B Veerappa, J. - Though these appeals are listed for admission, with the consent of the learned counsel for the parties, they are taken up for final disposal.

2. Mfa No.101300/2017 is filed by the Divisional Controller, NWKRTC seeking reduction, whereas MFA No.100760/2017 is filed by the claimants seeking enhancement against the judgment and award dated 20.01.2017 made in MVC No.1913/2015 on the file of the Senior Civil Judge and Member, Addl. MACT, Saundatti (for short, the Tribunal) awarding a total compensation of Rs. 30,42,520/- with interest at 9% per annum from the date of petition till deposit.

I. FACTS OF THE CASE

3. It is the case of the claimants that the deceased Chanasab Khansab Mulla, who was the drivercum- conductor in NWKRTC bus bearing registration No.KA-26/F-863 along with one Kariyappa Rudrappa Hakkaraki was on duty to ply the bus from Naragund to Bengaluru. On 5.8.2014, the bus left from Bengaluru to return to Naragund at about 12.15 a.m. and the deceased Chanasab Khansab Mulla was taking rest on front left side long seat of the bus which is kept for taking rest to the other driver, who drove the upward journey. When the said bus came near Metikurki Forest in Hiriyur Taluka, Chitradurga District, at that time, the driver of the bus Kariyappa Hakkaraki drove the bus in a very rash and negligent manner and lost control over the bus and dashed to the back side of a Truck bearing registration No.MP-07/HB-3059 which was stationed by the left side of the road and caused the accident. Due to the impact, the left side of the bus was damaged and the deceased Chanasab who was taking rest on the front left side long seat sustained grievous injuries to his head, chest and other vital parts of the body and succumbed to the injuries on the spot. The dead body of the deceased Chanasab was shifted to Government Hospital, Hiriyur and after postmortem, the same was handed over to the claimants and they performed rituals by spending Rs. 70,000/-.

4. It is the further case of the claimants that prior to the accident, the deceased Chanasab was hale and healthy aged about 35 years and working as a driver cum conductor in NWKRTC, Gadag Division, at Naragund depot. The deceased was getting a salary of Rs. 22,000/- per month plus extra OT benefits and he was the main earning member of the family and the claimants being wife, children and mother were depending on the earnings of the deceased. Therefore, they have filed a claim petition seeking compensation as prayed for.

II. OBJECTIONS FILED BY THE RESPONDENTS

5. In response to the summons issued, the respondent filed objections denying the averments made in the claim petition and contended that the claim made by the claimants is highly exorbitant, excessive and without any basis, and further contended that the alleged accident has not at all taken place due to the negligent act of the driver of the NWKRTC bus bearing registration No.KA-26/F-863 and the driver of the said bus was driving the same in a moderate speed of 44 -45 kms per hour. The truck bearing No.MP-07/HB-3059 was stationed negligently without any indication and also due to rain the bus came in contract with the said truck and the incident took place. They have not disputed that the deceased was a driver-cum-conductor as on the date of the accident. The other allegations made in the claim petition are denied. Hence, sought for dismissal of the claim petition.

III. ISSUES FRAMED

6. Based on the pleadings, the Tribunal had framed the following issues:

(i) Whether the petitioners prove that, on 4.8.2014, at about 3.15 a.m. on NH4 near Metikurke forest, taluk Hiriyur, Dist:Chitradurga, the driver-cum-conductor in NWKRTC bus bearing No.KA-26-F-863 Naragund Depot drove the bus in a rash and negligent manner an lost control over the bus and dashed to the back side of the Truck bearing its registration No.MP- 07/HB-3059 which was stationed by the left side of the road and caused the accident, wherein another driver cum conductor by name Sri. Chanasab Khanasab Mulla Succumbed to the accidental injuries

(ii) Whether the petitioners prove that they are entitled for compensation If so for what amount and from whom

(iii) What order or award

IV. EVIDENCE ADDUCED BY THE PARTIES

7. In order to substantiate the case, the claimants got examined the wife of the deceased as PW1 and one witness as PW2 and produced the documents as per Exs.P1 to P11. One Kariyappa Hakkaraki was examined as RW1 and Staff Superintendent of the KSRTC examined as RW2 and got marked the documents as per Exs.R1 to R4.

V. AWARD PASSED BY THE TRIBUNAL

8. The Tribunal considering the entire material on record has recorded the finding that the claimants have proved that the accident occurred on 5.8.2014 due to rash and negligent driving of the driver-cum-conductor of the NWKRTC bus bearing No.KA-26/F-863 and the deceased Chanasab Khansab Mulla succumbed to the accidental injuries. Further, the Tribunal has held that the claimants are entitled to compensation. Accordingly, the Tribunal by the impugned judgment and award granted a total compensation of Rs. 30,42,520/- with interest at the rate of 9% per annum from the date of petition till the date of deposit. Hence, MFA No.101300/2017 by the NWKRTC for reduction and MFA No.100760/2017 by the claimants for enhancement of compensation.

