Allahabad High Court

Smt. Medha Aggarwal And Others vs New India Insurance Co. And ... on 17 May, 2017

Bench: Ran Vijai Singh, Vinod Kumar Srivastava-Iii




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 38
 

 
Case :- FIRST APPEAL FROM ORDER No. - 688 of 2002
 

 
Appellant :- Smt. Medha Aggarwal And Others
 
Respondent :- New India Insurance Co. And Another
 
Counsel for Appellant :- Samir Sharma
 
Counsel for Respondent :- Saral Srivastava
 

 
Hon'ble Ran Vijai Singh,J.

Hon'ble Vinod Kumar Srivastava-III,J.

This claimants' appeal, for enhancement of the awarded amount, has been filed against the award/judgment and decree dated 11th February, 2002 passed by the Motor Accident Claims Tribunal/ IVth Additional District Judge, Ghaziabad in Motor Accident Claims Petition No. 205 of 2001 (Smt. Medha Aggarwal and Others Vs. The New India Insurance Company Ltd. And Another), by which the claim petition was partly allowed and the opposite party was directed to pay Rs. 5,25,000/- as compensation with 9% interest.

The award has been challenged on number of grounds; namely, (a) the Tribunal has erred in deducting the conveyance allowance, house rent allowance, education allowance, etc. from the income of the appellants; (b) the Tribunal has also erred in using the multiplier of 10; whereas, in view of the decision of the Hon'ble Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Another (2009 (2) TAC 677 SC), multiplier of 14 ought to have been applied as the age of the deceased was 44 years at the time of accident; and (c) the Tribunal has erred in not providing future prospect. In support of the submissions reliance has been placed upon few cases of the Hon'ble Apex Court, namely, Reshma Kumari and Others Vs. Madan Mohan and Another (2013 (9) SCC 65) (paras 38, 39 and 43.5); Surti Gupta Vs. United India Insurance Company & Aother (2015 (11) SCC 457) (para 9); Sandhya Rani Debaramma Vs. National Insurance Company and Another (2016 (4) TAC 165) (paras 13 and 14); Sarla Verma and Others Vs. Delhi Transport Corporation and Another (2009 (2) TAC 677 SC) (paras 10 and 11); Rajesh and Others Vs. Rajbir Singh and Others (2013 (9) SCC 54) (paras 8 and 9); and National Insurance Company Ltd. Vs. Pushpa and Others (2015 (9) SCC 166).

In the further submissions of learned counsel for the appellants, the Tribunal has further erred in deducting 1/3rd from the income of the deceased on account of personal expenses. In his submission, in view of the fact that the dependants were four in number, therefore, 1/4th deduction ought to have been made instead of 1/3rd. In support of his submissions, he has placed reliance upon the decisions of the Hon'ble Apex Court in Reshma Kumari and Others Vs. Madan Mohan and Another (2013 (9) SCC 65) (paras 40, 41 and 42) and Sandhya Rani Debaramma Vs. National Insurance Company and Another (2016 (4) TAC 165) (paras 13 and 14).

Refuting the submissions of Shri Samir Sharma, learned counsel for the appellants, Shri Saral Srivastava, learned counsel for the Insurance Company submitted that the Tribunal has erred in not deducting the amount of Rs. 500/- per month, which was payable towards the income tax and Rs. 1,000/- conveyance from the total income from the salary. In view of the fact that the petitioner's total salary was Rs. 8,460/- including the conveyance of Rs. 1,000/- and Rs. 500/- towards income tax, Rs. 1,500/-(1000+500) was to be deducted from the total salary of Rs. 8,460/- that will come to Rs. 6,960/-.

He has also contended that the claimants will not be entitled to any future prospect in view of the law laid down by the Apex Court in Bhogireddi Varalakshmi and Others vs. Mani Muthupandi and others; 2017 (2) TAC 3 (SC). In his submissions taking note of confronting decisions with regard to the future prospect in the case of Reshma Kumari (Supra) and Rajesh and others (Supra) and pending reference in National Insurance Company Limited vs. Pushpa; SLP (Civil) No. 16735 of 2014, the Supreme Court has passed an interim order, where the future prospect was granted by the Tribunal. In his submissions pending reference to the Larger Bench, the future prospect cannot be granted to the applicants-appellants and the Tribunal has rightly refused to grant the future prospect to the appellants. In addition to that, he has also submitted that there was no evidence on record to suggest that the deceased was working on the permanent post, therefore the Tribunal has rightly refused to grant future prospect. In his submissions even the Rules of 2011 will not be applicable in the case of the applicants-appellants as here the accident took place on 17.12.2000. In support of his submission he has placed reliance upon the Division Bench judgment of this Court in ICICI Lombard General Insurance Co. Ltd. Vs. Smt. Beena Devi and others 2014 (7) ADJ 328 (DB) Allahabad High Court.

