Smt.Devi Yadav And Others vs Sanjeev Kumar Gupta And Another
2017 Latest Caselaw 4456 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 17
 
Case :- FIRST APPEAL FROM ORDER No. - 736 of 2006
 
Appellant :- Smt.Devi Yadav And Others
 
Respondent :- Sanjeev Kumar Gupta And Another
 
Counsel for Appellant :- Deepak Kumar Agarwal
 
Counsel for Respondent :- Anil Srivastava
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rang Nath Pandey,J.

Heard Mr. Deepak Kumar Agarwal, learned Counsel for the appellants and Mr. Anil Srivastava, learned Counsel for the respondent No.2-the Oriental Insurance Company Ltd.

The present First Appeal From Order has been filed by the claimants/appellants for enhancement of compensation awarded by the Motor Accident Claims Tribunal/Additional District & Sessions Judge, Court No. 10, Lucknow, in Claim Petition No. 278 of 2003 : Smt. Devi & others Vs. Sanjeev Kumar and another, vide judgment and award dated 27.3.2006, whereby the Tribunal has awarded compensation to the tune of Rs.10,68,740/- along with interest @8% per annum from the date of the award to the claimants/appellants. The Tribunal has awarded the aforesaid compensation on following heads :

Head

Amount (in Rs.)

Rs.8827 (Monthly income) X 12= Rs.105924/- (annual income)

1/3rd of Rs.105924= 70616/- x ''15' (multiplier)

1059240/-

Funeral Expenses

2000/-

Loss of Estate

2500/-

Loss of Love and Affection

5000/-

For enhancement of amount of compensation as awarded by the Tribunal vide award dated 27.3.2006, Counsel for the appellants has urged before us four grounds, which are as under :

(1) The Tribunal, while determining the monthly income of deceased Ram Ratan Yadav, has made deduction of the amount of House Building Advance, G.I.S. and G.P.F.;

(2) There are four dependents of the deceased, therefore, deduction of 1/4th amount out of the income of the deceased towards personal expenses ought to have been applied instead of 1/3rd.

(3) As the deceased was a permanent employee in the police department and working as Constable and at the time of death, he was aged about 40 years, therefore, the Tribunal ought to have awarded compensation by making addition of 50% income towards his future prospects but the same has not been added by the Tribunal; and

(4) The Tribunal erred in directing to the Insurance Company to pay the awarded compensation along with interest @8% per annum from the date of award, instead of from the date of claim petition.

As the factum of accident, as to whether offending vehicle was insured with the respondent No.2 and as to whether the driver of the vehicle possessed the valid license, are not disputed by the parties but only issue raised before us is with respect to the quantum of compensation, therefore, we have examined the issue with respect to the amount of compensation awarded to the claimants/appellants.

So far as first ground for enhancement of compensation is concerned, Counsel for the appellants has submitted that in deciding the ''take home salary' of the deceased, the Tribunal erred in deducting Rs.2060/- contributed by the deceased towards various heads such as General provident Fund, House Building Advance and Group Insurance Scheme. He has submitted that these contributions should also be treated as a part of income of the deceased.

To strengthen his arguments, learned Counsel for the appellants has placed reliance upon the judgment of the Apex Court in Manasvi Jain Vs. Delhi Transport Corporation : 2014 (2) T.A.C. 741 (S.C.), wherein the Apex Court has submitted that except contribution towards income tax, the other voluntary contributions made by the deceased, which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to decide his net salary or take home salary. Thus, the deduction of Rs.2060/- referred to herein above, is unjustified.

Insofar as second ground of enhancement of compensation is concerned, Counsel for the appellants has submitted that the Apex Court in para-14 of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another : 2009 (2) T.A.C. 677 (S.C.) has opined that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third where the number of dependent family members is 2 to 3; one-fourth is to be deducted where the number of dependent family members is 4 to 6; and one-fifth is to be deducted where the number of dependent family members exceeds six. In the instant appeal, the number of dependent family members are four, therefore, 1/4th of the income of the deceased toward personal expenses ought to have been deducted and as such, the Tribunal fell into error in deducting 1/3rd of the income of the deceased towards personal expenses.

In regard to third ground for enhancement of compensation i.e. with respect to future prospects, learned Counsel for the appellants has placed reliance upon Smt. Sarla Verma (supra) and has submitted that in para 11 of Smt. Sarla Verma (supra), the Apex Court has observed that in view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. He has also submitted that the judgment of Sarla Verma (supra) was reiterated in Reshma Kumari and others Vs. Madan Mohan and another : 2013 (2) T.A.C. 369 (S.C.). Therefore, the Tribunal erred in not adding 50% income towards his future prospects as the deceased in the instant case at the time of accident was aged about 40 years and was a permanent Government employee.

In regard to fourth ground of enhancement of compensation, Counsel for the appellants has submitted that though it is the discretion under Section 171 of the Motor Vehicles Act to award the interest but the learned Tribunal was required to give reasons while granting the same.

