ORDER

This appeal has been filed by the appellantsunder Section 173(1) of Motor Vehicles Act, 1988, against the award dated 08.02.2022 passed by XXVI Member, MACT Indore, in Claim Case No.3184/2017 on account of inadequacy of compensation and seeking enhancement of 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 Smt. Suman Parakh, the Tribunal has awarded a total compensation of Rs.21,47,549/- in favour of the respondents no.1 to 5 along with interest from filing of the claim petition till its realisation.

3. Learned counsel for the appellants submits that compensation as awarded by the Tribunal is on the higher side. He further submitted that the Tribunal has wrongly assessed the income of the deceased. He submitted that according to the income tax return Ex.P-16, deceased received Rs.60,000/- from house property and Rs.5,007/- from short term capital gain i.e. sale of securities liable to STT and cost of acquisition and according to Ex.P-17 income tax return deceased received Rs.60,000/- from house property and Rs.2,38,469/- from short term capital gain. This also exist after the death of the deceased. So this income has not been added in the income of the deceased. Only income of the deceased from profit and gains of business or profession was added. Hence, this income must be deducted from the income of the deceased. He further submitted that appellants gave Rs.10 lacs to the claimant after the death of the deceased. So, this amount must be deducted from the compensation.

4. On the other hand, learned counsel for the respondents/claimants prays for dismissal of the appeal and filed cross objection under Order 41 Rule 222 of CPC for enhancing the compensation and submitted that Tribunal has grossly erred in not assessing the income of the deceased as per the last income tax return Ex.P-18 while the same was filed and proved along with the previous return Ex.P-16 and Ex.P-17. So, the Tribunal should have assessed the income as per the last return or in alternative should have assessed the average of all the three returns filed as Ex.P-16, Ex.P-17 and Ex.P-18. He further submitted that the Tribunal has grossly erred in deducting 1/4th of the income for personal expenses of the deceased because the claimants are five in number. The Tribunal has grossly erred in not granting loss of consortium to the respondent no.5. Hence, prays for enhancement of compensation.

5. On the other hand, learned counsel for the appellants prays for rejection of the cross objection.

6. Heard the learned counsel for the parties and perused the record.

7. The first argument raised by the appellants is that the Tribunal has committed error in not deducting Rs.10 lacs which was given by the appellants to the claimant after the death of the deceased. So, this amount of Rs.10 lacs must be adjusted in the award.

8. On the other hand, learned counsel for the respondents/claimants opposes the aforesaid contention.

9. After hearing the learned counsel for both the parties and on perusal of the record of the Tribunal, the appellants’ witness Sachin Patil in his cross examination in para 15 accepted that Rs.10 lacs was given to the claimants after the death of the deceased. He also admitted that they are taking one rupee premium in per ticket per passenger for insurance.

10. In the case of Himanchal Road Transportation Corporation Vs.

Arvind Singh Mann 1991 ACJ 825it has been held as under:-

“16. The question which arises is as to whether the amount payable or the amount paid under the provisions of the Scheme or by way of ex gratia payment by the appellant can be said to be pecuniary advantage as a result of death in the accident, benefit of which can be given to the tortfeasor. The levy of surcharge under the provisions of Passengers and Goods Taxation Act is a