The New India Assurance Co. Ltd. vs Javitri Devi And 5 Ors.
2017 Latest Caselaw 3761 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1450 of 2014
 
Appellant :- The New India Assurance Co. Ltd.
 
Respondent :- Javitri Devi And 5 Ors.
 
Counsel for Appellant :- S.B.L. Gour
 
Counsel for Respondent :- Amit Kr. Sinha,Sunil Kumar Verma
 
Connected With
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1395 of 2014
 
Appellant :- Smt. Javitri Devi And 3 Others
 
Respondent :- The New India Assurance Com. Ltd. And 2 Others
 
Counsel for Appellant :- Amit Kumar Sinha
 
Counsel for Respondent :- S.B.L. Gour,Sunil Kumar Verma
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Krishna Singh,J.

(Delivered by Hon'ble Krishna Singh,J.)

FAFO 1395 of 2014 has been filed by the appellant/claimants being aggrieved against the impugned judgment and award dated 21.1.2014 passed by the Motor Accident Claim Tribunal / A.D.J -VI, Allahabad in M.A.C.P. No. 1019 of 2011 (Javitri Devi and others vs. The New India Assurance Com. Ltd. and others) awarding compensation to the tune of Rs.29,94,737/- alongwith 6% interest per annum inter-alia on the ground that the compensation awarded by the Tribunal is inadequate and also that the Tribunal has not worked out the compensation as contemplated in law, the award therefore, is liable to be enhanced.

The brief facts as stated before the Tribunal are that the deceased Dharmraj was resident of the Village-Khajuria, Police Station-Handia, District-Allahabad. At the time of accident, the age of the deceased was 58 years and he was posted as a Lecturer in Swami Karpatri Ji Mahraj Rajkiya Mahavidyalay, Pure Gosain, Raniganj, Pratapgarh. The salary of the deceased was Rs.1,00, 459/- per annum. On 5.10.2011 at about 9:00 A.M. while the deceased was waiting for a bus near the road-side. He met with an accident on account of rash and negligent driving of the Driver of Motor Vehicle / Truck bearing registration No.UP 70x 9914. The FIR of the said accident was registered at the Police Station-Handia vide Case Crime No.357 of 2011 under Sections-279 and 304A Indian Penal Code, post-mortem of the deceased was conducted. After investigation in the case, a charge-sheet was submitted by the police against the driver of the said motor vehicle. At the time of accident, the said motor vehicle was insured with the respondent / Insurance Company. Appellants/claimants are the legal representative of the deceased.

In support of claim three witnesses including Smt. Javitri Devi were examined on behalf of the claimants. The Tribunal on the basis of oral and documentary evidence adduced by the appellants/claimants has held that the deceased died on account of the injuries sustained by him in the road accident. On 5.10.2011 accident had occurred due to the rash and negligent driving of the said motor vehicle. As regards, the income of the deceased, the Tribunal assessed the same (after deduction of Rs.2,28,054/- as Income Tax) Rs.8,76,654/- per annum. The Tribunal after deduction of one-third (Rs.2,92,218/-) of the said amount as personal and living expenses of the deceased, assumed the dependency at Rs.29,64,737/-. Other claims were also awarded being Rs.7,500/- for funeral expenses, Rs.7,500/- for loss of consortium, Rs.7,500/- for loss of estate and Rs.7,500/- for loss of love and affection. Thus a total sum of Rs.29,94,737/- was awarded as compensation to the appellants alongwith the interest @ of 7% per annum from the date of filing of the claim petition till its realization.

Per contra, FAFO No.1450 of 2014 has been filed by the respondent/appellant, Insurance Company against the impugned judgment and award dated 21.1.2014 on the grounds that the FIR of the accident was lodged against the unknown driver, Police has filed a charge-sheet against Imtiyaz Ahmad son of Mohd. Sabbeer but the driving license submitted, was of Mumtaz son of Mohd. Shafi and the Tribunal committed grave error in believing testimony of Mumtaz Ahmad that both the names Imtiyaz Ahmad and Mohd. Shafi were aliases of him and his father while awarding the compensation. The Tribunal has overlooked the fact that on account of death of deceased the widow of the deceased was getting family pension and the younger son of the deceased got compassionate appointment. The Tribunal has overlooked the fact that only the widow was dependent on the deceased none of the other three claimants. Both the owner and the driver have denied any accident being caused by the truck, the Tribunal has erroneously relied upon the evidence of one eye-witness, who allegedly knew the deceased but did not lodge FIR nor is he mentioned as eye-witness in the charge-sheet. The Tribunal has also made several arithmentical/ calculation mistakes whilst quantifying the award. The impugned judgment and award even otherwise is bad in law and facts as well and is liable to be set aside.

