The New India Assurance Co. Ltd. vs Smt. Nisha Rastogi And Others
2017 Latest Caselaw 6006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on 07.10.2017
 
Judgment Delivered on 30.10.2017
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1967 of 2010
 

 
Appellant :- The New India Assurance Co. Ltd.
 
Respondent :- Smt. Nisha Rastogi And Others
 
Counsel for Appellant :- P.K. Sinha
 
Counsel for Respondent :- N. Shukla,O.P. Pandey
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

(Delivered Oral by Hon'ble Saral Srivastava J.)

Heard counsel for the appellant and counsel for the respondents no. 1 to 4.

The appellant Insurance Company being aggrieved by the judgment and order dated 06.04.2010 passed by the Motor Accident Claims Tribunal/Fast Track Court 1st, Merrut, in Motor Accident Claims Petition No. 1109 of 2009, has preferred the present appeal whereby Tribunal has awarded Rs. 17,73,350/- with 6% interest as compensation to the claimants-respondents no. 1 to 3.

The appellant has challenged the order dated 06.04.2010 on two counts namely the Tribunal has acted illegally in not appreciating the correct facts on records while holding that the alleged accident had taken place by Bus No. H.R.-10-P.A.O.-111; the second contention raised by counsel for the appellant is that the compensation awarded by the Tribunal is on higher side.

Brief facts which led to filing the claim petition are that the claimants-respondents no. 1 to 3 being legal heirs of deceased Pradeep Rastogi, instituted claim petition stating that Pradeep Kumar was riding Scooter No. UP-15-Q-562 from his home to stadium for morning walk and was hit by Bus No. H.R.-10-P.A.O.-111 driven by its driver rashly and negligently near Alexander Club. The claimants- respondents no. 1 to 4 prayed for compensation of Rs.60,00,000/- as the deceased was running a jewellery shop, and his monthly income was Rs.70,000/- per month as per claim petition.

The aforesaid claim petition was contested by the owner of the bus namely Munit Kumar who filed written statement denying the involvement of Bus No. H.R.-10-P.A.O.-111 in the alleged accident. The alternative plea set up by the owner of the vehicle in the written statement was that there was no negligence of driver of bus in the said accident, and further the compensation prayed for was excessive and not reasonable.

The appellant Insurance Company also contested the claim petition by filing written statement denying the involvement of the aforesaid Bus No. H.R.-10-P.A.O.-111 in the said accident. The Insurance Company further pleaded in the written statement that their liability to pay the compensation was subject to the terms and conditions of contract of insurance, and compensation prayed for by the claimants was excessive.

Based upon the pleadings of the parties, the Tribunal framed six issues. The counsel for the appellant has assailed the finding on issue no. 1 with respect to the occurrence of the accident with Bus No. H.R.-10-P.A.O.-111 and negligence of driver of bus in the said accident, and issue no. 3 with regard to quantum of compensation. The counsel for the appellant has not assailed findings on rest of the issues.

The counsel for the appellant while assailing the finding on issue no.1 has urged that the finding of the Tribunal with regard to involvement of Bus No. H.R.-10-P.A.O.-111 in the accident is illegal and based on misreading of evidence on record. To buttress the aforesaid submission, the counsel for the appellant has submitted that statement of eye witness of the alleged accident namely PW-2 Abhishek Sharma was contradictory and inconsistent and therefore, the Tribunal did not rely upon the statement of PW-2 namely Abhishek Sharma in deciding the issue no.1 with regard to involvement of the bus, hence the claimants-respondent nos. 1 to 4 had failed to prove the involvement of the Bus No. H.R.-10-P.A.O.-111 in the alleged accident. He further contended that the Tribunal being conscious of the fact that there was inconsistency and contradiction in the statement of PW-2 namely Abhishek Sharma; the tribunal has acted illegally in misreading the statement of Anil Chaudhary C.W.1, who was produced by the appellant insurance company to prove the false implication of Bus No. H.R.-10-P.A.O.-111, in order to arrive at the finding that the accident had taken place by Bus No. H.R.-10-P.A.O.-111.

The counsel for the appellant further submitted that the burden to prove that the accident had taken place by Bus No. H.R.-10-P.A.O.-111 is upon the claimants-respondents no. 1 to 4, and once the claimant-respondent had discharged said burden only then the onus to prove that the vehicle was not involved in the said accident would shift upon the Insurance Company.

The counsel for the appellant further submitted that the First Information Report was lodged against the unknown vehicle and final report was submitted by the police and, thereafter, the claimants-respondents nos. 1 to 3, in order to plant the aforesaid vehicle in the accident managed Abhishek Sharma and Tarun Sharma, who submitted their affidavits before the police regarding the occurrence of the accident by Bus No. H.R.-10-P.A.O.-111, and based on the affidavits of aforesaid two persons namely Abhishek Sharma and Tarun Sharma the police again investigated the accident and filed charge sheet. Thus, the aforesaid fact clearly demonstrate that the Bus No. H.R.-10-P.A.O.-111 was planted in accident to fetch the compensation.

