Amitav Kumar Gupta, J. - (1.) This appeal has arisen out of the judgment and award dated 31.7.2013 passed by the learned District Judge -cum -M.A.C.T. -VII, Dhanbad in Title (M.V.) Suit No. 121 of 2009 whereby the appellant was fastened with the liability and directed to pay the awarded compensation of Rs. 24,14,040/ - with interest @ 6% per annum from the date of filing of the application till the date of realization. The claimant -Madhulika Kumari is the wife of deceased -Saurav Kumar, driver of the Air Force vehicle bearing registration No. 6D/168498 on 11.1.2008 which was hit by a speeding truck No. HR -57 -A 4611 due to which deceased Saurav Kumar died on the spot. It is stated that he was employed as CLP (Corporal) (MTD Section) with the Indian Air Force and his salary was Rs. 9,341/ - per month (revised to Rs. 16,000/ - per month w.e.f. 1.1.2006). During the proceeding the evidence was laid by the parties whereafter the aforesaid impugned order was passed by the learned Tribunal.
(2.) Learned counsel on behalf of the appellant, United India Insurance Company Ltd. (for short the Insurer) has contended that the learned Tribunal has erred in not framing any issue on misjoinder and non -joinder of necessary parties in view of the fact that the appellant had raised objection that the owner of the Air Force vehicle was a necessary party and the case was one of contributory negligence. It has been urged that admittedly the F.I.R. reveals that this was a case of head -on -collision and the deceased himself contributed to the accident, consequently the claimants were not entitled to compensation and even if the compensation awarded is upheld the liability should be apportioned 50:50 between the owners of the truck and the Air Force vehicle. That the learned tribunal erred in not applying the principles of res ipsa loquitur and should have deducted 50% of the compensation amount on account of contributory negligence on the part of the deceased. It is argued that no witnesses were examined to substantiate or establish the fact that the deceased was a permanent employee and in the absence of such evidence, the enhancement of the income by 50% on account of future prospects is illegal. Learned counsel has stressed and emphasized that no document has been brought on record that the deceased was holding valid and effective driving licence and mere certificate of competency by the Wing Commander cannot be a documentary proof for establishing the factum that the deceased was holding a valid and effective driving license. That there is no statement by the claimant that they had not received any compensation amount under the Workmen's Compensation Act. It is argued that the learned tribunal has erred in computing the compensation by not deducting income tax and other deductions made as per Ext. -1 and has wrongly held that the income of the deceased was not within the taxable limit whereas it would be evident from Ext. -2 that Rs. 27,381/ - was deducted as income -tax for the year 2007 -2008 and it is settled principle that actual salary is calculated less the tax payable. It is contended that the compensation amount is highly inflated and exorbitant and the direction to pay interest @ 6% from the date of application has been passed without considering the fact that the claim application did not linger due to any fault of the appellant rather the protraction of the litigation took place due to the laches of the claimants. In support of his contention, learned counsel has relied on the decisions and judicial pronouncement reported in, 2004 (4) JLJR 670 :, 2008 (3) TAC 193 (Supreme Court),, 2007 (3) TAC 11 (Supreme Court) :, 2009 Vol. 3 JCR 351 (JHR.) :, (2008) Vol. 6 SCC 767 :, 2008 (4) JLJR 437. The aforesaid decisions have been filed on the point of contributory negligence and on the point of non -production of driving licence and apportionment of the compensation amount between the owners of the vehicle in case of contributory negligence and it is submitted that impugned order is not sustainable in law or on facts.
(3.) Per contra, learned counsel for the respondent has submitted that the learned tribunal has considered and appreciated the material evidence on record including the evidence of eye -witness -Ram Parwez (P.W. 4), and has rightly held that the accident took place on account of the rash and negligent driving of the driver of the truck, i.e., the offending vehicle. The evidence on record shows that the driver of the offending vehicle sustained minor injuries and one of the occupants of the Air Force vehicle, Monendra Kumar, survived the accident, however, Saurav Kumar, the driver of the Air Force vehicle died on the spot. It is submitted that the appellant has not brought any evidence on record to show that Saurav Kumar was at fault or his negligence contributed to the accident. That perusal of Ext. -2 (revised pay) makes it abundantly clear that the income of the deceased was within the tax exemption limit and it is apparent from the letter addressed to the Manager, S.B.I. Branch, Dhanbad with regard to payment of arrear amount of Rs. 66,170/ - to the deceased which shows that no income -tax was deducted consequently the computation of compensation is on the basis of actual salary and is in consonance with law. Learned counsel for the respondents has relied on the decision reported in, 2009 (2) JCR 172 (SC) and submitted that in the absence of any evidence mere pleading is no proof. He has referred to the decision reported in, 2009 AIR SCW 4992 regarding the settled steps to be followed for determining and computing compensation. He has also cited the decision in : 2008 ACJ 1165 on the point of contributory negligence and also relied on the decisions in, AIR 2015 514 :, 2014 AIR SCW 1709 and, 2008 Vol. 2 JLJR 96.;