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

Shri Sharma, learned counsel for the appellants has contended that the Tribunal has erred in not including the conveyance allowance, house rent allowance and education allowance in the income of the petitioner. In support of his submissions he has placed reliance upon the judgment of the Apex Court in Sunil Sharma and others vs. Bachitar Singh and others; (2011) 11 SCC 425, wherein it has been held that the deduction made by the Tribunal on account of HRA, CCA and medical allowances are done on incorrect basis and should have been taken into consideration in calculating the income of the deceased. Further, the deduction towards EPF, GIC should also not have been made in calculating the income of the deceased; meaning thereby, the amount received towards HRA, CCA, EPF and GIC is to be included in the total income of the deceased.

In his further submissions in view of the fact that the deceased was Accountant and was being paid Rs. 1,000/- towards conveyance, it can be safely presumed that amount was being enjoyed by the family members. In his submission, the Tribunal has erred in deducting the aforesaid amount from the total income of the deceased. He has also placed reliance upon the another Judgment in Kanhsingh and another vs. Tukaram and others; (2015) 11 SCC 343.

Considering the submissions of learned counsel for the parties, we are of the view that the Tribunal has erred in deducting the house rent allowance of Rs. 1,000/- and education allowance of Rs. 300/-(total Rs. 1,300/-) from the income of the deceased.

So far as his submission regarding inclusion of Rs. 1,000/- for conveyance allowance in the total income is concerned, his submission appears to be laudable, but in view of the law laid down by the Apex Court in National Insurance Company vs. Indira Srivastava; 1 (2008) ACC Page 162 (SC) and in National Insurance Company vs. Saroj and others; 2009 (13) SCC page 508, the benefit of the conveyance cannot be included in the total salary of the deceased as the aforesaid benefit can be taken to be incidental to the employment and personal to the deceased that the loss of the dependency was to be computed on the salary (+..).

Shri Sameer Sharma has next contended that the Tribunal has erred in not providing the future prospect to the applicants and in that regard he has placed reliance upon the judgment of the Apex Court in the case of Reshma Kumari (Supra) and Suruti Gupta (Supra), whereas Shri Saral Srivastava, taking shelter of the judgment of the Apex Court in the case of Bhogireddi Varalakshmi and Others vs. Mani Muthupandi and others (Supra), submitted that the appellants-applicants would not be entitled to be provided any future prospect.

Needless to say that apart from the aforesaid judgments in State of U.P. Rules have been framed known as U.P. Motor Vehicles Rules of 1998, which has been amended by inserting Rule 220-A (3)(II), which provides that 30% towards future prospect and the same has to be added in the actual salary of the deceased if the age of the deceased was in between 40 to 50 years.

Shri Srivastava, learned counsel for the respondent placing reliance upon the Division Bench judgment of this Court in the case of ICICI Lombard General Insurance Co. Ltd. Vs. Smt. Beena Devi and others 2014 (7) ADJ 328 (DB) contended that Rule 220-A of the Rules has been inserted in the year 2011; whereas, here the accident took place in the year 2000, therefore, the said Rule will not be applicable from retrospective effect, as there is no mention in the Rules that this Rule shall be applicable from the retrospective effect.

This Court, dealing with such situation while deciding the First Appeal From Order No. 2190 of 2010 (ICICI Lombard General Insurance Company Ltd. vs. Smt. Reena Tyagi), taking note of the judgment of the Apex Court in Narayan Guin and others vs. Niranjan Modak, AIR 1985 SC 111, has held that if during the pendency of the appeal, any change in law occurs, it has to be taken into account and the rights of the parties has to be governed according to the amended law.

We have also taken the same view in First Appeal From Order No. 2819 of 2005 (Surja Devi vs. U.P. State Road Transport Corporation and another) decided by us vide order of date, hence in view of the forgoing discussions, we find that the Tribunal has erred in not adding the future prospect in the actual income of the deceased.

Shri Sharma has next contended that the Tribunal has erred in using the multiplier of 10, whereas in view of law laid down by the Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another; (2009) 6 SCC 121, the multiplier of 14 ought to be applied as the age of deceased was 44 years.

The legal preposition laid down by the Apex Court in the case of Sarla Verma (Supra) could not be disputed by learned counsel appearing for the respondents, therefore, we find that the Tribunal has erred in using the multiplier of 10 instead of 14. We provide the multiplier of 14 has to be applied while computing the total income of the deceased.

Shri Sameer Sharma has further contended that the Tribunal has erred in not adding the amount of bonus in the total income of the deceased.

Suffice it to say that before the Tribunal neither this ground was taken nor any evidence was produced showing that deceased was getting the bonus. However, belated efforts has been made by way of filing an application under Order 41 Rule 27 of the Code of Civil Procedure being Application No. 182519 of 2002, which has been rejected by us vide order of date. Therefore, we find no substance in the submission of learned counsel for the appellants for adding the amount of bonus in the total income of the deceased.

