Smt. Meenaxi Panwanda And 3 Others vs Raj Kumar And 2 Others
2021 Latest Caselaw 9842 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37 
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1897 of 2018
 

 
Appellant :- Smt. Meenaxi Panwanda And 3 Others
 
Respondent :- Raj Kumar And 2 Others
 
Counsel for Appellant :- Shreesh Srivastava
 
Counsel for Respondent :- Archana Singh,Ram Lakhan Deobanshi
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

(Per: Hon'ble Subhash Chand, J.)

1. Heard Sri Shreesh Srivastava, learned counsel for the appellants, Ms. Manjima Singh, Advocate holding brief of Ms. Archana Singh, learned counsel for the respondent no.2 and Sri Ram Lakhan Deobanshi, learned counsel for the respondent no.3-New India Assurance Company.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 17.02.2016 passed by Motor Accident Claims Tribunal/Additional District Judge/ Special Judge (S.C. and S.T. Act) Gautam Budh Nagar (hereinafter referred to as 'Tribunal') in M.A.C.T. Case No.324 of 2012 (Meenaxi Panwanda and others Vs. Raj Kumar and others).

3. It is submitted by learned counsel for the appellants that the deceased was 56 years of age. He was an Assistant Manager (H.R.) in NTPC, Haryana. The Tribunal has considered his income to be Rs.63.032/- per month. It is submitted by learned counsel for the appellants that the income of the deceased should have been considered to be Rs.82,337/-. The deceased was survived by his widow and three daughters, the deduction of 1/3rd towards personal expenses of the deceased should not be disturbed. As far as multiplier is concerned, there is no dispute between the parties. It is also submitted that the interest should be granted at the rate of 7.5%.

4. As far as the appeal is concerned, all other aspects except the compensation awarded, has attained finality, as the Insurance Company has not come up in appeal. It is the appeal filed by claimants. The issue of negligence has been decided in favour of the claimants and that issue is not raised in this appeal and the issue that is required to be decided is compensation awarded by the Tribunal, which has not granted any amount under the head of future loss of income despite the law provided for the same. The Tribunal has considered the income to be Rs. 63,032/- per month and granted multiplier of 9 with compensation of Rs. 1,25,000/- under non-pecuniary heads and it is this award, which is under challenge.

5. Learned counsel for the appellants has heavily relied on the judgments in case of New India Assurance Company Limited Vs. Urmila Shukla and others decided on 06.08.2021 in Civil Appeal No. 4634 of 2021 as well as in case of Kirti and another Vs. Oriental Insurance Company Limited (2021) 2 SCC 166 and Anita Sharma and others Vs. The New India Assurance Company Limited and another 2021 (1) SCC 171 by contending that the deductions as made by the Tribunal are faulty and could not have been made. The accident occurred in the year 2012 and appeal is of the year 2018, therefore, interest, which is granted 7% will have to be 7.5% from the date of filing of the claim petition till the amount is deposited. As far as deceased is concerned, it is a case of composite negligence as determined by the Tribunal.

6. Learned counsel for the appellants has relied on the judgment of Vimal Kanwar and others Vs. Kishore Dan and others AIR 2013 SC 3830 and submitted that no deduction should be from the salary of the deceased except income tax but the Tribunal has deducted all the allowances and the loan amount for which installment would be paid. It is submitted by Sri Srivastava that the same could not be done. The case of New India Assurance Company Limited Vs. Urmila Shukla and others decided on 06.08.2021 in Civil Appeal No. 4634 of 2021 as well as Aneeta Sharma (supra) is not followed.

