Smt. Kanti Devi And Others vs Narendra Kumar Singh And Others
2017 Latest Caselaw 4757 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 41
 

 
Case :- FIRST APPEAL FROM ORDER No. - 351 of 2005
 

 
Appellant :- Smt. Kanti Devi And Others
 
Respondent :- Narendra Kumar Singh And Others
 
Counsel for Appellant :- B.S. Yadav
 
Counsel for Respondent :- V.C.Dixit,H.N. Singh
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Krishna Singh,J.

(Delivered by: Hon'ble Krishna Singh, J.)

Present appeal has been filed by the appellants claimants being aggrieved against the impugned judgment and award dated 19.10.2004 passed by the Motor Accident Claims Tribunal/Additional District Judge, Varanasi in M.A.C.P. No. 220 of 2003 (Smt. Kanti Devi and others Vs. Narendra Kumar Singh and others) awarding compensation to the tune of Rs. 8,80,292/- alongwith interest at the rate of 5% per annum to the appellants claimants inter alia on the ground that the compensation awarded by the Tribunal is inadequate and also that the Tribunal has not calculated the compensation as contemplated in law.

Brief facts giving rise to the instant appeal are that on 21.8.2003 deceased Virendra Kumar Singh Yadav alongwith Jawahar Ram was going from Robertsganj to Salkhan Chopan by the motorcycle bearing registration no. U.P. 64 A-0873. Said motorcycle was being driven by Jawahar Ram and deceased was pillion rider. When said motorcycle reached near Chapka Power Station a truck bearing registration no. U.P. 53 T-2452 which was being driven rashly and negligently dashed the motorcycle from behind at about 7 AM as a result of which Virendra Kumar Singh Yadav died on the spot. The FIR of the said accident was lodged at police station Robertsganj, district Sonbhadra under Sections 279/337/338/304-A/427 IPC against the driver of the said offending truck. At the time of accident, the deceased was working as Assistant Engineer in the Soil Conservation Department, Robertsganj. He was aged about 42 years and getting salary Rs. 10,400/- per month. Deceased was the sole bread earner of the family, therefore, a sum of Rs. 65,96,112/- has been claimed as compensation. At the time of accident the said truck was insured with the respondent insurance company.

The claim petition was contested by the owner and driver of the said truck as well as insurance company.

The owner and driver of the said truck have pleaded that accident in question had occurred due to rash and negligent driving of the driver of the motorcycle and in any view of the matter since at the time of accident the driver of the truck was having a valid driving license and said truck was duly insured with the United India Insurance Company, the liability was on the insurance company.

It was pleaded on behalf of the insurance company that claim petition has been filed on false and concocted story and accident had occurred due to rash and negligent driving of the driver of the motorcycle and, as such, the claim petition was liable to be dismissed.

To support the allegations made in the claim petition appellant claimant Smt. Kanti Devi has examined herself as PW-1 and also produced Jawahar Ram as PW-2 and Surendra Singh as PW-3. The appellants claimants have filed a copy of FIR, site plan, charge-sheet, postmortem report of the deceased, high-school and salary certificate of the deceased.

To support the allegations made in the written statement driver of the said truck examined himself as DW-1. The owner and driver of the said truck have also filed copy of registration certificate, insurance policy and permit of the said truck. Driver of the said truck has also filed a copy of driving license.

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

Learned counsel for the appellants claimants has submitted that while awarding the compensation the Tribunal has not applied any multiplier. Learned counsel further submitted that the deceased was aged about 42 years and if the multiplier according to the age of deceased has to be applied, the multiplier of 14 should be applied for awarding the just and reasonable compensation. Learned counsel further submitted that while awarding the compensation, the Tribunal has wrongly deducted 1/3rd income of the deceased towards personal and living expenses of the deceased because it is evident from the record that number of dependent family members is five, therefore, 1/4th deduction should be made for awarding just and reasonable compensation. Learned counsel further submitted that deceased was government servant, he was aged about 42 years and his future was bright. While awarding the compensation, the Tribunal has ignored the future prospect of the deceased. Learned counsel further submitted that looking to the age of the deceased and nature of his service 30% annual salary of the deceased should be added in the annual salary income towards future prospect. Learned counsel further submitted that while awarding the compensation the Tribunal has wrongly deducted the family pension receivable by the appellant claimant Smt. Kanti Devi. Learned counsel further submitted that compensation awarded by the Tribunal is inadequate, therefore, the same is liable to be enhanced.

Per contra learned counsel for the respondent insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and reasonable and, therefore, same does not warrant any interference for enhancement of compensation as claimed by the appellants claimants.

It is evident from the record that Tribunal on the basis of oral and documentary evidence adduced by the appellants claimants has held that appellants claimants are the legal representative of the deceased. Deceased was aged about 42 years and posted as Assistant Engineer in the Soil Conservation Department and getting salary Rs. 10,400/- per month. The Tribunal has also held that accident in question had occurred due to rash and negligent driving of the driver of the said truck and driver of the motorcycle had not contributed to the accident. At the time of accident the said truck was insured with the respondent insurance company.

Considering the entire facts and circumstances of the case we are of the view that finding recorded by the Tribunal is duly supported by the evidence and is correct.

In the case of Smt. Sarla Verma and others Vs. Delhi Transport Corp. and another, 2009 (3) AWC 2138 (SC), Hon'ble Supreme Court in paragraph nos. 11, 14 and 21 has held as follows;

"11. 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. There should be no addition, where the age of deceased is more than 50 years.

