Shakuntala Devi Agarwal And ... vs Mohd. Naim And Others
2017 Latest Caselaw 3857 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
Court No. - 34
 
Case :- FIRST APPEAL FROM ORDER No. - 1234 of 1992
 

 
Appellant :- Shakuntala Devi Agarwal And Others
 
Respondent :- Mohd. Naim And Others
 
Counsel for Appellant :- Madhav Jain
 
Counsel for Respondent :- Amit Singh
 

 
Hon'ble Saumitra Dayal Singh,J.

Certified copy of the award has got partially destroyed due to efflux of time. The appeal is 25 years old. Learned counsel for the parties have supplied an attested typed copy of the award today, which is retained on record.

This appeal has been filed by the claimants for enhancement of award of compensation made by the Motor Accident Claims Tribunal, Agra dated 23.05.1992 in M.A.C. Case No. 323 of 1990, by which an amount of Rs. 90,000/- together with interest @ 12% has been awarded to the claimant appellant no.1 only, arising from the death of Virendra Kumar on 03.04.1990.

It is not disputed, the deceased Virendra Kumar was 28 years of age on the date of accident being 3.4.1990 and was working as Senior Trains Clerk, drawing salary of Rs. 2,774/- per month. Learned counsel for the appellants submits that the award of compensation Rs. 90,000/- only to the mother of the deceased, ignoring the other two claimants namely unmarried sister and brother of the deceased is wholly inadequate and meagre.

He submits, no reason whatsoever has been assigned to disallow the claim made by the appellant nos. 2 and 3 being unmarried sister and brother of the deceased.

Further, perusal of the award reveals that the compensation has been awarded, applying multiplier with reference to the age of the claimant-mother of the deceased that too at a frugal rate of Rs. 500/- per month.

In view of the above, the award cannot be sustained for reason of it being wholly inadequate and against the settled principles of law as laid down by the Supreme Court in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another reported in AIR 2009 SC 3104.

Considering the fact that the deceased was Senior Trains Clerk in Western Railway and was drawing salary of Rs. 2,774/- per month and was only 28 years of age, on the date accidental death, future prospects @ 50% ought to have been provided for the purpose of computation of loss of dependency.

Accordingly, the income of the deceased is taken Rs. 4,161/- (2774 + 1387). Considering the fact deceased was a bachelor, 50% deduction is to be made towards personal expenses being Rs. 2080.5/- leaving the balance Rs. 2080.5/- to be applied towards annual loss of dependency (Rs. 2080.5 X 12). Considering the deceased 28 years of age, the multiplier of 17 is to be applied as per the decision in the case of Sarla Verma (supra). Resulting in total loss of dependency of Rs. 4,24,422/- (24,966 x 17).

Then it is noted, nothing has been awarded towards non-pecuniary losses, which were allowable to the claimants. Thus, an amount of Rs. 50,000/- towards loss of love and affection, Rs. 25,000/- towards loss of estate, Rs. 25,000/- towards loss of pain and suffering are also allowable. Thus total compensation awarded to the claimants is enhanced from Rs. 90,000/- to Rs. 5,24,422/-.

Learned counsel for the respondent-insurer has contended that the claim petition had been filed for award of compensation Rs. 2,00,000/- only. Therefore, the relief be confined to that amount only.

The objection must be rejected. The Supreme Court has in the case of United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509 : (2012) 1 SCC (Cri) 328 : (2012) 3 SCC (Civ) 798, has held as below :

"10. A claim petition for compensation in regard to a motor accident (filed by the injured or in case of death, by the dependent family members) before the Motor Accidents Claims Tribunal constituted under Section 165 of the Act is neither a suit nor an adversarial lis in the traditional sense. It is a proceedings in terms of and regulated by the provisions of Chapter XII of the Act which is a complete code in itself. We may in this context refer to the following significant aspects in regard to the Tribunals and determination of compensation by the Tribunals:

(i) Proceedings for award of compensation in regard to a motor accident before the Tribunal can be initiated either on an application for compensation made by the persons aggrieved (the claimants) under Section 166(1) or Section 163-A of the Act or suo motu by the Tribunal, by treating any report of accident (forwarded to the Tribunal under Section 158(6) of the Act as an application for compensation under Section 166(4) of the Act).