VI. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES

9. We have heard the learned counsel for the parties to the lis.

10. Sri. S.L. Matti, the learned counsel for the NWKRTC contended that the Tribunal has taken gross salary of the deceased, which is impermissible and it ought to have taken only net salary while calculating the loss of dependency. He would further contend that the Tribunal has not deducted the Professional Tax and Income Tax of the deceased while computing the loss of dependency. He would further contend that the Tribunal has proceeded to grant exorbitant compensation towards loss of consortium and loss of estate. Therefore, he sought to reduce the compensation awarded by the Tribunal.

11. Per contra, Sri. H.M. Dharigond, the learned counsel for the claimants contended that the Tribunal while awarding the compensation has not considered to grant future prospects to the deceased, who is a permanent employee in NWKRTC in terms of the dictum of the Honble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Others, (2017) AIR SC 5157. He further contended that since there are 6 dependents, 1/4th has to be deducted towards personal expenses of the deceased instead of 1/3rd. Therefore, he sought for enhancement of compensation.

VII. POINTS FOR DETERMINATION

12. Having heard the learned counsel for the parties, the points that arise for our consideration in these appeals are:

(i) Whether the Tribunal was justified in not taking into consideration the future prospects of the deceased in view of the dictum of the Honble Supreme Court in the case of Pranay Sethi

(ii) Whether the Tribunal was justified in not taking into consideration the Professional Tax and Income Tax and awarding more compensation towards loss of consortium in the facts and circumstances of the cases

VIII. CONSIDERATION

13. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.

14. It is the specific case of the claimants that on account of rash and negligent driving of one Kariyappa who was on duty to ply the bus from Naragund to Bengaluru, on 5.8.2014, the alleged accident occurred and thereby the deceased Chanasab Khansab Mulla succumbed to the head injuries. It is further case of the claimants that the deceased was earning a sum of Rs. 22,000/- per month plus extra OT benefits as he was permanent driver-cum-conductor in NWKRTC, Gadag division. It is the specific case of the respondent, who filed objections that there is no negligence on the part of the driver Kariyappa, who was driving the bus at the time of the accident. Ex.P1-FIR, Ex.P2-Complaint, Ex.P3- Panchanama, Ex.P4-MVA Report, Ex.P5-Post mortem report and Ex.P6-Charge sheet clearly depicts that the accident occurred due to rash and negligent driving of the driver Kariyappa Rudrappa Hakkaraki, who was on duty to ply the bus as on the date of the accident. No contra material produced by the NWKRTC before the Court to disprove the material documents stated supra.

15. It is the specific case of the claimants that the deceased was working as Driver cum Conductor in NWKRTC, Gadag Division, Naragund Depot, and he was drawing salary of Rs. 22,000/- per month plus extra OT benefits and same was stated by PW.1 in her examinationin- chief. In support of her contentions, she produced Exs.P.8 and P.9- Salary Slips, which clearly depicts that the gross salary of the deceased was mentioned as Rs. 21,416/-. The said Exs.P.8 and P.9 are not disputed by the respondents. Taking into consideration the deductions, total net income comes to Rs. 2,56,992/- (Rs.21,416/- X 12). The tax exempted up to Rs. 2,50,000/- is not disputed. Remaining amount of Rs. 6,992/- is chargeable at 5% income tax. Therefore, income tax of Rs. 349.60/- (Rs.6992 x 5%) is deducted and remaining amount would be Rs. 2,56,642.40. The Tribunal has proceeded to calculate deduction of 1/3rd towards personal expenses of the deceased and ultimately loss of dependency would be Rs. 1,71,095/-. The Tribunal has failed to notice that the deceased was paying Rs. 200/- towards Professional Tax per month and it would be Rs. 2,400/- per year, that has to be deducted in the salary of the claimant, the same has not been done.

16. As rightly contended by the learned counsel for the Corporation that the Tribunal has proceeded to grant compensation towards loss of consortium Rs. 50,000/- and towards loss of estate Rs. 1,25,000/- which are exorbitant and contrary to the dictum of the Honble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Others, (2017) AIR SC 5157. In terms of the said judgment, the consortium has to be paid only Rs. 40,000/- , towards loss of estate would be Rs. 15,000/- and towards transportation of dead body would be Rs. 15,000/-. To that extent, the compensation under the conventional heads awarded by the Tribunal has to be modified.

17. The material on record also clearly depicts that the petitioner was a permanent employee of the appellant i.e. NWKRTC and was earning a salary as per Exs.P8 and P9. In view of the dictum of the Honble Supreme Court in the case of Pranay Sethi, wherein paragraph No.61(iii) held as under:

"61. ( i i i) While determining the income, an addi tion of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addi tion should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addi tion should be 15%. Actual salary should be read as actual salary less tax."

In view of the above, the calculation made by the Tribunal may not be correct in the facts and circumstances of the present case.

18. Though Sri S.L. Matti, the learned counsel for the Corporation submits that the gross salary taken by the Tribunal is erroneous, but no material documents and authorities are produced before this Court that the salary or monthly income of the deceased should not be taken into consideration.