14. 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 not in dispute that deceased was aged about 42 years, in view of the law laid down by Hon'ble Supreme Court in the case of Smt. Sarla Verma (supra) we find that with reference to the age of deceased the multiplier of 14 ought to have been applied which was appropriate in the facts of the case. Since the Tribunal has failed to apply the correct multiplier, we, accordingly, provide that multiplier of 14 should be applied in the facts of the case.

It is evident from the record that appellants claimants who are five in number are the legal representatives and dependents of the deceased. While awarding the compensation the Tribunal has wrongly deducted 1/3rd income of the deceased towards personal and living expenses of the deceased. In view of the law laid down by Hon'ble Supreme Court in Smt. Sarla Verma's case and considering the entire facts and circumstances of the case, we are of the considered view that deduction of 1/4th income of the deceased should have been made towards personal and living expenses of the deceased, we, accordingly, provide that deductions of 1/4th should be made.

It is also not in dispute that at the time of accident the deceased was working as Assistant Engineer in the Soil Conservation Department and getting salary Rs. 10,400/- per month. It is evident from the record that while awarding the compensation, the Tribunal has not taken into account future prospect of the deceased in view of the law laid down in Smt. Sarla Verma's case and considering the entire facts and circumstances of the case we are of the considered view that an addition of 30% of actual salary to the actual salary income of the deceased towards future prospect should be made to award just and reasonable compensation to the appellants claimants. In view of the above, we are of the view that Tribunal has committed illegality in not awarding the compensation towards future prospect of the deceased.

In the case of Vimal Kanwar and others Vs. Kishore Dan & others, (2013) 7 SCC 476, Hon'ble Supreme Court has held that "family pension and compassionate appointment cannot be termed as pecuniary advantage that comes under the periphery of Motor Vehicle Act."

It is evident from the record that while awarding the compensation, the Tribunal has wrongly deducted the amount of family pension receivable by the appellant claimant Smt. Kanti Devi. In view of the law laid down by Hon'ble Supreme Court in the case of Vimal Kanwar (supra), we are of the view that family pension is a pecuniary advantage receivable by the appellant claimant Smt. Kanti Devi (wife of the deceased) on account of death of the deceased. Family pension has no co-relation with the amount receivable under a statute occasioned only on account of accidental death and such an amount will not come within the periphery of the Motor Vehicle Act and to be termed as pecuniary advantage liable for deductions.

In view of the discussions made above, we are of the considered view that compensation awarded by the Tribunal is inadequate and it should be enhanced. Accordingly, the compensation payable to the appellant claimant is worked out as under;

A.

Calculation of Income Tax for the Financial Year 2003-04 (Assessment Year 2004-05)

Annual Salary of the Deceased

Rs. 10,400 x 12 = Rs. 1,24,800/-

Contribution towards

(i)

GPF

Rs. 1000 x 12 = Rs. 12,000/-

(ii)

GIS

Rs. 60 x 12 = Rs. 720/-

Total

Rs. 12,720/-

Deductions under Section 80-C of the Income Tax Act

Net salary of the deceased (after deductions under Section 80-C of the Income Tax Act)

Rs. 1,24,400 - Rs. 12,720 = Rs. 1,12,080/-

Taxable Income

Up to Rs. 50,000/-

Nil

From Rs. 50001/- to Rs. 60000/- (@ 10%)

Rs. 1000/-

From Rs. 60001/- to Rs. 1,12,080/- (@ 20%)

Rs. 10,416/-

Total Tax Payable

Rs. 11,416/-

B.

Annual Salary of the Deceased

Rs. 1,24,800/-

C.

Salary of the Deceased (after deduction of income tax)

Rs. 1,13,383/-

D.

Future Prospect (30% of the annual salary of the deceased)

Rs. 34,015/-

E.

Total income of the deceased

Rs. 1,47,399/-

F.

1/4th deductions towards personal and living expenses of the deceased.

Rs. 1,47,399 - 1/4th (36,849) = Rs. 1,10,550/-

G.

Multiplier with reference to the age of the deceased

H.

Loss of dependency

Rs. 1,10,550 x 14 = Rs. 15,47,700/-

I.

Compensation already awarded by the Tribunal

Rs. 8,80,292/-

J.

Amount enhanced by this Court

Rs. 15,47,700 - Rs. 8,80,292 = Rs. 6,67,408/-

On the basis of discussions made above, the appeal is allowed, accordingly, by modifying the impugned judgment and award by increasing the compensation awarded by the Tribunal from Rs. 8,80,292/- to Rs. 15,47,700/-. The appellants claimants will be entitled to get enhanced amount of award Rs. 6,67,408/- in addition to what is already awarded by the Tribunal alongwith the interest at the rate of 6% per annum from the date of filing of claim petition till its realization. The increase in the compensation as awarded by us will be taken by the claimant Smt. Kanti Devi (wife of the deceased) exclusively. The said sum shall be invested for three years in maximum interest bearing scheme in the name of Smt. Kanti Devi.

Respondent no. 3 United Indian Insurance Company Ltd. is directed to pay the enhanced amount of compensation to the claimants appellants 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.

Parties to bear respective costs.

[Krishna Singh, J.]                   [Satyendra Singh Chauhan, J.]
 

 
Order Date :- 21.9.2017
 
Shekhar