Saurabh Gupta And Another vs Smt. Hasrati And Another
2017 Latest Caselaw 7878 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved 
 

 
Case :- FIRST APPEAL FROM ORDER No. - 447 of 2015
 

 
Appellant :- Saurabh Gupta And Another
 
Respondent :- Smt. Hasrati And Another
 
Counsel for Appellant :- Balendu Shekhar,Avnish Mani Tripathi
 
Counsel for Respondent :- Bhanu Prakash Dubey
 

 
Hon'ble Shabihul Hasnain,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Sheo Kumar Singh-I, J.)

1. This First Appeal From Order has been preferred under Section 173 of the Motor Vehicles Act against the judgment and order dated 28.02.2015 passed by Motor Accident Claims Tribunal/Special Judge (E.C.) Act, Lucknow, in Motor Accident Claim Petition No.138 of 2010- Saurav Gupta and another v. Smt. Hasrati and another, whereby the claim petition filed by the claimants was dismissed by the learned Tribunal shifting 100% responsibility of the deceased in a case of accident.

2. Aggrieved by the order of the learned Tribunal, this appeal has been filed with the contention that the learned Tribunal has erred in deciding the case shifting 100% liability on the deceased.

3. The brief facts giving rise to filing of the present appeal are that Priyanka Negi was coming from Delhi to Lucknow with her husband Saurav Gupta, appellant no.1, and his friend Vaibhav with Car No. DL 03 TC (SZ) 809 and when she reached near Ravi Filling Station falling in territorial jurisdiction of Police Station Fatehganj East in Bareilly on Delhi- Lucknow National Highway, collided with the vehicle Truck No.HR 63 A 5656 parked by the Driver in the wrong direction without any indicator, parking light or reflector, causing serious injuries to Priyanka Negi, who died later on due to injuries sustained in the accident. Saurav Gupta also sustained injuries and after preliminary treatment she was discharged from the hospital. After the incident, the driver of the truck left the vehicle and flew away. The deceased Priyanka Negi was about 28 years' old at the time of accident and was working as Country Manager and getting a salary of Rs.8,00,000/- per annum. The first information report was lodged at the Police Station Fatehganj East in District Bareilly and after investigation, the charge sheet was filed before the Court. The appellants Saurav Gupta and Smt. Laxmi Devi, husband and mother-in-law of the deceased, filed claim petition before the learned Tribunal and the learned Tribunal, after considering the pleadings of the parties, framed five issues to the effect that as to whether on 27.02.2010 at about 04.30 AM near Ravi Filling Station Police Station Fatehganj East in District Bareilly the vehicle Truck was negligently parked in the wrong side in violation of the rules causing serious injuries to Priyanka Negi who died due to the accident and as to whether the Truck driver had a valid and effective driving license at the time of accident and as to whether the Truck was insured at that time. Issue no.4 was framed to the effect as to whether the driver of the Car was negligent and as to what relief the claimants are entitled. After going through the record and evidence, learned Tribunal analyzed that it was the fault of the driver of the Car who had not stopped the vehicle even after seeing the Truck from a distance of at least 500 meters and if the driver of the Car had taken proper care and attention and had used the brake, the accident could have been avoided. The Tribunal found the driver of the Car fully responsible for causing injuries and thus dismissed the petition.

4. Learned counsel for the appellants has submitted that the accident took place during the use of motor vehicle and the claimants are fully entitled for claim. It is admitted case that the accident took place while the deceased was driving the vehicle and was coming Delhi to Lucknow and she died due to injuries sustained in the accident. There is no dispute that the deceased was 28 years' of age at the time of accident and was a working woman. It is also not in dispute that after investigation the police had submitted charge sheet against the driver of the Truck involved in this accident.

5. Learned counsel for the Insurance Company has submitted that the accident did not take place due to any negligence on the part of the driver of the Truck or the facts do not come within the category of accident.

6. As pointed out by the learned counsel for the appellants, the Motor Vehicles Act does not define the word accident. However, Section 163A of the Motor Vehicles Act provides for payment of compensation for the death or injury suffered in a motor vehicle accident on a structured formula basis in Section 163A of the Act. Sub-clause (I) of the said Section says that notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be; Sub-section (2) of the said Section also provides, in any claim for compensation under that sub-section, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. A conjoint reading of the above two sub-clauses of Section 163A shows that a victim or his heirs are entitled to claim from the owner/Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle without having to prove wrongful act or neglect or default of any one. Thus it is clear, if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the contention of the Insurance Company is that the death of the deceased was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words death due to accident arising out of the use of motor vehicle. The question, therefore, is can a murder be an accident in any given case ? There is no doubt that murder, as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts . The difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.