19. HonBle Supreme Court while considering the provisions of Section 168 of the Motor Vehicles Act, 1988 in the case of National Insurance Co. Ltd. Vs. Indira Srivastava and Others in paragraph Nos.8 to 10 held as under:

"8. The term income has dif ferent connotations for dif ferent purposes. A Court of law, having regard to the change in societal condi tions must consider the question not only having regard to pay pocket the employee carries home at the end of the month but also other perks which are benef icial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated in monetary terms.

9. Section 168 of the Act uses the words just compensation which, in our opinion should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratui ty and other perks to attract the people who are ef f icient and hard-working. Dif ferent of fers made to an of f icer by the employer, same may be either for the benef it of the employee himself or for the benef it of the entire family. In some facil i ties are being provided whereby the entire family stands to benef it, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the ki th and kin of the appl icants is required to be determined. For the aforementioned purpose, we may notice the elements of pay, paid to the deceased.

Basic

Rs.63,400

Conveyance al lowance

Rs.12,000

Rent co. lease

Rs.49,200

Bonus (35 per cent of basic

Rs.21,840

Total

Rs.1,45,440

In addi tion to above, his other enti tlements were.

Con. to PF 10 per cent

basic

Rs.6,240 p.a.

LTA reimbursement

Rs.7,000 p.a.

Medical reimbursement

Rs.6,000 p.a.

Superannuation 15 per

cent of basic

Rs.9,360 p.a.

Gratui ty cont. 5.34 per

cent of basic

Rs.3,332 p.a.

Medical pol icy self and

family

Rs.55,000 p.a.

Education scholarship at

the rate of Rs. 500

payable to his two

children directly.

Rs.12,000 p.a.

10. There are three basic features in the aforementioned statement which require our consideration :

(1) Reimbursement of rent would be equivalent to HRA;

(2) Bonus is payable as a par t of salary and

(3) Contribution to the provident fund."

20. In view of the aforesaid reasons, the first point that raised in these appeals has to be answered in the affirmative in part holding that the appellant- NWKRTC is made out a case for modification of the judgment and award passed by the Tribunal in respect deductions of Professional Tax and granting more compensation towards conventional heads. Accordingly, point No.2 has to be answered in the affirmative holding that the claimants have made out a further case for enhancement.

21. If the income of the deceased is taken as Rs. 21,416 X 12 = Rs. 2,56,992/-, the tax exempted is upto Rs. 2,50,000/- and the deceased is liable to pay income tax to the remaining amount of Rs. 6,992/- at the rate of 5%. After deductions of the income tax of Rs. 349.60, the total amount would be Rs. 2,56,642/- and after deducting the professional tax of Rs. 2400/- (Rs.200x12), the income of the deceased would be Rs. 2,54,242/-. In terms of the dictum of the Honble Supreme Court, in the case of Pranay Sethi , 50% has to be added in the future prospects that would be Rs. 1,27,121/-. The total income of the deceased would be Rs. 3,81,363/- (Rs.2,54,242 +Rs.1,27,121). The Tribunal has wrongly proceeded to deduct 1/3rd instead of 1/4th as held by the Honble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation after deducting 1/4th out of Rs. 3,81,363/- i.e., Rs. 95,341/-, actual income of the deceased would be Rs. 2,86,022/- and adopting multiplier of 16, the total amount of Rs. 45,76,352/- (Rs.2,86,022 x 16) would be the loss of dependency.

IX. CONCLUSION

22. In view of the aforesaid reasons and after reassessing the entire material on record, the claimants are entitled the just compensation which reads as follows:

Sl.No.

Particulars

Amount(in Rs. )

1

Towards loss of dependency

45,76,352/-

2

Towards loss of consortium (instead of Rs. 50,000 awarded by the Tribunal)

40,000/-

3

Towards loss of estate (instead of Rs. 1,25,000/- awarded by the Tribunal)

15,000/-

4

Towards loss of love and affection of mother and four children.

1,25,000/-

5

Towards transportation of dead body

15,000/-

Total

47,71,352/-

Less: compensation awarded by the Tribunal.

30,42,520/-

The enhanced compensation

17,28,832/-

The enhanced compensation would be Rs. 17,28,832/- payable by the Corporation to the L.Rs of the deceased/claimants.

23. In view of the above, both the miscellaneous first appeals are disposed of to the extent above. The impugned judgment and award dated 20.01.2017 made in MVC.No.1913/2015 on the file of the Senior Civil Judge and the Additional MACT, Saundatti is modified and claimants are entitled to an enhanced amount of Rs. 17,28,832/- with interest at the rate of 7% p.a. from the date of petition till its realization.

24. Apportionment, deposit and disbursement of the enhanced compensation amount shall be made in terms of the judgment and award of the Tribunal.

25. The amount in deposit by the NWKRTC shall be transmitted forthwith to the Tribunal for disbursement. Ordered accordingly.