7. Learned counsel for the appellants has contended that the Tribunal has given reason for deduction. PW-1 Meenakshi Panvanda in her evidence has submitted that Vijay Kumar before his death has incurred huge amount for medical expenses11 lacs, which has been bifurcated that he was admitted in Government hospital, Jhajjar, where he spent Rs. 50,000/- thereafter he was taken to PGI, Rohtak, where he spent Rs. 1,60,000/- and further he was admited to Fortis hospital Noida, where also he has incurred about Rs. 9,00,000/- that is how Rs. 11,10,000/- was incurred. The deceased was working in NTPC Haryana as an Assistant Manager (H.R.) and his salary was Rs. 1,44,779/- per month. The age of the deceased was 56 years. In cross examination, it is admitted as observed by the Tribunal that out of total amount of Rs. 11,10,000/-, Rs. 9,00,000/- for medical charges was paid by NTPC and rest of the amount paid by claimant widow. The Tribunal very strangely did not believe the bills as well as the statement of the appellants and dealt with that this issue as of it is dealing with civil suit for damages. The Tribunal relied on the judgment of Sarla Verma (supra) for deciding the age of the deceased to be 56 years and after reproducing paragraph 21 of the said judgment decided that multiplier of 9 would be admissible. The Tribunal again started calculating income of the deceased and has discussed the evidence of PW-1, who has stated that the income of her husband was 1,44,779/- and she has three daughters out of which two daughters have been married and one is unmarried. PW-3 in his evidence has also stated the same and it is on the basis of the deductions which have been made by employer that the Tribunal has come to the conclusion that the income would be Rs. 63,032/- per month despite the fact that there was clinching evidence. If we consider the deductions then it also would be Rs. 1,44,779, therefore, the Tribunal has held that the income of the deceased was Rs. 99,557/- and has deducted all the deductions and has come to the conclusion that his income was Rs. 63,032/- per month. This finding is assailed on the basis of judgment in case of Sunil Sharma and others Vs. Bachitar Singh and others 2011 (11) SCC 425 and Vimal Kanwar and others Vs. Kishore Dan and others 2013 (7) SCC 476. The Tribunal has gone by the conclusion arrived at the judgment in Sarla Verma (supra) and has calculated the compensation as follows and committed error.

8. Rs. 63,032 multiplied by 12, which comes to Rs. 7,56,384/- and then deducted 1/3 of the income as personal expenses of the deceased and held that no evidence as to what was the dependency and the other damages and thereby calculated Rs. 5,04,256 x 9 by holding that judgment in Sarla Verma (supra) specifies that there should be no addition of the age of the deceased is more than 50 years after judgment of Sarla Verma (supra) before the judgment rendered by the learned judge, the judgment in Rajesh and others Vs. Rajbir Singh and others 2013 (3) TAC 697 (SC), Santosh Devi Vs. National Insurance Company Limited and others (2012) 6 SCC 421 and Sanobanu Nazirbhai Mirza and others Vs. Ahmedabad Municipal Transport Service 2013 (4) TAC 369 (SC) despite considering the fact of rule 220A of the Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011 the Tribunal held that no amount for future loss of income can be granted. We would deduct what is known as income tax. The income would be Rs. 82,337 per month + 15% future loss of income and multiplier of 9 and deductions as per judgments. We would have to recalculate the amount as the learned judge has erred in not going through the judgment in case of Sunil Sharma and Vimal Kanwar (supra). If he would have gleaned the same, he would not deduct the amount of Rs. 33,000/- per month from pay of the deceased. The calculation of deductions is given to us by the learned counsel for the appellants.

9. Learned counsels for Insurance Company submitted that the order of the Tribunal is just and proper and allowance could not have been considered as income of the deceased for the purpose calculating compensation. As far as the deceased was concerned, he was in the age bracket of 55-60 years, which is not in dispute and he was survived by his widow and three daughters, which is also not in dispute.

10. This takes this Court to the issue of compensation. The income of the deceased in the year of accident and looking to his profession namely Assistant Manager (H.R.) in N.T.P.C. can be considered to be Rs.82,337/- per month and future loss of income requires to be added in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050.

11. 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.82,337/-

ii. Percentage towards future prospects : 15% namely Rs.12,350/-

iii. Total income : Rs. 82,337+12,350 = Rs. 94687/-

iv. Income after deduction of 1/3rd : Rs. 63,125/- (rounded up)

v. Annual income : Rs.63,125 x 12 = Rs. 7,57,500/-

vi. Multiplier applicable : 9

vii. Loss of dependency: Rs.7,57,500 x 9 = Rs.68,17,500/-

viii. Amount under filial consortium and other non pecuniary heads : Rs.70,000/-

x. Total compensation : 68,87,500/-

12. 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."

13. 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 the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

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 Vs. Venugopal reported in 2012 (1) GLH (SC) 442, the order of investment is not passed because applicants/claimants are neither illiterate nor rustic villagers.

15. We are thankful to learned counsel for the parties for getting decided the matter.

16. Record, if any, be sent back to the Tribunal.

Order Date :- 9.8.2021

AK Pandey