Respondent, the owner of the offending vehicle has examined Mumtaz Ahmad alias Imtiyaz Ahmad as DW-1. He stated in his statement on oath that on the date of accident, he was the driver on the truck bearing registration No.UP 70x 9914. His name is Imtiyaz alias Mumtaz at the time of accident he held the effective and valid driving license to drive the offending vehicle.

We have heard the learned counsel for the parties and perused the record.

As the controversy involved in these appeals is identical, the same are being heard together and decided by a common judgment and order.

Learned counsel for the appellants/claimants has submitted that at the time of accident the age of deceased was 58 years, the Tribunal has wrongly applied the multiplier of 7 and according to the proposition of law laid down in the case of Smt. Sarla Verma and others vs. Delhi Transport Corp. and another, 2009 (3) AWC 2138 (SC) the multiplier of 9 should be applied. Learned counsel further submitted that the Tribunal has made wrong calculation while ascertaining the net income of the deceased after deducting the Income Tax from the gross salary of the deceased, the award therefore is to be enhanced.

Learned counsel for the respondent / appellant Insurance Company has submitted that impugned judgment and award passed by the Tribunal is illegal, arbitrary, erroneous and against the evidence on record and hence liable to be set aside.

In the case of Smt. Sarla Verma's case (supra), Hon'ble Apex Court in para 21 has held as under:-

" We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

It appears from the record that at the time of accident, the age of deceased was 58 years. In view of the law laid down by Hon'ble Apex Court, we find that the multiplier of 9 ought to have been applied which was appropriate in the facts and circumstances of the case. Since, the Tribunal has failed to apply the correct multiplier we are of the view that the multiplier of 9 should be applied. We accordingly provide that multiplier of 9 be applied.

It is evident from the impugned judgment and award that the Tribunal has made wrong calculation while ascertaining the net income of the deceased after deduction of Rs.2,28,054/- as Income Tax from the gross salary of the deceased. We accordingly provide that after deducting the due Income Tax from the gross salary of the deceased, impugned judgment and award needs to be modified.

In the case of Vimal Kanwar & Others vs. Kishore Dan & Others, 2013 (3) TAC 6 (SC), Hon'ble Apex Court has held that "Family pension or compassionate appointment cannot be termed as pecuniary advantage that comes under the periphery of Motor Vehicles Act."

In view of the law laid down by Hon'ble Apex Court we hold that family pension is a pecuniary advantage receivable by the claimant appellant Smt. Javitri Devi (wife of the deceased) on account of death of deceased family pension has no correlation with the amount receivable under a statute occasioned only on account of accidental death such an amount will not come within the periphery of the Motor Vehicles Act to be termed as pecuniary advantage liable for deduction. We further hold that the salary receivable by the claimant / appellant Kulmayank Singh (son of the deceased) on compassionate appointment cannot be termed as pecuniary advantage that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.

It is true that eye-witness Surendra Singh PW-2 did not lodge the FIR of this accident. It is also true that his name is not mentioned in the charge-sheet as an eye-witness but in our opinion on these grounds the testimony of PW-2 cannot be discarded, because he is an independent witness and he has no motive to give the false statement. In our opinion, he is a reliable witness.