Learned Counsel for the Insurance Company Mr. Anil Srivastava, while opposing the appeal, has submitted that as far as issue with respect to future prospect is concerned, now the Apex Court in Sandeep Khanuja Vs. Atul Dande and another : (2017) 3 SCC 351, has held that in awarding compensation, the multiplier method takes care of future prospects on advancement in life and career and it is based on the doctrine of equity, equality and necessity and a departure therefrom is to be done only in rare and exceptional cases. Thus, there is no illegality or infirmity in the impugned order.

We have examined the submissions of the learned Counsel for the parties and gone through the record.

On examination of the record, we find that while determining the income of the deceased, the Tribunal had deducted Rs. 2060/- contributed by the deceased towards various heads such as General provident Fund, House Building Advance and Group Insurance Scheme from his net salary while computing the income of the deceased, which, in our view, is not just and proper. The Apex Court in Manasvi Jain (Supra) has dealt with the question whether for the purpose of deciding net monthly income of the deceased, the amount of voluntary contributions he made towards General Provident Fund etc., should be included or excluded from his salary and has held that except contribution towards income tax, the other voluntary contributions made by the deceased, which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to determine the net salary or take home salary. Thus, the take home salary of the deceased comes to Rs. 10387/-.

So far as contention of the appellants that the tribunal has erred in deducting 1/3rd amount out of the income of the deceased towards self expenses of the deceased, is concerned, in Sarla Verma (supra), while dealing with the question of deduction towards Personal and Living Expenditures, the Apex Court has held as under :

"Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six".

In the instant case, it is not in dispute that the deceased had left behind four defendant family members and, therefore, in view of Sarla Verma (supra), 1/4th amount out of the income of the deceased towards personal expenses of the deceased was to be deducted but the Tribunal has wrongly deducted 1/3rd amount out of the income of deceased towards personal expenses of the deceased.

So far as the submission of the learned Counsel for the appellants with regard to future prospects is concerned, the Apex Court in Sandeep Khanuja (supra) has held that in awarding compensation, the multiplier method takes care of future prospects on advancement in life and career and it is based on the doctrine of equity, equality and necessity. The relevant paragraph 12 and 13 of the report reads as under:-

"12. While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be. In injury cases, the description of the nature of injury and the permanent disablement are the relevant factors and it has to be seen as to what would be the impact of such injury/disablement on the earning capacity of the injured. This Court, in the case of U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors.[4] justified the application of multiplier method in the following manner:

13. It was rightly clarified that there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of ''just' compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country."

In view of the aforesaid facts and legal position, we do not find any illegality or fundamental defect in approach or in the methodology adopted by the Tribunal in determining the amount of compensation. As held by the Apex Court the multiplier system is, thus, based on the doctrine of equity, equality and necessity, a departure therefrom is to be done only in rare and exceptional cases. Thus, we do not find that any interference is warranted by this Court in the impugned Award on this point.

So far as award of interest on the amount of compensation is concerned, Section 171 of the Motor Vehicles Act, deals with the award of interest and it reads as follows :

"171. Award of interest where any claim is allowed -- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."

The main purpose for award of interest on the amount of compensation is to compensate the claimant/claimants to some extent for the delay which occurred in the matter. It is true that the above quoted Section 171 of the Motor Vehicles Act vests discretion in the Tribunal to decide the rate of interest and the date from which the interest is payable, ordinarily the interest is awarded from the date of filing of the claim petition. It is only in exceptional cases where the Tribunal comes to the conclusion that the delay in disposal of the claim petition was solely and wholly attributable to the claimant/claimants, the interest is made payable from the date of the award and not from the date of filing of the claim petition.

In the present case, the Tribunal has not recorded any finding in the impugned award that the delay in the matter was solely and wholly attributable to the claimant. The Tribunal, as such, ought to have awarded interest on the amount of compensation to the claimants from the date of filing of the claim petition.

For the foregoing reasons, we allow the appeal filed by the appellants/claimants for enhancement of the compensation in part and determine the monthly take home salary of the deceased as Rs.10,387/-. Applying multiplier ''15', the appellants are entitled to the compensation as under :

 
Head 
 
Amount (in Rs.)
 
Rs. 10,387/- (monthly income) X 12 =) Rs. 124644/- (Annual income) 
 
1/4th of Rs.124644=           Rs. 93483/- x ''15'=
 
14,02245
 

 
Funeral Expenses 
 

 
2000/-
 
Loss of Estate 
 
2500/-
 
Loss of Love and Affection 
 
5000/-
 
                             Total- 		
 
               1411745/-
 
 				
 
	The appellants is also entitled to an interest @ 8% from the date of filing the claim petition before the Tribunal till the date of payment. 
 

At this stage, it has been informed that appellants have already been given the awarded amount in pursuance to the impugned award, therefore, now only difference of the amount is to be paid by the Insurance Company.

Accordingly, respondent No.2-Insurance Company is directed to deposit the difference of amount within two months from today before the Tribunal concerned. The Tribunal, on receipt of the said amount, shall release the same in favour of claimants/appellants at the earliest.

Order Date :- 15.9.2017

Ajit/-

Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rang Nath Pandey,J.

The First Appeal From Order is allowed in part vide order of date passed on separate sheets.

Order Date :- 15.9.2017

Ajit/-