tribunal, West Tripura, Court No. 4 has been called in question. In this appeal, the veracity of accident which occurred on 30.11.2011, at about 5.50/6.00 p.m. on Agartala-Bishalgarh road near SDM office is not in question. Even the death of one Falguna Debbarma who was proceeding by riding his motor cycle bearing registration No. TR-01-C-9354 in the extreme left side of the road in normal speed has not been doubted. At that time, one speeding vehicle bearing registration No. TR-01-N-1794 (Tata Ace) coming from the opposite direction dashed Falguna Debbarma. He received fatal injuries and when in a alarming condition he was brought to Bishalgarh hospital, he was referred to GBP hospital for better treatment of his injuries. On the following day of the accident i.e. on 01.12.2011, he succumbed to his injuries. The respondents No. 14 filed the claim-petition under Section 166 of the MV Act.

3. It is also not in dispute that the deceased was an Assistant Teacher under the Directorate of School Education and on 01.12.2012 his salary was Rs. 15,757/- as per the salary certificate issued by the Inspector of Schools, Bishalgarh. On the day of the accident the age of the deceased was about 42 years and as such he was in the age group of 42-45. Having regard to all these as noted, loss of dependency was deduced @ Rs. 25,81,236/-. This sum was calculated after adding the loss of future prospect @ 30%.

4. Mr. Gautam, learned counsel appearing for the appellant urged initially that the accident was the outcome of the contributory negligence. In that context following question and observations were found relevant:

(i) Whether the appellant has discharged his burden to prove that there was negligence on the part of the deceased, Mr. Gautam, learned counsel for the appellant has fairly submitted that there was no ex facie evidence in this regard and finally he did not insist on the said ground.

(ii) Mr. Gautam, learned counsel has further submitted that the tribunal has imposed penal interest @ 9% per annum from the date of filing of the claim. It is true the penal interest cannot be imposed by the tribunal within its jurisdiction under Section 171 of the MV Act.

Mr. Gautam, learned counsel has also raised that while determining the annual income of the deceased, the professional tax that the deceased paid has not been taken care of.

5. From the other side, Mr. Debnath, learned counsel appearing for the claimant- respondents has submitted that since the appeal is a continuation of adjudication, he urged this court to look into the factors which are missing in the award as awarded by the tribunal. Mr. Debnath, learned counsel has relied on a decision of the apex court in Vimal Kanwar and Others vs. Kishore Dan and Others, 2013 ACJ 1441 where the apex court has provided a sum of Rs. 1,00,000/- for loss of consortium and loss to the estate and for loss of love and affection to the daughter @ Rs. 2,00,000/- and for loss of love and affection to the widow and the mother @ Rs. 1,00,000/- each i.e. 2,00,000/- with funeral expenses at Rs. 25,000/-. Based on that Mr. Gautam, learned counsel has also raised that while determining the annual income of the deceased, the professional tax that the deceased used to pass has not been taken care of. Based on Vimal Kanwar (supra), Mr. Debnath, learned counsel has contended that the award may include all those conventional components of compensation. In this regard, another decision of the apex court in Rajesh and Others vs. Rajbir Singh and Others, 2013 ACJ 1403 has also been relied by Mr. Debnath, le