Shri Sharma has further contended that the Tribunal has erred in deducting 1/3rd amount from the total income, whereas in the case of the appellants, the number of family members were four.

Refuting the submission of Shri Sharma, Shri Srivastava has contended that amongst the four claimants, father was also there, who according to the statement of the wife of the deceased, was the Principal of a college and getting pension. Therefore, we find no substance in the submission of learned counsel for the appellants, particularly in the circumstances, when the father of the deceased was not dependent upon him.

In view of the forgoing discussions, the entitlement of the appellants towards compensation can be summarized as under:-

(1) The Tribunal has erred in deducting Rs. 1,000/-, which was being paid to the deceased towards house rent allowance and Rs. 3,00/- towards education allowances.

(2) The Tribunal has further erred in applying the multiplier of 10, whereas in view of the judgment of Sarla Verma (supra), it was incumbent upon the Tribunal to apply the multiplier of 14 as the age of the deceased was 44 years at the time of accident.

(3) The Tribunal has also erred in not adding 30% future prospect in the actual salary of the deceased in view of Rule-A (3) (II) of the Rules.

(4) The Tribunal has further erred in not deducting Rs. 500/- per month from the salary of the deceased as the said amount had throughout been deducted towards the income tax.

Thus, in view of the foregoing discussions and observations made herein above, the entitlement of the appellants towards compensation will be as under:-

Monthly income from salary =

[(Pay+ H.R.A.+ Education Allowance)- Income Tax]:

(Rs. 6,160+Rs. 1,000/-+Rs. 300/- -Rs. 500/-) = Rs. 6,960/-

Annual income from salary:

Rs. 6,960 X 12 = Rs. 83,520/-

30% of (2) above to be added as future prospects:

Rs. 83,520/- + Rs. 25,056/- = Rs. 1,08,576/-

1/3rd of (3) deducted as personal expenses of deceased:

Rs. 1,08,576/- -- Rs. 36,192/- = Rs. 72,384/-

Compensation after multiplier of 14:

Rs. 72,384/- X 14 = Rs. 10,13,376/-

Loss of estate:

Rs. 20,000/-

Loss of consortium:

Rs. 20,000/-

Funeral expenses:

Rs. 5,000/-

Total compensation awarded:

Rs. 10,58,376/-

The claimant shall also be entitled to 7% simple interest on the awarded amount from the date of filing of the petition till the date of actual payment.

In view of the foregoing discussions, the appeal succeeds and is allowed. The judgment and decree dated 11th February, 2002 passed by the Motor Accident Claims Tribunal/ IVth Additional District Judge, Ghaziabad in Motor Accident Claims Petition No. 205 of 2001 (Smt. Medha Aggarwal and Others Vs. The New India Insurance Company Ltd. And Another) is modified to the extent as discussed herein above.

Order date:-17.5.2017

Sumaira/Amit

Case :- FIRST APPEAL FROM ORDER No. - 688 of 2002

Appellant :- Smt. Medha Aggarwal And Others

Respondent :- New India Insurance Co. And Another

Counsel for Appellant :- Samir Sharma

Counsel for Respondent :- Saral Srivastava

Hon'ble Ran Vijai Singh,J.

Hon'ble Vinod Kumar Srivastava-III,J.

Civil Misc. Application for Filing Additional Evidence No. 182519 of 2002 is taken up for orders.

We have heard Shri Samir Sharma, learned counsel for the applicants-appellants and Shri Saral Srivastava, learned counsel appearing for respondent No. 1.

This is an application filed under Order 41 Rule 27 of the Code of Civil Procedure bringing on record the pay certificate issued by HMA Udyog Private Limited, New Delhi, which contains that Sunil Kumar Agarwal (deceased) has been paid some amount towards bonus in the year 1985, 1990, 1995 and 2000, to which a counter affidavit has been filed by the learned counsel for the respondents stating therein that the pay certificate is not admissible for the simple reason that it is a photostat copy and original is not on the record.

Furthermore, no efforts have been made to satisfy the Court that in spite of due diligence, this certificate could not be produced before the Tribunal. It is also submitted that there was lack of due diligence, therefore, the application deserves to be rejected.

We have gone through the averments made in the application.

So far as the reason for not producing this certificate earlier is concerned, a bald averment has been made that although the applicant has applied for providing the pay certificate and the bonus, which was paid to the applicant, but the same was not supplied too.

There is no averment that for the first time, when the effort was made by the applicant before the Department to provide the copy of the pay certificate and in the absence of the disclosure of the date for making an application for obtaining the certificate, it cannot be said that in spite of due diligence, the pay certificate could not be filed earlier.

Having heard learned counsel for the parties and considering their submissions, we are of the view that there was lack of due diligence in not filing the pay certificate including proof of payment of bonus earlier and the application will not fall within the ambit of Order 41 Rule 27 of the Code of Civil Procedure.

The application is rejected.

Order Date :- 17.5.2017/Sumaira