Smt.Bhoori And Others vs Ashraf And Another
2021 Latest Caselaw 11455 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3097 of 2007
 

 
Appellant :- Smt.Bhoori And Others
 
Respondent :- Ashraf And Another
 
Counsel for Appellant :- Abhai Saxena,Krishna Kumar Singh,Mohd. Asim Zulfiquar
 
Counsel for Respondent :- S.C.Srivastava
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

1. By way of this appeal, the claimants-appellants who are legal heirs of the deceased have challenged the judgment and order dated 15.09.2007 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Moradabad (hereinafter referred to as ''Tribunal') in M.A.C.P. No. 156 of 2007. The appellants' claim petition for compensation on account of the death of the sole bread earner came to be dismissed by the Tribunal.

2. The brief facts as culled out from the record, which is placed before this Court are that at 07:00 AM, when deceased after completing his duty on 13.01.2006 was plying his cycle at that point of time at a place known as turning Bheetkheda, a truck bearing No. HR 55/6244 came on the wrong side rashly and negligently and dashed the cyclist. Shyam Lal-deceased suffers serious injuries. The deceased before succumbed to injuries, taken up for medical aid as he had suffered several injuries but during his treatment he succumbed to the injuries. The deceased was 40 years of age and he was serving with Northern Indian Railway Mandal as a gang-man and was posted at Rampur, his basic salary was Rs.8,850/- per month.

3. On the claim petition being filed, the respondent no.1 appeared and did not accept any of the averments made in the claim petition and contended that the vehicle if it is held to be liable, the vehicle was insured with respondent no.2 from 10.11.2005 to 09.11.2006 and the driver was having a valid licence to ply the same vehicle. However, The New India Assurance Co. Ltd. has replied to this denial. The Tribunal framed three issues and held that it was not proved that the driver of the truck was rash and negligent while driving the truck.

4. The Tribunal disbelieved the presence of P.W.-1 and P.W.-2 and held that just because the charge sheet it does not conclude that the accident had occurred with the same truck and thereafter, decided Issued nos.2 and 3 also against the appellants.

5. Heard learned counsel for the parties and perused the record.

6. The evidence on record comprises of oral testimony of witnesses and the documentary evidence in support of the said accidental injuries. The post-mortem report shows that the deceased died due to the injuries which he had sustained in the accident and hence, it is a homicidal death, which is proved. As far as involvement of the truck is concerned. The respondent no.1 or the driver has not stepped into the witness box. The only defence has been taken to the written statements and the evidence on record is very clear. P.W.-2 and P.W.-3 have stated in their oral testimony and in the cross-examination, the doubt created by the Tribunal that they were not eye witnesses and their evidence is not worth believing is contrary to the judgment of the Apex Court in the case of Anita Sharma and Others Vs. The New India Assurance Co. Ltd. and Another, 2021 (1) SCC 171, wherein the approach of the High Court as as to appreciate turns of even is in a very casual manner is deprecated. In our case, the judgment of Sunita and Others Vs. Rajasthan Sate Road Transport Corporation and Another, 2019 (1) T.A.C. (S.C.) will also be applicable to the facts of this case. The judgment of the Supreme Court in the case of Mangla Ram Vs. Oriental Insurance Co. Ltd. and Others, 2018 (4) Supreme 525, cited by the appellant goes to show that pleadings of parties will have to be scrutinized in a practical manner.

7. The learned Tribunal has failed to consider this aspect while dismissing the claim petition. Hence, this appeal requires to be allowed and the impugned judgment and award of the Tribunal dismissing the claim petition being against the mandate of law and facts requires to be quashed.

8. The counsel for the respondent contended that no amount can be granted and requested to reject the appeal and or remand the same to the Tribunal. The said contention is rejected in view of the decision in Bithika Mazumdar Vs. Sagar Pal, (2017) 2 SCC 748, wherein it has been held that compensation claim petition which remained undecided for nine years and the record was before the Apex Court, the Apex Court decided the quantum.

9. Similarly, this Court feels that as sixteen years have elapsed from filing of claim appeal and that the record is before this Court, instead of directing the parties to go before the Tribunal only for the assessment of compensation which could cause further delay and will also cause further loss to the appellants, it would be more justifiable if this Court decide the quantum as this Court has to decide only quantum under Section 140 of the Act, 1988 which would be the final amount payable.

10. Keeping in view the above fact, the income of the deceased may be fixed as Rs.8,000/- per month. Hence, the annual income of deceased is fixed as Rs.96,000/- per annum. The age of the deceased was 40 years, hence in the light of the judgment of the Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) 613 and National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 2017 LawSuit (SC) 1093, due to being self employed and having the age of 40 years, 30% shall be added towards future prospects in the income of the deceased.

11. As far as the dependency is concerned, there are five dependents. Keeping in view the number of dependents, ¼th shall be deducted for personal expenses. The multiplier of 15 has to be applied. Under the non pecuniary head, claimants-appellants shall be entitled to get Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses. Apart from it, wife of the deceased shall also be entitled to get Rs.40,000/- for loss of consortium. In this way, claimants shall get Rs.70,000/- under the head of non pecuniary damages with increase of 10% for every three years as per the judgment of Apex Court in Pranay Sethi (Supra).

12. The total compensation payable to the appellants are computed herein below:

(i) Annual income Rs.8,000/- per month = 96,000/- per annum.

(ii) Percentage towards future prospects : 30%. Rs.28,800/-

(iii) Total income : Rs.96,000 + 28,800 = Rs.1,24,800/-

(iv) Income after deduction of ¼th : Rs.93,600/-

(v) Multiplier applicable : 15

(vi) Loss of dependency : Rs.93,600 X 15 = 14,04,000/-

(vii) Amount under non pecuniary head: Rs.70,000/- +35,000/- = 1,05,000/-

(viii) Total compensation : Rs.14,04,000/- + 1,05,000/- = Rs. 15,09,000/-

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. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal is set aside. The respondent-The New India Assurance Co. Ltd. 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.

15. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in 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 claimants 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) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.

Order Date :- 10.12.2021

P.S.Parihar

(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)