It appears from the evidence available on record that after investigation, the Police has submitted a charge-sheet in Case Crime No.357 of 2011 against the driver of the offending vehicle under Sections-279, 304A of I.P.C. upon which cognizance has been taken by the Competent Judicial Magistrate under Section-190 of Cr.P.C. Owner of the offending vehicle has examined the charge-sheeted driver as DW-1. He has stated in his statement on oath that at the time of accident he was driving the offending vehicle. He further stated that at the time of accident he held a valid and effective driving license to drive the offending vehicle. After considering the entire facts and circumstances of the case, we are of the view that charge-sheeted accused the driver Imtiyaz Ahmad alias Mumtaz Ahmad son of Mohd. Sabbir, resident of Shankargarh, Police Station-Shankargarh, District-Allahabad is one and the same person and he is responsible for the accident in question. It is also evident from the statement of Smt. Javitri Devi PW-1 that she and her sons are the legal representatives of the deceased. We are of the view that appellants 1 to 5 being the legal representatives of the deceased are entitled to get the compensation for the death of deceased.

The Tribunal has allowed deduction of one-third of the income towards personal and living expenses of the deceased. There is no dispute on the above score. Therefore, one-third of the income of deceased shall stand excluded in determination of dependency.

Accordingly, the compensation payable to the appellants is worked out as under :-

Calculation of Income Tax for the relevant Financial Year (2011-2012):-

Annual Salary of deceased 			      Rs. 12,05,508/-
 
Contribution towards G.P.F. (8,000 x 12)  = Rs.96,000/-
 
Contribution towards G.I.S. (400 x 12)     = Rs.04,800/-
 
			Total			        = Rs.1,00,800/-
 
Deduction U/S 80 C of Income Tax
 
Act:-							    Rs. 1,00,000/-
 
Income After Deducation U/S 80 C of
 
Income Tax Act:-					    Rs. 11,05,508/-
 

 
(Taxable Income)
 
Upto Rs.1,80,000/-				         Nil
 
Rs.1,80,001/- to Rs.5,00,000/- @ 10%		Rs.32,000/-
 
Rs.5,00,001/- to Rs.8,00,000/- @ 20%		Rs.60,000/-
 
Rs.8,00,001/- to Rs. 11,05,508/- @ 30%		Rs.91,652,40/-
 
				Total			      Rs.1,83,652.40/-
 
						                Rs.1,83,650/-
 
	 	Add 3% Cess on total tax	      Rs.      5,510/-
 
		Net Tax Payable			      Rs.1,89,160/-
 

 

 

 
(a)
 
Annual salary of deceased
 
Rs.1,00,459/- per month
 
Rs.12,05,508/- per annum
 
(b)
 
Income Tax Payable
 
Rs.1,89,160/-
 
(c)
 
Salary of deceased less Income Tax
 
Rs.12,05,508 - Rs.1,89,160 = Rs.10,16,348/-
 
(d)
 
1/3rd Deduction towards personal and living expenses of the deceased.
 

 
Rs.10,16,348 - Rs.3,38,783 = Rs.6,77,565
 

 
(e)
 
Annual Dependency
 
Rs. 6,77,565/-
 
(f)
 
Multiplier Applicable with reference to the age of deceased as per the Sarla Verma's Case
 

 

 
(g)
 
Loss of  Dependency
 
Rs.6,77,565 x 9=Rs.60,98,085/-
 
(h)
 
Compensation awarded by the Tribunal towards conventional heads
 
Rs. 30,000/-
 

 
(I)
 
Total amount of compensation
 
Rs.61,28,085/-
 
(j)
 
Amount of compensation already awarded by the Tribunal
 
Rs.29,94,737/-
 
(k)
 
Amount enhanced by this Court
 
 Rs.61,28,085 - Rs.29,94,737
 
= Rs.31,33,348/-
 

On the basis of discussion made above, we are of the view that FAFO 1450 of 2014 is devoid of merit and is dismissed accordingly.

FAFO No.1395 of 2014 is disposed of by modifying the impugned judgment and award by increasing the compensation awarded from Rs.29,94,737/- to Rs.31,33,348/-.

The appellants-claimants will be entitled to the said sum of Rs.31,33,348/- in addition to what is already awarded with interest @ 7% per annum from the date of filing of the claim petition till the date of realisation. The increase in the compensation awarded by us shall be taken by the appellant Smt. Javitri Devi exclusively. The said sum shall be invested for one year in the maximum interest bearing scheme in the name of Smt. Javitri Devi.

Parties to bear respective costs.

 
Order Date :-29.8.2017
 
S Rawat
 

 
	(Krishna Singh,J.) 	  	   (Satyendra Singh Chauhan,J.)