7. In Challis vs. London and South Western Railway Company (1905 2 Kings Bench 154), the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held:

"The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver; in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the Legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously."

8. Learned counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word death and the legal interpretations relied upon by us are with reference to definition of the word death in Workmens Compensation Act the same will not be applicable while interpreting the word death in Motor Vehicles Act because according to him, the objects of the two Acts are entirely different. He also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmens Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word death in Workmens Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also.

9. In the case of Shivaji Dayanu Patil & Anr. vs. Vatschala Uttam More (1991 (3) SCC 530) the Court while pronouncing on the interpretation of Section 92A of the Motor Vehicles Act, 1939 held as follows :

"Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose."

10. In that case in regard to the contention of proximity between the accident and the explosion that took place the Court held : This would show that as compared to the expression caused by, the expression arising out of has a wider connotation. The expression caused by was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression arising out of which indicates that for the purpose of awarding compensation under Section 92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression arising out of the use of a motor vehicle in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.

11. After registration of the first information report the police investigated the offence and submitted a charge sheet with regard to negligence of the Truck driver.

12. As discussed above, we have no hesitation in coming to the conclusion that the death of the deceased was due to an accident arising out of the use of the motor vehicle, therefore, the trial court wrongly came to the conclusion that the claimants were not entitled for compensation as claimed by them. The similar facts were discussed in the case of Rita Devi (Smt.) and others v. New India Assurance Co. Ltd. And another - Civil Appeal No.3021 of 2000 decided on 27.04.2000 wherein Hon'ble the Apex Court held that if the accident took place during the use of motor vehicle then it is fully covered within the Motor Vehicles Act.

13. A perusal of record and evidence reveals that the death took place by reason of an accident caused by use of a motor vehicle, thus, the same cannot be ignored only on the basis that the driver of the Car was also negligent and had not taken proper care. Some discrepancies in the evidence of the claimants/witnesses might have occurred but the core question before the Tribunal was as to whether the Truck in question was involved in the accident or not. For the purpose of determining the said issue the Tribunal was required to apply the principle underlying the burden of proof in terms of the provisions of the Motor Vehicles Act and as to whether the deceased died due to the use of the motor vehicle or not.

14. In the case of Vimla Devi (2009) 13 SCC 530, it was held that lodging of the first information report is sufficient to prove that the accident had taken place.

15. Learned counsel for the appellants has relied upon Rule 15 of the Rules of the Road Regulations, 1989 for parking of the vehicles or for use of motor vehicles on the highways or the roads, which is quoted below:-

15. Parking of the vehicle. (1) Every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner.

(2) A driver of a motor vehicle shall not park his vehicle:

(i) at or near a road crossing, a bend, top of a hill or a humpbacked bridge;

(ii) on a foot-path;

(iii) near a traffic light or pedestrian crossing;

(iv) in a main road or one carrying fast traffic;

(v) opposite another parked vehicle or as obstruction to other vehicle;

(vi) alongside another parked vehicle;

(vii) on roads or at places or roads where there is a continuous white line with or without a broken line;

(viii) near a bus stop, school or hospital entrance or blocking a traffic sign or entrance to a premises or a fire hydrant;

(ix) on the wrong side of the road;

(x) where parking is prohibited;

(xi) away from the edge of the footpath.

16. Learned counsel for the appellants has submitted that after the investigation by the police charge sheet was submitted against the driver of the Truck which shows that the Truck was at fault. PW-1, an eyewitness, has stated that the Truck had violated the rules of the Motor Vehicles Act and accident occurred due to negligent parking of the Truck.

17. Learned counsel for the respondent Insurance Company has submitted that even if there was fault on the part of the Truck the case falls within the category of contributory negligence.

18. Let us first deal as to whether the case comes within the category of the contributory negligence.

19. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 Indian Penal Code. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated Under Section 279 Indian Penal Code is attracted.

20. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.

21. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.

22. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the Indian Penal Code that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent such happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct.

23. In the case of Nageshwar Shri Krishna Ghobe v. State of Maharasthra MANU/SC/0182/1972 : (1973) 4 SCC 23, the Court observed that the statements of the witnesses who met with an accident while travelling in a vehicle or those of the people who were travelling in the vehicle driven nearby should be taken and understood in their correct perspective as it is not necessary that the occupants of the vehicle should be looking in the same direction. They might have been attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. The Court held as under:

"6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of coincidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured."

24. After perusal of the evidence on record and the statement of the witness, we are of the view that there was no contribution on the part of the deceased in commission of the incident. The doctrine of contributory negligence cannot be fastened on the deceased after her death because she is not here to depose anything or to defend herself. Once it is proved that after the investigation charge sheet was filed and the driver of the offending vehicle had violated the rules and safety norms as laid down in the Motor Vehicles Act, the offending vehicle is fully responsible for the occurrence of the incident and since the accident took place during the use of the motor vehicle and the injured died, the claimants are entitled for the award of compensation.

25. The expression 'just compensation' has been explained in Sarla Verma's case - AIR 2009 SC 3104, holding that the compensation awarded by a Tribunal does not become just compensation merely because the Tribunal considered it to be just. 'Just Compensation' is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. After surveying almost all the previous decisions, the Court almost standardized the norms for the assessment of damages in Motor Accident Claims.

26. In a recent decision, in Santosh Devi v. National Insurance Co. Limited and Ors. MANU/SC/0322/2012 : (2012) 6 SCC 421, Sarla Verma's case has further been explained with regard to the settled norms. It has been held in Paragraph 11 as follows:

"11. We have considered the respective arguments. Although, the legal jurisprudence developed in the country in last five decades is somewhat precedent-centric, the judgments which have bearing on socioeconomic conditions of the citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast-changing societal values, the effect of globalisation on the economy of the nation and their impact on the life of the people."

27. Consequently, it has been held at Paragraphs 14 to 18, as follows:

"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.

15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their families.

16. The salaries of those employed under the Central and State Governments and their agencies/ instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.

17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.

18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."

28. Since, the Court actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.

29. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.

30. Whether the Tribunal is competent to award compensation in excess of what is claimed in the Application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case.

"Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."

31. The principle was followed in the later decisions in Oriental Insurance Co. Limited v. Mohd. Nasir and Anr. MANU/SC/0899/2009 : AIR 2009 SC 1219 and in Ningamma and Anr. v. United Indian Insurance Co. Limited MANU/SC/0802/2009 : (2009) 13 SCC 710.

32. Underlying principle discussed in the above decisions is with regard to the duty of the Court to fix a just compensation and it has now become settled law that the Court should not succumb to niceties or technicalities, in such matters. Attempt of the Court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim.

33. There is another reason why the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. After the amendment of the Act by Act No. 54 of 1994 with effect from 14.11.1994, the Report on motor vehicle accident prepared by the police officer and forwarded to the Claims Tribunal under Sub-section (6) of Section 158 has to be treated as an Application for Compensation.

34. Section 158 (6) of the Act reads as follows:

"158. Production of certain certificates, licence and permit in certain cases.-

(1) to (5) xxx

(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and, where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer."

35. Section 166(4) of the Act reads as follows:

"166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act."

36. Prior to the amendment in 1994, it was left to the discretion of the Tribunal as to whether the report be treated as an application or not. The pre-amended position under Sub-section (4) of Section 166 of the Act, read as under:

"(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this Act, the Claims Tribunal may, if it thinks it necessary so to do, treat the report as if it were an application for compensation under this Act."

37. When an Appeal is filed under Section 173 of the Motor Vehicles Act, 1939 before the High Court, the normal Rules which apply to Appeals before the High Court are applicable to such an Appeal also. Even otherwise, it is well settled position of law that when an Appeal is provided for, the whole case is open before the Appellate Court and by necessary implication, it can exercise all powers incidental thereto in order to exercise that power effectively. A bare reading of Section 173 of the Act also reflects that there is no curtailment or limitations on the powers of the Appellate Court to consider the entire case on facts and law.

