Satayawati And 3 Others vs Vidya Prakash And 2 Others
2021 Latest Caselaw 9204 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[A.F.R.]
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 863 of 2021
 
            (First Appeal From Order Defective No.136 of 2018
 

 
Appellant :- Satayawati And 3 Others
 
Respondent :- Vidya Prakash And 2 Others
 
Counsel for Appellant :- Sushil Kumar Pandey
 
Counsel for Respondent :- Pankaj Rai
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Sri Sushil Kumar Pandey, learned counsel for the appellant, Sri Pankaj Rai, learned counsel for the respondent- insurance company and perused the judgment and order impugned.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 13.7.2017 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Muzaffar Nagar (hereinafter referred to as 'Tribunal') in M.A.C.No.370 of 2014 awarding a sum of Rs.31,99,757/- with interest at the rate of 7% as compensation.

3. The accident is not in dispute. As per the judgment of Apex Court in U.P.S.R.T.C. Vs. Km Mamta and Others, AIR 2016 SCC 948, all the grounds raised in the appeal are required to be adjudicated and that is how, we would decide issue of negligence of driver and quantum and would go ahead with the discussion. The issue of negligence decided by the Tribunal has been partly decided in favour of appellants and none of the drivers or insurance companies have challenged the award. The respondents have not challenged the liability imposed on them jointly and severally. The issues to be decided are compensation awarded and whether there was negligence of deceased in the accident taking place for which the Tribunal has deducted the monetary benefit admissible to the claimants.

4. Brief facts as culled out from the record are that on 27.6.2014 the deceased along with his friends was traveling from village Soram to Manali in the car bearing No. HR-26 BV-7516, at about 2:15 a.m. in the morning when they reached Gurdeepazi at Kirtpur Sahab to Bilaspur Road, a Truck bearing No. HP-23 B-5215 came from the front and hit the car. As a result of the negligence of the drivers the accident was caused whereby , deceased Udaiveer Singh and his friend-Rajneesh Kumar who were sitting in the car have died on the spot and Mukul and Prempal who were also travelling in the car have sustained grievous injuries.

5. It is submitted by learned counsel for the appellants that the deceased was 42 years of age at the time of accident. The deceased was a government Assistant Teacher. His income was considered by the Tribunal to be Rs.31,090/- per month. It is further submitted that the Tribunal granted future loss of income of the deceased. The future loss should be granted as per Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011 and also as per decisions of Supreme Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and Sri K.R. Madhusudhan and others Vs. Administrative Officer and another, (2011) 4 SCC 689. It is further submitted that the amount granted under non-pecuniary damages is on the lower side and same should be computed and granted as per the decision titled National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that the deduction towards personal expenses of the deceased should be 1/3rd or 1/4th as he was survived by widow, mother and two sons. It is submitted by learned counsel that tax is calculated wrongly and the deduction of income tax by adding future prospect is against legal position of law and is bad.

6. It is further submitted that the deceased was not a tortfessor despite that Tribunal has deducted compensation which could not be done as it is settled law that amount cannot be deducted if the person sustained injuries or death occurred for no fault of his.

7. the counsel for the appellants has submitted that from the factual data, this Court can cull out that that the accident occurred on 27.6.2014 causing death of Udaiveer who was 42 years of age at the time of accident. The Tribunal has assessed income to be Rs.31,090/- per month even if not disturbed by this Court as Rs.580/- is the deduction which includes Rs.500/- as tax. It is submitted that the deceased was in the age bracket of 40-50 and had a permanent job hence addition of 30% of the income may not be be disturbed but is required to be added not only for the purpose of deduction of income taxbut for actual actual calculation of compensation not done by tribunal on erroneous findinds recorded based on whims and not on precedents but against settled legal principles . and added in view of the decision of the Apex Court inPranay Sethi (Supra). The amount under non-pecuniary heads should be at least Rs.1,00,000/- in view of the decision in Pranay Sethi (Supra). The amount rounded is up to Rs.1,00,000/- as 10% of Rs.70,000/- would have to be added every three years and, therefore, we add the same. In view the facts and circumstances of the case, this Court feels no interference is called for as far as deduction of personal expenses is concerned.

8. The vehicle which is involved in the vehicular accident were a jeep/car not driven by deceased Udayveer. The appellant has not challenged the decision on negligence what is challenged is deduction of compensation payable to heirs of non- tort-fessor. The jeep was driven by Rajneesh and not the deceased whose heirs had claimed compensation for his untimely death. The law is well settled that claimant is a non-tort fessor or heirs of deceased. The deceased was a non tort fessor can claim damages/ compensation from any of the tort fessor and for negligence attributed to the driver of the vehicle in which he was traveling. The amount cannot be deducted from awardable compensation.

9. It is submitted by counsel for the appellant that the deduction of compensation for a non tort-fessor is bad and finding are such which cannot stand scrutiny of this Court in view of the judgment of Apex Court in Khenyei Vs. New India Assurance Company Limited and Others (2015) 9 SCC 273 for composite negligence and Vimal Kanvar and others Vs. Kishore Dan and others, AIR 2013 SC3830 for both negligence and compensation and non grant of future loss as wife had been appointed and was working ,and the circulated judgment of this high court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 also for both the issues

Our finding on issue of deduction of compensation on account of negligence :-

10. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under for accident caused due to composite negligence :

"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :

"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.