Refuting the aforesaid contention, the counsel for the respondent submitted that the claimants had proved the occurrence of the accident by Bus No. H.R.-10-P.A.O.-111 by filing cogent evidence namely charge-sheet etc. and by producing PW2 Abhishek Sharma, the eye witness of the alleged accident. Relying upon the Paragraph 15 of the judgment of Apex Court (2009) 13 SCC 530 Bimla Devi and others Vs. Himanchal Road Transport Corporation in support of his submission, he further submitted that in case of motor accident, the principle of probability of alleged accident beyond reasonable doubt cannot be applied rather the claimants are merely to establish their case on the touch stone of the preponderance of probability. He further submits that applying the aforesaid principle, the claimants have proved that the accident had taken place by Bus No. H.R.-10-P.A.O.-111. Paragraph 15 of the judgment of Apex Court in Bimla Devi case (Supra) is extracted hereinbelow:

"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."

The counsel for the claimants-respondents further submitted that the Insurance Company had filed an application for summoning the driver of bus namely Mahendra, which was allowed by the Tribunal. Despite the driver being summoned by the Tribunal, the Insurance Company did not deliberately produce the driver of the bus which could be the best witness to testify that the Alexander Club, the place of accident, was on route of bus on the fateful day. Thus, the presumption under Section 114 of the Indian Evidence Act has to be drawn against the Insurance Company.

We have heard the rival submissions of the parties and have perused the finding of the Tribunal on issue no. 1 regarding the involvement of bus in the alleged accident. We find that the Tribunal while discussing the issue no. 1 has not given credence to the testimony of the PW-2 Abhishek Sharma, the alleged eye witness of the accident. Thereafter, Tribunal in detail has discussed the statement of Anil Chaudhary C.W.1, who happens to be the Controller of the Transport of K.L. International Public School and has stated on oath that Bus No. HR10-PA-0111 is plied to transport children from Ganganagr. He (Anil Chaudhray) further stated that Bus starts from Ganganagr and passes through Kasmir Chauraha, Police Line, Stadium, Jail Chungi and University Road to reach School. He (Anil Chaudhray) further stated Alexander Club was not in route of the Bus nor the bus passes through the Alexander Club. However, It has also come in the statement of Anil Chuadhry that driver of Bus Mahnedra had come with him in the court.

The Tribunal disbelieved the testimony of Anil Chaudhary on the ground that owner of Bus has stated in paragraph no.2 of additional plea in his written statement paper No.9Ka that driver had told him that accident had occurred due to negligence of driver of scooter, and therefore owner of Bus has admitted the factum of accident. Further reason given by the Tribunal for disbelieving the statement of Anil Chaudhary was that though the Insurance Company had summoned the driver of the bus, but did not produce him who could be the best witness to testify that the bus was not involved in the accident.

We find that the reason recorded by the Tribunal for disbelieving the testimony of Anil Chaudhary is sound and based on the correct interpretation of Section 114 of the Indian Evidence Act, inasmuch illustration (g) to Section 114 of the Indian Evidence Act demonstrates that presumption with regard to certain facts have to be drawn against the person who withholds an evidence which could be, if produced, be unfavourable to him. Applying aforesaid principle in the present case, we find that the driver Mahendra of the bus could be the best witness to testify, as to whether the bus was involved in the accident or not, but driver of Bus was not produced by the Insurance Company despite the fact that the application for summoning the driver has been allowed by the Tribunal and driver was present in the court whose presence in the court was corroborated from statement of Anil Chaudhray C.W.1. Hence, tribunal was right in drawing presumption against the insurance company. Accordingly, following the law laid down by Apex Court in the case Bimla Devi (Supra) and material on record, we are of the opinion that the claimants-respondents no. 1 to 3 have proved on the principle of preponderance of probability that the accident had taken place by Bus No. H.R.-10-P.A.O.-111. Thus, we affirm the finding of the Tribunal on the issue no. 1 regarding involvement of Bus in the accident.

The next submission of the counsel for the appellant is that the Tribunal has erred in holding the income of deceased Rs.2,40,525/- on the basis of Income Tax Return for Assessment Year 2008-09 (F.Y.2007-08). The counsel for the appellant argued that from the statement of account of deceased which formed basis for filing Income Tax Return, only Rs.34,104/- which deceased received by way of salary from firm could only be considered as loss of income for calculating the compensation whereas the income from other sources shown in statement of account namely 50% share in firm, 50% profit share in firm M/s. Suman Sagar Jewellers, interest earned on capital, interest on commission and investment in Saving Banks P.P.F. etc. are in the nature of recurring income which the family of deceased would continue to get. He further submitted that income from 'Capital Gains Long Term' on sale of jewellery on 09.10.2007 and 1/3rd share in compensation due to compulsory accretion of agricultural loss etc. are in the nature of special income which was one time income and could not be earned by deceased in continuity. The counsel for the appellant submitted that the search report with regard to Income Tax Return was obtained from Rajeev Devendra & Company, Charted Accountant and as per search report only Rs.34,104/- is financial loss due to death of deceased and family of the deceased is still getting the rest of income even after, the death of deceased. He further submitted that the aforesaid search report of Rajeev Devendra & Company, Charted Accountant was proved by insurance company by producing Rajeev Gupta, Charted Accountant. Thus, the submission of the counsel for the appellant is that the only income which could be said to be loss to the family due to death of deceased is income of Rs.34,104/- from salary, and incomes from other sources shown in the statement of account would continue to be earned by the family even after the death of deceased or was only one time income and therefore cannot be termed as loss of income. Thus, the Tribunal should have calculated compensation on the basis of Rs.34,104/-, i.e., salary income from the firm, and therefore the Tribunal has committed manifest error of law in calculating compensation on the basis of Rs.2,40,575/- shown in the Income Tax Return.

