Smt. Usha Rani And Others vs Pankaj & Another
2017 Latest Caselaw 7240 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3623 of 2008
 

 
Appellant :- Smt. Usha Rani And Others
 
Respondent :- Pankaj & Another
 
Counsel for Appellant :- Namit Kumar Sharma
 
Counsel for Respondent :- Rahul Sahai
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Ifaqat Ali Khan,J.

(Judgement delivered by Hon'ble Mr. Ifaqat Ali Khan, J.)

This First Appeal From Order No. 3623 of 2008 (Smt. Usha Rani and others Vs. Pankaj and others) is filed against the judgement and order dated 29.08.2008 passed by Sri Chandra Haas Ram Motor Accident Claims Tribunal/Additional District Judge, Mathura Court No. 7 in Motor Accident Claim Petition No. 49 of 2008 (Smt. Usha Rani and others Vs. Pankaj Kumar and others).

Facts giving rise to this appeal are that husband of appellant no. 1 Virendra Kumar Singh had died in an accident. On 06.12.2007 at 10:00 PM he was travelling by motorcycle no. UP-85-P 6853 and reached near Bajrang Dharam Kata on NH-2 root within the circle of police station highway District Mathura. At the same time the driver of Centro Car No. HR 51Y 5499 reached there from the side of Agra driving the car rash and negligently and hit the motorcycle of Virendra Kumar Singh and due to this accident Virendra Kumar Singh sustained the serious injuries and died of there injuries. On the basis of his death an accident petitioner Smt. Usha Rani and others filed the Motor Accident Claim Petition No. 49 of 2008 claiming the compensation of Rs. 66,20,000/- before the Motor Accident Claims Tribunal/District Judge, Mathua against the opposite parties/respondents. Petitioners in their petition stated that at the time of accident deceased Virendra Kumar Singh was 45 years old and was serving as Senior Office Assistant in Life Insurance Company Branch Mathura-I and was drawing Rs. 22,000/- per month as salary and he was the income tax payee and this Centro Car No. HR 51Y 5499 was insured with ICICI Lombard General Insurance Company Ltd. 

Deceased Virendra Kumar Singh left behind him widow, two children and old mother and father as dependents.

Opposite party no. 1/respondent no. 1 Pankaj who is the owner of the offending vehicle Sentro Car No. HR 51Y 5499 has stated in his written statement that his car was insured with ICICI Lombard General Insurance Company Ltd. Birla Tower, 5th Floor, Barahkhamba, Road, New Delhi. On the date of the accident his car was being driven by driver Khayali Ram slowly and carefully on his left side. Khayali Ram was having valid driving license and the accident took place due to the carelessness of the deceased Virendra Kumar Singh and there was no fault or carelessness on the part of the car driver.

Opposite party no. 2/respondent no. 2 ICICI Lombard General Insurance Company Ltd in its written statement submitted that no such accident took place even if such accident took place then it caused due to carelessness of the deceased who was driving the motorcycle no. UP-85-P 6853 and there was no carelessness on the part of the car driver, this petition is bad in non-joinder of the necessary party. Deceased was not having the driving license to drive the motorcycle. Burden lies on the owner of the car to prove that he was having the valid fitness permit and other documents of the car at the time of accident and the car driver was having valid driving license.

On the basis of the pleadings of the parties following issues were framed by the Motor Accident Claims Tribunal:-

(i). Whether on 06.12.2017 at 10:00 PM near Bajrang Dharam Kata on NH-2 road the driver of car no. HR 51 Y 5499 hit the motorcycle no. UP-85 P 6853 by driving his car rashly and negligently due to which Virendra Kumar Singh sustained the serious injuries and on the way to hospital died of these injuries, if so its effect?

(ii). Whether this petition is bad for non-joinder of owner and Insurance Company of the motorcycle as party in this petition?

(iii). Whether the driver of the vehicle involved in the accident was having valid driving license on the date of accident, if so its effect?

(iv). Whether the vehicle of opposite party no. 1 was insured with opposite party no. 2, if so its effect?

(v). Whether the petitioners are entitled to get the compensation, if so how much and from whom?

(vi). Any other relief?

Petitioners examined PW-1 Smt. Usha Rani, PW-2 Bhim Singh and PW-3 Pradeep Kumar as the witnesses and filed 5 documents per list 6-C and 5 documents.

Opposite parties examined DW-1 Pradeep Kumar as witness and opposite party no. 1 filed copy of registration certificate, insurance covered note and copy of driving license and opposite party no. 2 Insurance Company filed salary slip and salary certificate of deceased.

Learned Motor Accident Claims Tribunal vide its judgement and order dated 29.08.2008 allowed the petition and awarded Rs 4,89,992/- as the compensation to the petitioners alongwith 8% of interest from the date of filing of petition till the date of final realization.

Being aggrieved from the impugned judgement dated 29.08.2008 this First Appeal From Order No. 3623 of 2008 is preferred on the following grounds by the appellants:-

(1). Impugned judgement is wholly, illegal, arbitrary and contrary to fact and evidence available on record.