(ii) The rules of pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.

(iii) In a proceedings initiated suo motu by the Tribunal, the owner and driver are the respondents. The insurer is not a respondent, but a notice under Section 149(2) of the Act. Where a claim petition is filed by the injured or by the legal representatives of a person dying in a motor accident, the driver and owner have to be impleaded as respondents. The claimants need not implead the insurer as a party. But they have the choice of impleading the insurer also as a party-respondent. When it is not impleaded as a party, the Tribunal is required to issue a notice under Section 149(2) of the Act. If the insurer is impleaded as a party, it is issued as a regular notice of the proceedings.

(iv) The words "receipt of an application for compensation" in Section 168 refer not only to an application filed by the claimants claiming compensation but also to a suo motu registration of an application for compensation under Section 166(4) of the Act on the basis of a report of an accident under Section 158(6) of the Act.

(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. On receipt of an application (either from the applicant or suo motu registration), the Tribunal gives notice to the insurer under Section 149(2) of the Act, gives an opportunity of being heard to the parties to the claim petition as also the insurer, holds an inquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. (Vide Section 168 of the Act.)

(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry. (Vide Section 169 of the Act.)

(vii) The award of the Tribunal should specify the person(s) to whom compensation should be paid. It should also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them. (Vide Section 168 of the Act.)

(viii) The Tribunal should deliver copies of the award to the parties concerned within 15 days from the date of the award. (Vide Section 168(2) of the Act.)

We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.

That being the nature of proceedings, the Tribunal and this Court, in appeal is duty bound to itself ensure a just, fair, proper and reasonable amount of compensation is awarded. The burden placed on the claimants ends upon their leading evidence to establish the facts such as occurrence of accident, death, element of negligence (in cases under section 166), age, the nature of employment and last salary drawn by the deceased and other facts and factors relevant to help the Tribunal work out the compensation amount that is just, fair, reaonable and proper. Thereafter, it is the duty of the Tribunal to work out that amount, applying the correct legal principles and to ensure the amount gets delivered to the claimants.

It also cannot lost sight the value of rupee had fast depreciated. The accidental death occurred in the year 1990 whereas at present 27 years have passed during which period the awarded value has been depreciated. It may have lost much meaning both in terms of rupee value of the claim awarded as also in real terms, owing to the huge delay caused in deciding this appeal, for which the Court can do nothing but regret.

It would be wholly unfair to the claimant to be first denied their due in law when it became due in the first place (before the Tribunal) and now again, because of the technicality cited by learned counsel for the insurer, especially, when no additional amount was payable towards court fees if the claim and or the appeal had been lodged for the amount being awarded by this court.

Also, one cannot loose sight, the deceased was a permanent government employee. The total total award would be wholly inadequate if compared to the benefits the deceased would have received had he been alive today, salaries have grown in geometric progression over the last two decades.

In any case, enhancement being made does not result in award of an amount which is so exorbitant as to allow for the technicality to stand in way of the court while awarding just and fair amount of compensation as per the judgment of the Supreme Court.

Accordingly, the objection so raised is not accepted. It may be considered in appropriate case where the award of compensation may be such as may appear to be adequate or fair.

The differential amount of Rs. 4,34,422/- together with interest @ 9% from the date of filing to the claim petition till date of deposit, shall be deposited by the insurer with the Tribunal within three months from today to be paid out to the claimants forthwith upon such deposit being made.

Also, of the amount of enhancement of compensation a sum of Rs. 50,000/- each together with proportionate interest shall be paid to the appellant nos. 2 and 3 and the balance amount shall be paid to the appellant no.1-mother of the deceased.

The appeal is allowed. No order as to costs.

Order Date :- 31.8.2017

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