7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."

18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.

What emerges from the aforesaid discussion is as follows :

(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."

emphasis added

11. Thus despite the law being very clear the learned tribunal has fallen in error in deducting the compensation which could not be done.

12. The finding on Compensation and Deduction of income tax while granting compensation :-

13. From the facts collated, we find that the Tribunal has committed manifest error while deciding the compensation to be awarded to the appellants herein. The tribunal seems to have not considered the decision following the supreme court verdict in its over zeal to show innovative interpretation for deducting compensation on various counts unheard of in any authoritative pronouncements (a) calculation of tax (b) deduction for negligence of driver in which deceased was travelling (c) adding future prospect but not granting as wife is given compassionate appointment. This court condemns this perverse approach of the Tribunal. Unfortunate part is that the Tribunal in our view committed an error which can be said to be error apparent on the face of record because the income of the deceased at the time of accident was his actual income. The authorities as narrated above had already deducted tax at source and deducting were also made by employer. The Tribunal committed error which has resulted in perversity as it added future prospects considered yearly income; and then deducted income tax on actual income plus future income multiplied by 12(months). This could never be done .If at all income tax had to be deducted, it had to be deducted on his salary amount not after adding future prospects as is done by the Tribunal. In the year 2014, as is evident as narrated by the learned Tribunal holding that income tax slab for 2,50,000/- was Nil, the Tribunal held that as his income was in the bracket of Rs.2,50,000 to Rs.5,00,000/-, yearly tax was to be deducted. This finding requires modification. Income tax if any has to be deducted on income which was Rs.500/- deducted by employer. Thus deduction of Rs.23,500/- per year was bad and was not even permissible under Income Tax Act. The deceased would be entitled to what is known as standard deductions which would be available to the deceased employee otherwise government would have deducted more amount where he was serving would have deducted more amount towards tax what is known as tax deducted at source. This was not done even if we go by the said standards, it cannot be said that the amount would be taxable as held by the Tribunal. One of the reasons being calculating the slab would therefore have to be recalculated. Income tax deduction has to be from the amount which is known as pay packet of the deceased and not after addition of the future loss of income which has to be added while calculating the datum figure. This is  an error apparent on the face of the record which has been rightly pointed out by the counsel for appellants and it could not be demonstrated by the learned counsel for respondent that this error does not require correction.

14. The second error committed by learned Tribunal is that though the deceased is held to be a non tort-fessor meaning thereby that there is no contribution of negligence, attributable to him despite that there is a deduction of compensation payable to the legal heirs which is against the mandate of the Apex Court in the decision of Khenyei (supra). The issue of negligence is concerned, it stands concluded in favour of appellants as there is no cross appeal or rather it has not been pointed out before us  that the deceased was a tort feassor hence the decisions cited by the learned Advocate for appellant will apply in full force.

15. The deduction of income tax of Rs.23,000/- per year is rightly pointed out to be fallacious by the counsel. The income.after deductions was Rs.31,090/- per month roughly out of which he would be entitled to deduction and that is the reason why the authority deducted Rs.500/- as tax at source. The amount under non-pecuniary heads should be at least Rs.1,00,000/- in view of the decision in Pranay Sethi (Supra). The amount rounded is up to Rs.1,00,000/- as 10% of Rs.70,000/- would have to be added every three years and, therefore, we add the same. In view of the facts and circumstances of the case, this Court feels that no interference is called for as far as deduction of personal expenses of the deceased is concerned. Learned Tribunal has committed an error  apparent on the face of the record.

16. The total compensation is recalculated and payable to the appellants is computed herein below:

i. Annual Income of deceased Rs.3,73,080/- (Rs.31,090 x 12) per annum

ii. Percentage towards future loss of earning prospects : 30% namely Rs.1,11,924/-

iii. Total income : Rs.3,73,080 + Rs.1,11,924 = Rs.4,85,004/-

iv. Income after deduction of 1/3rd towards personal expenses : Rs.3,23,336/-.

v. Multiplier applicable : 14

vi. Loss of dependency: Rs.3,23,336/- x 14 = Rs.45,26,704/-

vii. Amount under non pecuniary heads : Rs.1,00,000/-(addition of 10% every three years hence amount rounded up

viii. Total compensation : Rs.46,26,704/-

17. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

18. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

19. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers.

20. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount.

21. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

22. A copy of this Judgment be circulated by the learned Registrar General to the Tribunals in the State for guidance after seeking approval of Hon'ble the Chief Justice. A copy of this judgment be sent to the learned tribunal whose judgment is under challenge so that in future he may not take such erroneous view which would be unsustainable and against settled legal provisions of law and remain updated with precedents ,

23. This Court is thankful to both the counsels for getting this old matter decided.

Order Date :- 2.8.2021

Mukesh