Refuting the aforesaid submission, the counsel for the respondent has submitted that though the Tribunal was right in not considering Income Tax Return of Pradeep Kumar Rastogi filed in the capacity of Hindu Undivided Family (HUF), but has rightly calculated compensation on the basis of income of Rs.2,40,575/- shown in the return for the Assessment Year 2008-09 filed by the deceased in individual capacity. The counsel for respondent further submitted that the age of the deceased was 54 years, therefore, in view of the Rule 220-A (3) (III) of Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011[hereinafter referred as Rules,2011] the Tribunal should have awarded 20 per cent towards future prospect. The counsel for the respondent submitted that a very meagre amount of Rs.2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.5,000/- towards loss of pain and suffering has been awarded. He submits that the Apex Court in the recent judgment in 2015 (4) SCC 237 (Jitendra Khimshankar Trivedi & others Vs. Kasam Daud Kumbhar & others), has awarded Rs.15,000/- towards funeral expenses and Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards pain and suffering to the minor children.

The Apex Court in the case of (Sarla Verma and others Vs. Delhi Transport Corporation and others), 2009 (6) SCC 121 has laid down the principle of calculation of just for the compensation in Paragraph nos. 8 and 9 which is extracted below:

"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. It is not intended to be a bonanza, largesse or source of profit. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation."

9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:

Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.

Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.

Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the family.

Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.

The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.

The principle enunciated by the Apex Court in the Sarla Verma (Supra) has been affirmed in subsequent judgment of the Apex Court in Reshma Kumari & Others vs. Madan Mohan & others (9) SCC 65.

Thus, the Tribunal is under obligation to award just and adequate compensation which is fair, equitable and adequate compensation, on the facts and circumstances, to make good the loss suffered by the dependents of deceased. We find that the income from salary of Rs.34,104/-, shown in the statement of account of deceased Pradeep Rastogi's could be said to be only loss of income, whereas other income shown in the statement of account of deceased was either recurring income which the dependents would continue to get or one time income in the nature of Capital Gains. During the course of the argument, we put a question to the counsel for the respondent as to how the other incomes except the income of salary shown in the statement of account of deceased could be said to be loss of income, inasmuch as the income from these sources are recurring income or only one time income. The counsel for the respondent could not explain that the income from other sources except the salary income was not recurring income or one time income, but actual loss of income due to the death of deceased. we have perused the statement of PW-1 Ankur Rastogi also in order to ascertain the income of deceased, but from perusal of the statement of PW-1 Ankur Rastogi, we find that he has stated that the income of his father was Rs.70,000/- per month which is totally contradictory to the documentary evidence namely the Income Tax Return filed by the claimant to prove income of deceased. Thus, we hold that the loss of the income due to death of deceased was income form salary, i.e., Rs.34,104/- and the Tribunal ought to have calculated compensation on the basis of salary income of deceased Rs.34,104/-, as rest of the income shown in the statement of account was recurring income which the family of the deceased would continue to get even after his death or one time income.

So far as the contention of counsel for the respondent that tribunal should have awarded 20% towards future prospect in view of the Rule 220-A (3) (III) Rules, 2011, we are in agreement with submission of the counsel for the respondent is that the 20 % should have been added towards future prospect inasmuch as the applicability of Rules, 2011 has been held even in pending proceeding in First Appeal From Order No. 688 of 2002 (Smt. Medha Aggrawal Vs. New India Assurance Compnat) herein above:

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.

Thus, in our opinion, tribunal should have awarded 20% towards future prospect as the age of the deceased was 54 years. Accordingly we hold that claimants are entitled for 20% future prospect.

Relying upon judgment of the Apex Court in 2015 (4) SCC 237 (Jitendra Khimshankar Trivedi & others Vs. Kasam Daud Kumbhar & others), the learned counsel for respondent next contended that very meagre amount has been awarded towards funeral expenses, loss of pain and suffering and loss of consortium. Thus, We also award Rs.15,000/- towards funeral expenses, Rs.1,00,000/- towards pain and suffering and Rs.1,00,000/- towards loss of consortium. We also find that the interest 6% awarded by the Tribunal is on the lower side. Therefore, 9 % interest is awarded instead of 6% interest.

Accordingly, the impugned order dt. 06.04.2010 is modified to the extent indicated above. The Tribunal is directed to calculate the compensation as per directions given above.

The appeal is partly allowed to the extent indicated above.

There shall be no orders as to costs.

Order Date :- 30.10.2017

Ishan