Smt. Madhu Chauhan And Others vs The Oriental Insurance Co. Ltd. ...
2021 Latest Caselaw 10824 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 10.08.2021
 
Delivered on 25.08.2021
 

 

 
Case :- FIRST APPEAL FROM ORDER No. - 2880 of 2017
 

 
Appellant :- Smt. Madhu Chauhan And Others
 
Respondent :- The Oriental Insurance Co. Ltd. Through B.M. And Another
 
Counsel for Appellant :- R.K. Porwal,Badri Mani Tripathi,Nipun Singh
 
Counsel for Respondent :- Mohan Srivastava
 

 
Hon'ble Siddharth,J.

Heard Sri Ravi Shanker Pandey, Advocate, holding brief of Sri Badri Mani Tripathi and Sri Mohan Srivastava, learned counsel for the respondents.

This first appeal from order has been preferred against the Judgment and Award dated 30.05.1998 passed by 5th Additional District Judge, Motor Accidents Claims Tribunal, Etawah in MAC Case No.428 of 1996 (Smt. Madhu Chauhan and others Vs. Ranveer Singh and others.

The brief facts of the case are that an application was filed under Section 163-A read with Section 166 of the Motor Vehicles Act, 1988 before the Motor Accidents Claims Tribunal, Etawah claiming compensation for death of one, Sudhir Kumar Chauhan.

The aforesaid application was registered as MAC Case No.428 of 1996 by the Tribunal. It was pleaded that the deceased was travelling in Geep No. UP 84 9135 and on account of rash and negligent driving of the driver of the Geep it over turned and the deceased, who was aged about 35 years at that time, suffered injuries and later died. He left behind the claimant no.1 as his widow, claimant nos.2 and 3 his minor sons and claimant nos.4 and 5 his father and mother respectively. The deceased was doing the business of selling milk and earning Rs.4,000. He was also earning Rs.700/ per month as agent of B.V.G. Finance Company. The information of the accident was given at police station Vedpura by Iswar Dayal Yadav and police reached the place of accident. The injured passengers informed the police that due to rash and negligent driving of the driver the Geep over turned. Police registered a Case Crime No.48 of 1996, under Sections 279, 337, 338 I.P.C against unknown driver. The injured died in the hospital. The police prepared site plan of the accident, got inquest report prepared, post mortem., etc. done and charge-sheet was submitted against the driver of the vehicle, Asha Ram, in Court. The Geep owner, respondent no.2 in this appeal, filed written statement before the Tribunal denying the accident. He further stated that the Driver had valid driving licence at the time of accident and the vehicle was insured with the Oriental Insurance Company.

The Oriental Insurance Company Ltd., respondent no.1, in this appeal filed its written statement denying that the driver of the Geep had valid driving licence. It further stated that the information of the accident was not given to the insurance company. Therefore, it is not liable for payment of any compensation.

The Tribunal framed the following issues in the claim petition :

(1) Whether on 05.08.1996 at 12.30 hours Geep No.U.P. 84 - 9135 was driven by its driver rashly and negligently which resulted in the accident causing death of Sudhir Kumar Chauhan.

(2) Whether at the time of disputed accident the driver of the Geep had valid driving licence ?

(3) Whether at the time of disputed accident Geep aforesaid was insured with opposite party no.2, Insurance company ?

(4) To what amount of compensation the claimants are entitled to get ?

The Tribunal decided the issue no.1 in favour of the claimants- appellants, holding that the Geep was being driven rashly and negligently at high speed which resulted in the accident and the deceased got injured and subsequently died in District Hospital.

Regarding issue no.2, the Tribunal found that the plea of driver of the Geep not having valid driving licence was setup by the opposite party - insurance company but it has not led any evidence nor pressed the same during arguments. Therefore, the issue was decided against the insurance company.

Regarding issue no.3, the Tribunal found that the Geep was duly insured by the insurance company at the time of accident. This issue has been elaborately dealt by the Tribunal and the findings have been recorded in favour of the claimants.

Regarding issue no.4, the Tribunal found that the age of the deceased was mentioned as 35 years in the claim petition but as per his post mortem report he was aged about 42 years. From the school certificate of the deceased it arrived at the conclusion that the deceased was aged about 35 years 6 months at the time of death. The Tribunal has recorded the finding that the deceased was aged about 35 - 40 years at the time of death. The claimants claimed that the deceased was earning Rs.700/- per month as agent in J.V. G. Finance Company Limited and a certificate of month of July, 1996 was brought on record in evidence by the claimants. The Tribunal found that nothing was mentioned in the certificate that the deceased was working in the aforesaid insurance company. The certificate was only regarding the deposit of Rs.8,500/- and payment of 10% to the deceased by the company. The Tribunal disbelieved the claim of the claimants in this regard.

Regarding the income of the deceased of Rs.4,000/- per month from the business of milk, 11 receipts of purchase of buffaloes was filed. The Tribunal disbelieved the receipt by giving detailed reasons. The Tribunal further found that the deceased had passed examination of MA first year and he had wife and two children dependent on him. Therefore, Tribunal concluded that it could not be said that he was unemployed. The Tribunal applied the notional income of Rs.15,000/- per month of the deceased and after deduction of 1/3 amount towards his personal expenses found annual dependency of Rs.10,000/- towards the claimants. After applying multiplier of 16 the amount of Rs.1,56,000/- was held as compensation payable to the claimants with simple interest at the rate of 12% per annum from the date of filling claiming petition till the payment of the amount awarded and cost of Rs.300/- was directed to be paid to the claimants.

