Ramesh Chandra Gupta And Another vs Jagdish Chandra Samdani And ...
2021 Latest Caselaw 9577 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3785 of 2008
 

 
Appellant :- Ramesh Chandra Gupta And Another
 
Respondent :- Jagdish Chandra Samdani And Others
 
Counsel for Appellant :- Dr. G.S.D.Mishra,Udit Chandra
 
Counsel for Respondent :- Sudhanshu Behari Lal Gour
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Shri Udit Chandra, learned counsel for the appellants and Sri Sudhanshu Behari Lal Gour, learned counsel for the respondents.

2. The written submission of learned counsel for appellants is also taken on record.

3. This appeal, at the behest of the claimants, challenges the judgment dated 5.8.2008 passed by Motor Accident Claims Tribunal/Additional District Judge, Pilibhit (hereinafter referred to as 'Tribunal') in Claim Petition No.63 of 2006 awarding a sum of Rs.6,50,000/- with interest at the rate of 6% as compensation.

4. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondent concerned has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded.

5. It is submitted by learned counsel for the appellant that the Tribunal has not granted any amount towards future loss of income of the deceased which is required to be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that amount under non-pecuniary heads granted and the interest awarded by the Tribunal are on the lower side and require enhancement. It is also submitted that as the deceased was survived by his parents and hence the deduction towards personal expenses of the deceased should be 1/3 and not 1/2 as by tribunal under challenge. The multiplier has to be as per age of deceased. To which as the deceased was in age bracket of 26-30 years, 50% of the income will have to be added as future prospects in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. Learned counsel for the appellant in his favour he has relied on the following judgments to substantiate his submissions for enhancement.

(i) National insurance Company Limited v. Pranay Sethi and others, Special Leave Petition (Civil) No.25590 of 2014, decided on 31.10.2017.

(ii) P.S. Somanathan and others v. District Insurance Officer and another, Civil Appeal No.1891 of 2011, decided on 17.2.2011.

(iii) Munna Lal Jain and another v. Vipin Kumar Sharma and others, Civil Appeal No.4497 of 2015, decided on 15.5.2015.

(iv) Smt. Neeta w/o Kallappa Kadolkar and others v. The Div. Manager, MSRTC, Kolhapur, Civil Appeal Nos. 348-349 of 2015.

(v) Sanobanu Nazirbhai Mirza and others v. Ahmedabad Municipal Transport Service, Civil Appeal No.8251 of 2013, decided on 3.10.2013.

(vi) Chandan Singh and another v. S.E.W. Construction Co. Ltd and others, Misc. Appeal No.296 of 2002, decided on 3.1.2003.

(vii) Smt. Kesh Kumari Verma and another v. Om Narain Shukla and another, First Appeal From Order No.319 of 2011, decided on 4.3.2014.

(viii) National Insurance Co. Ltd. v. Brijlata and others, M.A. Nos.675 and 707 of 2003, decided on 16.1.2008.

6. Learned counsel for the respondent, has vehemently submitted that the contentions raised by the learned counsel for the appellants cannot be accepted and has submitted that the compensation awarded by the Tribunal is just and proper and does not call for any enhancement. The deduction can't be 1/3 but has to be 1/2 as deceased was bachelor and survived by parents.

7. Having heard learned counsels for the parties and considered the factual data. The accident occurred on 28.1.2006 causing death of Anupam Gupta who was 26 years of age and left behind him, parents. The Tribunal has assessed the income of the deceased to be Rs.10,000/- per month, this assessment is wrong. There are three reasons for us to disagree with the learned Tribunal; (i) the post mortem report mentions the address of the deceased to be that of Rajasthan and he had purchased a motorcycle at Rajasthan, but he had not been working there; (ii) As held by the learned Judge, there was no accident having taken place in the Rajasthan which was the place of his service; (iii) The post mortem not only shows his place of service, but also shows that he was residing in the Colony which is maintained by Hindustan Zinc Limited. All these will permit us to interfere with the findings of the tribunal as far as service of deceased is considered. As far as non proving of the job of the petitioner, further the decisions cited by the counsel for the appellants more particularly of the Madhya Pradesh High Court, titled National Insurance Co. Ltd. v. Brijlata Insurance Co. Ltd., 2009 ACJ 791 would enure from the benefit of the appellants also.

8. The finding of the tribunal on income of deceased are perverse for the following reasons; (i) the deceased was IIT Graduate and he had shifted to Rajasthan, he had purchased the motorcycle in the year 2005. The deceased was Management Trainee in Starliet Industries Subsidiary of Hindustan Zinc Ltd. The judgments of the Apex Court in the case of Anita Sharma and others versus New India Insurance Company Limited and another, (2021) 1 SCC 171 will not permit us to concur with the learned tribunal contending that as the author of the salary was not examined, it cannot be believed that he was a salaried person. This is a perverse findings of fact. The trappings of civil jurisdiction would and should not be adhered to indicative the compensation, non grant of future prospects is also without any reasons. The Apex Court in Kirti v. Oriental Insurance Co. Ltd, (2021) 2 SCC 166 will also not permit us to concur with the findings of tribunal. The approach to be adopted by the tribunal. Thus, the approach is irregularities and requires to be interfered and was alleged to be earning Rs.33,360/- per month, which we feel is just and proper. As far as deduction towards personal expenses of the deceased is concerned, it should be 1/2 as the deceased was a bachelor and his mother was dependent.

