New India Assurance Co. Ltd. vs Vasudeo And Others
2017 Latest Caselaw 4743 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2565 of 2004
 
Appellant :- New India Assurance Co. Ltd.
 
Respondent :- Vasudeo And Others
 
Counsel for Appellant :- Ramesh Singh,A.K.Yadav,K.L. Grover
 
Counsel for Respondent :- K.N. Yadav,A.K. Yadav
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Krishna Singh,J.

(Delivered by Hon'ble Krishna Singh, J)

This appeal has been filed by the appellant-Insurance Company being aggrieved against the impugned judgment and award dated 13.8.2004 passed by the Motor Accident Claims Tribunal/Additional District Judge, Kanpur Dehat in MACT No.383 of 2003 (Vasudeo and others Rajkumar Trivedi and others) awarding compensation to the tune of Rs.14,30,000/- alongwith the interest @ 9% per annum to the respondents-claimants inter alia on the ground that the compensation, which has been awarded in favour of respondents-claimants is excessive and also that the Tribunal has not calculated the compensation as contemplated in law.

Brief facts giving rise to the present appeal are that deceased Ram Prakash Yadav was posted as Assistant Teacher at Poorve Madhyamik Vidyalaya, Tikrauli, Sumerpur, District Hamirpur. On 20.5.2003, deceased was going by his cycle to attend the school when he reached at Rath Mor (Turn), Mahoba road at about 6:45 A.M, a Truck bearing registration No. UP-787-1646 which was being driven in a rash and negligent manner coming from opposite side hit the cycle, as a result of which, deceased sustained grievous injuries, thereafter, he was taken to the hospital. During treatment, he succumbed to the injuries on 25.5.2003. At the time of accident, deceased was aged about 40 years and getting Rs.10,522/- per month as salary and earning Rs.2,500/- per month as private tuition. Therefore a sum of Rs.45,86,500/- has been claimed as compensation by the claimants. FIR of the said accident was lodged against the driver of the said offending Truck at Police Station Kotwali Hamirpur which was registered as Case Crime No.400 of 2003 under Sections 289, 337, 338 IPC and 3/184/192/177 of Motor Vehicles Act. After investigation of the case, police has submitted charge-sheet against the driver of the said Truck under Sections 289, 337, 338, 304-A IPC and 3/184/192/177 of Motor Vehicles Act. Post-mortem of the deceased was conducted by the Doctor. At the time of accident, said Truck was insured with the appellant-insurance company.

The claim petition was contested by the owner of the said Truck denying the allegations by filing written-statement. Owner of the said Truck pleaded that accident-in-question had not occurred due to rash and negligence driving of the driver of the said Truck and in any view of the matter since the Truck was insured with the appellant-insurance company and the driver was having a valid driving licence, the liability was on the insurance-company. It was pleaded on behalf of the appellant-insurance company that claim petition has been filed on false and concocted story. At the time of accident, said Truck was being driven by the driver, not having the driving licence at all. Therefore, insurance-company was not liable for payment of compensation as such the claim petition was liable to be dismissed.

To support the allegation made in the claim petition, claimant Ram Balak Yadav himself appeared in the witness box as PW-1 and also produced Malkhan Singh as PW-2. The claimants filed a copy of FIR, site plan, charge-sheet, post-mortem report, death certificate and treatment papers of the deceased. Claimants have also filed the pay-certificate of the deceased, copy of the return of income-tax and inspection report of the said Truck.

Respondent-owner of the said offending Truck has filed the copy of registration certificate, insurance-policy, permit, fitness certificate of the said Truck and copy of the driving license of the driver of the said Truck.

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

Learned counsel for the appellant has submitted that at the time of accident, the age of deceased was above 40 years while passing the impugned award, the Tribunal has wrongly applied the multiplier on 15 instead of 13. Learned counsel for the appellant has further submitted that while awarding compensation, the Tribunal has wrongly assumed the additional income of the deceased as Rs.12,000/- per annum from private tuition which is not proved from the evidence adduced by the respondents-claimants. Learned counsel for the appellant has further submitted that while passing the impugned award compensation towards future prospects of the deceased should not have been awarded by the Tribunal because claimant Balak Ram (son of the deceased) has got compassionate appointment after the death of the deceased. Learned counsel for the appellant has further submitted that compensation awarded by the Tribunal is excessive and therefore, the same is required to be taken into consideration by this Court.

Per contra, learned counsel for the claimants has submitted that compensation awarded by the Tribunal is inadequate and even if no appeal has been filed by the claimants, the adequate compensation can be awarded upon the controversy in respect of award of compensation in support of his argument, learned counsel has placed reliance upon a judgment of the Apex Court in the case of Jitendra Khimshankar Trivedi and others vs. Kasam Daud Kumbhar and others 2015 (4) SCC 237 in paragraph of 13 of the said judgment, the Apex Court has held has follows:

13. "The tribunal has awarded Rs.2,24,000/- as against the same, claimants have not filed any appeal. As against the award passed by the tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the courts/tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasized by this Court in Nagappa vs. Gurudayal Singh & Ors. 2003 2 SCC 274, Oriental Insurance Company Ltd. vs. Mohd. Nasir & Anr. 2009 6 SCC 280 and Ningamma & Anr. vs. United India Insurance Company6 Ltd. 2009 13 SCC 710. As against the award passed by the tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/tribunals to award just and reasonable compensation, it is appropriate to increase the compensation

The Tribunal on the basis of oral and documentary evidence adduced by the claimants has held that the deceased has met with an accident due to rash and negligent driving of the driver of the said offending Truck and the deceased had not contributed to the accident. At the time of accident, offending Truck was insured with the appellant-Insurance Company, claimants are the legal representative and dependent of the deceased. Considering the entire facts and circumstances of the case, we are of the view that finding recorded by the Tribunal in respect of above facts is based upon proper appreciation of evidence and is correct.