(2). The compensation awarded by the court below is grossly inadequate because the deceased was getting Rs. 22,179.83/- per month as salary from LIC and was income tax payee and paid the income tax on the annual salary of Rs. 2,44,203.74/- in the year 2006-07, but the Tribunal has not considered the salary. Tribunal calculated the compensation only on the basis of net salary and committed error in deducting the amount of the Provident Fund, Income Tax, Insurance Premium, Mediclaim, GSLI term Premium, Group Savings Linked Prem, GTIS 97 - Risk Premium, Installment of Co-Operative Society Loan, RSK PRM, P.F. Loan, P.F. Loan (Interest), Dasara Advance from the amount of total salary.

The Tribunal has committed error is not considering aspect of future prospects of deceased.

The Tribunal has failed to award any compensation for mental and physical shock suffers by claimant due to death of deceased.

The Tribunal has committed error in awarding the only amount of Rs. 2,000/- for funeral expenses and Rs. 5,000/- for the loss of love and affection to the petitioners no. 2 to 5.

At the time of accident deceased was 45 years old and mistakenly the Tribunal has applied the multiplier of 9 for awarding the compensation whereas Tribunal must have applied the multiplier of 13.

The Tribunal has awarded only 8% per annum interest on the amount of compensation, whereas Tribunal should have awarded 12% interest on the amount of compensation.

We heard the learned counsel for the appellants Sri Namit Kumar Sharma, and learned counsel for the respondents Sri Rahul Sahai, and perused the record.

Learned counsel for the appellants raised no objection against findings of the Tribunal on issues no. 1 to 4. All the objections raised by the learned counsel for the appellants relates to the findings of the Tribunal given on issues no. 4 and 5. In the impugned judgement issues no. 4 and 5 relates to the quantum of compensation.

Learned counsel for the appellants raised the first objection that the Tribunal has awarded only 8% simple per annum interest on the amount of compensation whereas the Tribunal should have awarded the interest @ 12% per month on the amount of compensation.

We disagree with this argument of learned counsel for the appellants because Hon'ble Apex Court in Dharampal and others Vs. U.P. State Road Transport Corporation 2008 ACJ 2041 (AT PAGE NO. 24) has observed that rate of interest in MACT would normally depend upon prevailing rate of interest on bank deposits. At the relevant time in this matter Hon'ble Supreme Court enhanced the rate of interest from 6% per annum to 7.5% per annum.Therefore, we do not find any irregularity or illegality if the Tribunal has awarded interest @ 8% on the amount of compensation.

Learned counsel for the appellants advanced the second argument that the Tribunal has reduced the 1/3 amount of compensation in consideration of expenses which the deceased would have incurred towards maintaining himself had he been alive. In this case there were 5 dependents of deceased Virendra Kumar Singh which are father, mother widow and 2 children. Therefore, the Tribunal should have reduce only the 1/4 amount of the compensation in consideration of the deceased. Learned counsel for the appellants placed the reliance on the decision of the Hon'ble Supreme Court in the case of Smt. Sarla Verma and other Vs. Delhi Transport Corporation and another 2009 TAC (SC) (PAGE NO. 677) in which Hon'ble Supreme Court has held that where there are 4 to 5 dependents of this deceased then the Tribunal should have deduct 1/4 amount from the income of deceased for his personal expenses for the calculation of the amount of compensation.

We disagree with this argument of learned counsel for the appellants because in petition widow Usha Rani son Arun Kumar and Kishan Kumar, mother Smt. Munni Devi and father Prem Pratap Singh are shown the dependents of deceased Virendra Kumar Singh, but nowhere in this petition the petitioners have adduced the evidence that Prem Pratap Singh (father of the deceased) was not having any source of income. Father of the deceased son can be treated as the dependent of the deceased only when he has no independent source of income therefore, in this case petitioner no. 5 Prem Pratap Singh can not be treated as a dependent of deceased Virendra Kumar Singh and petitioner no. 4 Munni Devi who is the mother of deceased Virendra Kumar Singh can also not be treated as a dependent of deceased Virendra Kumar Singh because her husband Prempratap Singh is alive. In this way only petitioner no. 1 Usha Rani (widow of deceased), petitioner no. 2 Arun Kumar (son of deceased) and petitioner no. 3 Kishan Kumar (son of deceased) are the dependents of deceased Virendra Kumar Singh. This is also worth-mentioned that Arun Kumar and Kishan Kumar are minor children so these two minor children will be treated as one unit, thus, only 2 units of persons were dependents of deceased Virendra Kumar Singh and where they are only two dependents of deceased Virendra Kumar Singh. Under such situation the deduction of 1/3 amount from the income of deceased in consideration of expenses which the deceased would have incurred towards maintaining himself had he been alive is proper deduction.