38. It is well settled that the right of Appeal is a substantive right and the questions of fact and law are at large and are open to Review by the Appellate Court. Thus, such powers and duties are necessarily to be exercised so as to make the provision of law effective.

39. Generally, finding of fact recorded by Tribunal should not be interfered with in an Appeal until and unless it is proved that glaring discrepancy or mistake has taken place. If the assessment of compensation by the Tribunal was fair and reasonable and the award of the Tribunal was neither contrary nor inconsistent with the relevant facts as per the evidence available on record then as mentioned hereinabove, the High Court would not interfere in the Appeal. In the case in hand, nothing could be pointed out to us as to what were the glaring discrepancies or mistakes in the impugned Award of the Tribunal, which necessitated the Appellate Court to take a different view in the matter.

40. While deciding the case of National Insurance Company Limited v. Pranay Sethi; MANU/SC/1366/2017, the Supreme Court in Para-61 has held as follows:

"61. In view of the aforesaid analysis, we proceed to record our conclusions:-

(i).... (ii)....

(iii) While determining the income, an addition 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 addition 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 addition should be 15%. Actual salary should be read as actual salary less tax.

(iv). ... (v)... (vi)..

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

41. Once it is proved that the claimants are entitled for award of compensation, the next question, which is to be determined, is the income of the deceased and the multiplier. The perusal of the record reveals the income of the deceased on the basis of income tax return and other sources. The income tax reveals the following annual income:-

ITR for Assessment year

Annual income in Rs.

Tax in Rs.

2008-2009

301087

2009-2010

131987

Nil

2010-2011

ITR

158764 (in form 16-A)

179829

Nil

42. It is alleged by learned counsel for the appellants that the deceased had got an appointment letter from Tulyasys Technologies Private Limited on 15.02.2010 for a job as a Country Manager on the annual agreed startling salary of Rs.8,00,000/- per annum to be paid in monthly installments but unfortunately the accident took place on 27.02.2010 at about 04.30 AM and she expired. She was paid an amount of Rs.25,641 for the period 17.02.2010 to 27.02.2010 i.e. for ten days.

43. Now the question is what should be the method for calculation of annual income. The salary for ten days on the basis of rupees eight lakhs per annum has been challenged by the Insurance Company on the ground that when the accident had taken place on 27.02.2010 at 04.30 AM, it cannot be calculated for the day i.e. 27.02.2010 and the calculation is either wrong or it has been obtained only to file the claim petition for enhancement of the award. On the basis of above, the assessment year 2010-2011 which is financial year 2009-2010 should be taken into account for the reasons that the accident took place on 27.02.2010 and for that relevant financial year, the income of the deceased was shown in the income tax return as Rs.1,79,829/-.

44. In light of Pranay Sethi's case, mentioned above, while determining the income an addition of 50% of the actual salary of 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. If we calculate the future prospects, it comes to Rs.89914/-. Accordingly, we calculate the amount of compensation admissible to be paid to the claimants as under:-

 
i. Annual income as shown in the ITR	= Rs.1,79,829.00
 
ii. Addition of 50% future prospects		=Rs.89914.00
 
iii. Deduction of 1/3 on personal 
 
	expenditure as per rule 			= Rs.89914.00
 

 
iv. Net income for calculation = 
 
	(i + ii) - iii	= (1,79,829 + 89914) - 89914
 
	 = Rs.1,79,829.00
 
v. Multiplication	 (M x 17)	= 1,79,829 x 17 =30,57,093.00
 
vi. Loss of Estate		=Rs.15,000.00
 
vii. Loss of Consortium		= Rs.40,000.00
 
viii. Funeral expenses		=Rs.15,000.00
 
Total amount admissible		=Rs.31,27,093.00
 

45. Accordingly, the appeal and the claim petition are allowed. The claimants are entitled for payment of Rs.31,27,093/- with interest at the rate of 6% per annum from the date of filing of the claim petition till actual payment is made. The amount of compensation will be equally divided between the claimants. 60% amount of the claim shall be kept in the form of term deposit in a Nationalized Bank and the rest amount shall be paid to the claimants. The New India Assurance Company is directed to pay the aforesaid amount within two months from today failing which the Tribunal shall proceed in accordance with law.

Dated: 12.12.2017.

 
A. Katiyar
 
(Sheo Kumar Singh-I, J.)     (Shabihul Hasnain, J.)