In the case of Smt. Sarla Verma and others vs. Delhi Transport Corporation and another 2009 (2) TAC 677 (SC), the Apex Court in Para No.11, 14 and 21 has held as under:-

11. 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. [Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax"]. The addition should be only 30% if the age of the deceased was 40 to 50 years.

14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. 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.

21. We, therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

It is evident from the pleadings made by the claimants in the claim petition statement of PW-2 Balak Ram, treatment papers and post-mortem report that deceased Ram Prakash Yadav was aged about 40 years. The Tribunal while awarding the compensation has mis-directed itself in applying the multiplier of 15. It is pertinent to mention here that claimants have not filed any Educational Certificate/High School Certificate to prove the date of Birth of the deceased in absence of the same exact age of the deceased cannot be ascertained. In view of the above and considering the entire facts and circumstances of the case, we apply the multiplier of 13. In view of law laid down by the Apex Court in the case of Smt. Sarla Verma (Supra).

It is not in dispute that at the time of accident, deceased was posted as Assistant Teacher at Poorve Madhyamik Vidyalaya, Tikrauli, Sumerpur, District Hamirpur and getting salary Rs.10,522/- per month while awarding compensation, the Tribunal has wrongly deducted the amount of HRA from the salary of the deceased, we are of the considered view that HRA is the part and partial of the salary and was given for the benefit of the deceased and his family. Therefore, HRA should not have been deducted from the salary of the deceased. We accordingly provide that HRA should be added in the salary of the deceased for awarding the just and reasonable compensation.

While passing the impugned judgment and award, the Tribunal assumed Rs.12,000/- per annum additional income of the deceased from private tuition. It is pertinent to mention here that in respect of the alleged income from tuition, no cogent evidence has been adduced on behalf of the claimants. In view of the above and considering the entire facts and circumstances of the case, we are of the considered view that finding recorded by the Tribunal in respect of alleged income from tuition is not sustainable.

In the case of Vimal Kanwar and others vs. Kishore Dam and others 2013 7 SCC 476-A, the Apex Court has held that family pension and compassionate appointment cannot be termed as pecuniary advantage that comes under the periphery of Motor Vehicles Act.

In view of the law laid down by the Apex Court in the case of Vimal Kanwar (Supra), we are of the considered view that family pension and compassionate appointment has no co-relation with the amount receivable under a statute occasioned only on account of accidental death. We hold that salary receivable by the dependent of the deceased on compassionate appointment cannot be termed as pecuniary advantage that comes under the periphery of the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the said act.

On the basis of evidence available on record, we are of the view that future of the deceased was bright. In view of the above and considering the entire facts and circumstances of the case, we feel that addition of 30% of actual salary to actual salary income of the deceased towards future prospects should be made for awarding the just and reasonable compensation.

In our view compensation awarded by the Tribunal is not excessive. In view of the law laid down by the Apex Court in the cases of Smt. Sarla Verma (Supra) and Jitendra Khimshankar Trivedi (Supra), we are of the considered view that compensation awarded by the Tribunal is inadequate. The award is liable to be enhanced.

Accordingly, the compensation payable to the claimants is worked out as under:-

(i)

Annual Salary of the deceased (Rs.10,522 x 12 = 1,26,264)

Rs.1,26,264/-

(ii)

(a) Income-tax payable for the F/Y 2003-2004 (A/Y 2004-2005) up to Rs.50,000/-

(b) From Rs.50,000/- to Rs.1,26,264 @ 10%

NIL

Rs.7,626

(iii)

Net annual income of the deceased (after deduction of income-tax)

Rs.1,26,264 - Rs.7,626

= Rs.1,18,638/-

(iv)

Future prospects addition of 30% of actual salary to actual salary income of the deceased

Rs.35,591/-

(v)

Total income of the deceased

Rs.1,54,229/-

(vi)

Age of the deceased

About 40 years

(vii)

(a) Multiplier applied with reference to the age of deceased

(b) 1/4 deduction towards personal and living expenses of the deceased

Rs.1,54,229 - 1/4 (Rs.38,557) = Rs.1,15,672

(viii)

Loss of Dependency

Rs.1,15,672 x 13

= Rs.15,03,736/-

(ix)

Compensation awarded by the Tribunal

Rs.14,30,000/-

(x)

Amount enhanced by this Court

Rs.15,03,736 - Rs.14,30,000 = Rs.73,736/-

On the basis of discussion made above, claimants will be entitled to get enhanced amount of award of Rs. 73,736/- alongwith the interest @ 7% per annum from the date of filing of the claim petition till its payment.

The increase in compensation as awarded by us will be taken by the claimant Smt. Ram Kumari (wife of the deceased) exclusively. The said sum shall be invested for three years in the maximum interest bearing scheme in the name of Smt. Ram Kumari.

The appellant is directed to pay the enhanced amount of compensation to the claimant alongwith interest within a period of three months from the date of receipt of certified copy of this order in the form of account payee cheque.

In view of the above, keeping in view the over all aspect of the case and ends of justice to award adequate compensation to the claimants, we hereby modify the impugned judgment and award to the aforesaid extent and appeal is partly allowed .

Parties to bear respective costs.

(Krishna Singh,J.)         (Satyendra Singh Chauhan,J.)
 
 
 
Order Date: 21.9.2017
 
Rishabh