Learned counsel for the appellants argued that learned Tribunal has committed an error in calculating the compensation on the basis of net salary of Rs. 6,160/- and made the wrong deductions from the gross salary of the deceased for assessing the amount of compensation.

From the perusal of the salary certificate it reveals that at the time of death Virendra Kumar Singh was drawing the gross salary of Rs. 22,179.83/- and only the amount of Rs. 1,000/- being deducted for Income Tax and the payment of Rs. 120/- for Mediclaim and Rs. 115/- for Technical Examination Allowance and Rs. 75/- for Travelling Allowance total Rs. 1310/- should have been deducted by Tribunal from the gross salary of deceased for the calculation of the compensation. 

Thus, Rs. 22,179.83-1310=20,869.83 should be calculated as the monthly income of the deceased Virendra Kumar Singh, for the purpose of calculation of amount of compensation in place of Rs. 6,160/-. On the basis of the monthly income of Rs. 20,869/- annual income of deceased is calculated as Rs. 2,50,428/- and on being deducted 1/3 amount of Rs. 2,50,428/- that is Rs. 83,476/- from Rs. 2,50,428/- the amount of Rs. 1,66,952/- will remain rest which is the annual loss of dependents for determination of the compensation. 

Learned counsel for the appellants and respondents admitted that on the basis of evidence available on file the age of deceased Virendra Kumar Singh is proved as 47 years at the time of his death. On the basis of age of 47 the multiplier of 13 should have been applied for determination of the amount of compensation. In our opinion learned Tribunal has committed error in applying the multiplier of 9. Multiplying the amount of Rs. 1,66,952/- by 13 will become Rs. 21,70,376/-.

Learned Tribunal has also committed error is not considering the aspects of future prospects.

Hon'ble Supreme Court in Special Leave Petition Civil No. 25590 of 2014 National Insurance Company Ltd Vs. Pranay Sethi and others has held that in case where the age of the deceased is between 40 to 45 years then the 30% of his income should also be awarded as future prospects in this case the age of the deceased Virendra Kumar Singh was 47 years at the time of his death, thus, the 30% of Rs. 21,70,376/- which is Rs. 6,51,113/- is also added in the amount of the compensation which will make Rs. 28,21,489/-.

Learned counsel for the appellants contended that learned Tribunal has awarded only Rs. 2,000/- for funeral expenses, Rs. 5,000/- for loss of consortium and Rs. 2,500/- for loss of Estate which are very less amount. We agree with the learned counsel for the appellants that Tribunal has awarded very less amount for funeral expenses, loss of consortium and loss of Estate. Following observations made by Hon'ble Supreme Court in Special Leave Petition Civil No. 25590 of 2014 National Insurance Company Ltd Vs. Pranay Sethi and others we think it proper that calculations of expenses of funeral to the extent of Rs. 2,000/- by Tribunal is enhanced to Rs. 15,000/- and the calculation of loss of consortium awarded Rs. 5,000/- by the Tribunal is enhanced to the extent of Rs. 40,000/- and the calculation of loss of Estate by the Tribunal to the extent of Rs. 2,500/- is extended to the amount of Rs. 15,000/- thus, the total amount of Rs. 70,000/- is being awarded for the above mentioned conventional heads.  

Thus in our opinion that the petitioners are entitled to get Rs. 28,91,489/- as the compensation.

While discussing the number of the dependents on the income of deceased Virendra Kumar Singh for the purpose of the deduction of 1/3 amount from the income of deceased for his own expenses it was observed that petitioners no. 4 and 5 mother and father are not the dependents but apart from dependency petitioners number 4 and 5 have also got sever shock, suffering and pain on the death of deceased son Virendra Kumar Singh, so we are of this view that some part of compensation should also be given to the petitioners no. 4 and 5 alongwith petitioners no. 1 to 3.  

This appeal deserves to be partly allowed accordingly.

First Appeal From Order No. 3623 of 2008 (Smt. Usha Rani and others Vs. Pankaj and others) is partly allowed petitioners are entitled to get Rs. 28,91,481/- from opposite party no. 2/respondent no. 2 ICICI Lombard General Insurance Company Ltd, petitioners are also entitled to get 8% simple interest per annum on this amount from the date of the institution of the petition up to the date of final payment. Payments already made by respondent no. 2 to the petitioners shall be adjusted in the amount of compensation. Respondents Insurance Company is directed to deposit the rest amount of compensation through the account payee cheque in the account of Motor Accident Claims Tribunal concerned.

Petitioner no. 1 Smt. Usha Rani will get 50% amount of the compensation, petitioner no. 2 Arun Kumar will get 10% amount of the compensation, petitioner no. 3 Kishan Kumar will get 10% amount of the compensation, petitioner no. 4 Smt. Munni Devi will get 15% amount of the compensation and petitioner no. 5 Prem Pratap Singh will get 15% amount of the compensation.

The 80% amount of compensation receive by each petitioners shall be kept in form of FDR in Nationalized Bank for 2 years.

Order Date :- 24.11.2017

Vikram