9. The submission that the Tribunal has not granted any amount towards future loss of income. Grant of future prospects will have to be traced back and reference can be had to the decision in General Manager, Kerala S.R.T.C., Trivandrum v. Susamma Thomas & Ors.,(1994) 2 SCC 176 wherein addition of future prospects was also calculated. The decision in Susamma Thomas (Supra) was referred in U.P.S.R.T.C. & Ors. v. Trilok Chandra & Ors.(1996) 4 SCC 362 which have been considered by the Apex Court in Sarla Dixit Versus Balwant Yadav AIR 1996 SC 1274 and the Apex Court has considered decision in Hardeo Kaur V/s. Rajasthan State Transport Corporation, 1992 2 SCC 567. The decision in Sarla Dixit has been considered to be good law in (1) Puttamma Vs. K.L.Narayana Reddy, AIR 2014 SC 706 (2) Raman Vs. Uttar Haryana Bijli Vitran Nigam Limited, Bijoy Kumar Dugar Vs. Bidyadhar Dutta, 2006 (3) SCC 242 : (3) Sarla Verma (supra)(4)R.K.Malik Vs. Kiran Pal, AIR 2009 SC 2506 (5)National Insurance Company Limited Vs. Pranay Sethi, AIR 2017 SC 5157 Raj Rani Vs. Oriental Insurance Company Limited, 2009 (13) SCC 654. We have gone through the decisions in those days referred to herein above and the judgment of Gujarat high court in Ritaben alias Vanitaben Wd/o. Dipakbhai Hariram and Anr. v/s.Ahmedabad Municipal Transport Service & Anr., 1998 (2) G.L.H. 670, wherein, the Court has observed as under:

"para-7: It is settled proposition of that the main anxiety of the Tribunal in such case should be to see that the heirs and legal representatives of the deceased are placed, as far as possible, in the same financial position, as they would have been, had there been no accident. It is therefore, an action based on the doctrine of compensation.

para-8: It may also be mentioned that perfect determination of compensation in such tortuous liability is, hardly, obtainable. However, the Tribunal is required to take an overall view of the facts and the relevant circumstances together with the relevant proposition of law and is obliged to award an amount of compensation which is just and reasonable in the circumstances of the case.

para-10: Even in absence of any other evidence an able bodied young man of 25 years, otherwise also presumed to earn an amount of Rs.1000/- or more per month, on that basis the prospective income could be calculated by doubling the one prevalent on the date of the accident, which is required be divided by half, so as to reach the correct datum figure which is required to be multiplied by appropriate multiplier. Even taking a conservative view in the matter, the deceased would be earning not less than an amount of Rs.1000/- per month and considering the prospective average income of Rs.2000/- and divided by half, would, obviously come to Rs.1500/."

10. Thus even in year 1990 to 2005, the addition of future prospects was not ruled out, just because tribunals in Uttar Pradesh were not granting future loss, it cannot hold field where the decision of Apex Court is otherwise as demonstrated with decision though of persuasive value of Gujarat High Court referred herein above wherefore, the submission of Sri Shukla that no amount under the head of future loss of income was admissible in those days, will have to be considered. The decision of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021 SC 359 will have to be looked into. Therefore, we will have to consider the same in the light of the recent decisions as well as the decisions of the Apex Court prevailing.

11. In Malarvizhi & Others and Indiro Devi & Others (Supra), it has been held that Income Tax is the mirror of one's income unless proved otherwise. Even in the earlier days, the factors to be considered for issuing quantum of compensation reads as follows:

i. To give present value, a reasonable deduction or reduction is required as lump sum amount is given at a stretch under the head of prospective economic loss;

ii. The tax element is also required to be considered as observed in the Gourley's case (1956 AC 185).

iii. The resultant impairment/death on the earning capcity of the claimant/claimants .

iv. That the amount of interest is awarded also on the prospective loss of income.

v. That the amount of compensation is not exemplary or punitive but is compensatory.

12. Hence, the total compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below:

i. Income Rs.33,360/- p.m.

ii. Annual income : Rs.33,360 x 12 = Rs.400320/-

iii. Percentage towards future prospects : 50% namely Rs.200160/-

iv. Total income : Rs. 400320 + 200160 = Rs.600480/-

v. Income after deduction of 1/2 : Rs.300240/-

vi. Multiplier applicable : 17 (as the deceased was in the age bracket of 26-30 years)

vii. Loss of dependency: Rs.300240 x 17 = Rs.51,04,080/-

viii. Amount under non pecuniary heads : Rs.70,000/-

ix. Total compensation : Rs.51,74,080/-

13. 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."

14. 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 restic villagers.

15. 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.

16. 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 along with additional 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 the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

17. Record and proceedings be remitted to tribunal.

18. 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 apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

19. This Court is thankful to both the counsels to see that the matter is disposed of.

Order Date :- 5.8.2021

A.N. Mishra