In the present case, the deceased was in service. As far as determination of income by way of salary is concerned, the law has been laid down by the Apex Court in case of National Insurance Company Ltd. v. Indira Srivastava and others (MANU/SC/8201/2007 : AIR 2008 SC 845) (supra). In paragraph 10 (Para 9 of AIR) of its decision, the Apex Court held thus:-
10...If some facilities are being provided whereby the entire family stands to benefit, 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 kith and kin of the applicant is required to be determined.... {Para 16}
The ultimate conclusion is in paragraph 19 (Para 17 of AIR) of its judgment which reads thus:-
19 The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income by way of contribution to the family as contra distinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.
17. Thus, the well settled position of law is that the amounts which were paid to the deceased by way of perks should be taken into consideration for computation of monthly income provided the perks were for the benefit of the family of the deceased. However, the allowances which were meant only for his personal benefit cannot be taken into consideration. The income-tax will have to be deducted from the income while arriving at the income for determining multiplicand.
Due to absence of any evidence adduced by the first respondent to show that the Uniform Making Allowance, Uniform Washing Allowance, Transport Allowance, Conveyance, Medical Expenses were for the benefit of the family, the same cannot be taken into consideration for computing the loss of dependency. As far as the Academic Research Allowance is concerned, the same is payable as a perk apart from the basic salary. As suggested by the very name, it was not payable to the deceased by way of reimbursement of expenditure incurred by him. Hence, the benefit thereof was available not only to the deceased but also to his family members. Therefore, the said amount will have to be taken into consideration and will have to be added to the basic salary of Rs. 31,950/-. Thus, the gross salary comes to Rs. 34,950/- which can be rounded off to Rs. 35,000/-.
IN THE HIGH COURT OF BOMBAY
First Appeal No. 1068 of 2012
Decided On: 31.08.2012
National Insurance Co. Ltd. Vs. Vaishali Harish Devare and Ors.
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and Sadhana S. Jadhav, JJ.
Citation: 2014 ACJ 415 Bom, MANU/MH/2291/2012.
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