This appeal has been preferred by the claimants-appellants on the ground that the Tribunal did not properly considered evidence led before it while deciding the claim petition. He was working as agent in J V G finance company but evidence thereof has wrongly been disbelieved like the evidence of business of diary farm by the Tribunal. The income assessed by the Tribunal is very meagre. The award of compensation on the basis of notional income of the deceased is not correct. It has finally been submitted that under the conventional heads nothing has been awarded by the Tribunal when the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, (2017) SCC 16, page 380 has clearly held that for the loss of consortium, funeral expenses Rs.40,000/- and Rs.15,000/- should be awarded. Nothing has been awarded towards future prospects of the deceased. It has further been submitted that 1/3 deduction from the annual income of the deceased has wrongly been deducted towards his personal expenses. In the case of Smt. Sarla Verma and another Vs. Delhi Transport Corporation and another, 2009 (2) TAC 677 (SC), the Apex Court has held that the deduction on account of personal living expenses cannot be fixed 1/3 in all cases. It will certainly vary from case to case with reference to the number of dependent members in the family.

Learned counsel for the opposite party - insurance company has opposed the submissions made on behalf of the learned counsel for the claimant-appellants and has submitted that the findings of the Tribunal regarding the certificate of J.V.G Finance Company and the receipts produced to prove the diary business have been disbelieved by the Tribunal on the basis of proper appreciation of the material on record.

The interest awarded is already on higher side. The multiplier of 16 has wrongly been applied by the Tribunal when it should have been 15 and deduction of 1/3 amount towards personal expenses of deceased is in accordance with law. The appeal was filed with delay and it remained defective for 18 years and for this period no interest should be awarded to the claimants. The interest at present is only 7% per annum as per rules.

After hearing learned counsel for the parties this court, after going through the record, finds that the conclusion of the Tribunal regarding documentary evidence led on behalf of the claimants is in accordance with law and calls for no interference. The certificate of J V G Groups of company paper No.22 Kha / 9 only certifies that the deceased worked for the company in July, 1996 and got deposited an amount of Rs.8,500/- in the company and got incentive of 10% amounting to Rs.850/-. The Tribunal has rightly found that most of the receipts for purchasing of buffaloes are in the same hand writing and there is no other evidence to prove that deceased was involved in dairy business. The aforesaid findings of the Tribunal are confirmed.

However, the arguments made regarding non payment of any amount towards future prospects, loss of consortium and funeral expenses along with 1/3 deduction of the annual income of the deceased for personal expenses deserves consideration.

This court after going through the schedule given in the case of Smt. Sarla Verma (Supra) finds that the multiplier of 15 should be applied to the deceased in the age group of 36 - 40 years. In the present case the Tribunal has applied multiplier of 16 to the case of the deceased. The objection of the learned counsel for the opposite party no.1 - insurance company, is well founded. However, regarding 1/3 deduction from the personal income of the deceased, the Apex Court in the case of Smt. Sarla Verma (supra) has held in para 14 that where the number of dependents are 2 to 3 it should be 1/3, where the dependents are 4 to 6 it should be ¼ and where they exceed from 6 number, it should be 1/5.

In the present case, the dependents of the deceased are his widow, two children and mother, who are 4 in numbers and therefore, the deduction 1/3 amount from the income of the deceased could not have been made as per judgment of Smt. Sarla Verama (Supra) approved in Pranay Sethi (Supra). The deduction should have been only ¼ amount of annual income of the deceased and not 1/3.

Following judgement in the case of Pranay Sethi (Supra) an amount of Rs.40,000/- towards loss of consortium and Rs. 15,000/-, for funeral expenses is payable to the claimants.

Finally entitlement of the claimants of future prospects for the purpose of computation of compensation is to be decided. The deceased was certainly a self employed person and was not having any fixed income as found by the Tribunal. The Tribunal has not been able to specify what business or job was being done by the deceased but his income has been presumed notionally relying upon second schedule of the Motor Vehicles Act as Rs.15,000/- per annum. The Apex Court in the case of Pranay Sethi (Supra) has held that 40% of the annual income of the deceased, where he was below 40 years of age, would be payable towards his future prospects, keeping in view the cumulative factors namely, the passage of time, changing society, escalation of prices, the change in price index, the human attitude to follow a particular pattern of life, etc,.

In view of the above discussion, the award of the Tribunal dated 30.05.1998 stands modified.

(I) The income of the deceased shall be recalculated after deduction of ¼ amount towards his personal expenses.

(II) The amount of Rs.40,000/- towards consortium and Rs.15,000/- towards funeral expenses shall be paid to the claimants.

(III) 40% of the total income of the decease for 15 years shall be paid towards future prospects of the deceased to the claimants.

(IV) The multiplier of 16 applied by the Tribunal shall be reduced to 15 for calculating loss of income of deceased.

(V) Simple interest shall be paid to the claimant - respondents on the aforesaid enhanced amount at the rate of 7 % per annum from the date of filing of the claim petition till 30.08.1998 (till the period of limitation of filing appeal was there) and from 31.08.2017 (when the delay in filing appeal was condoned) till the date of actual payment. No interest shall be paid to the claimants-respondents for the period wherein the appeal remained pending as defective appeal before this Court.

The appeal stands partly allowed.

Order Date :- 25.08.2021

SS