Smt. Kamla And Others vs Shri Gurdeep Singh Kukreja And ...
2021 Latest Caselaw 11467 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1491 of 2021
 

 
Appellant :- Smt. Kamla And Others
 
Respondent :- Shri Gurdeep Singh Kukreja And Another
 
Counsel for Appellant :- S.C.Kesarwani
 
Counsel for Respondent :- Dharmendra Kumar,Rahul Chaudhary
 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral Judgment by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by the claimants-appellants against the judgment and order dated 31.03.2010 passed by Motor Accident Claims Tribunal/Chairman, District Judge, Etah (hereinafter referred to as ''Tribunal') in M.A.C.P. No. 259 of 2009 (Smt. Kamla and Others Vs. Shri Gurdeep Singh Kakreja and Another), whereby the learned Tribunal has awarded a sum of Rs.2,24,500/- as compensation to the claimants with interest at the rate of 6% simple interest per annum .

2. The claimants-appellants have preferred this appeal for enhancement of quantum.

3. The brief facts of the case are that claimants-appellants filed a Motor Accident Claim Petition before the Tribunal for claiming the compensation under Motor Vehicles Act, 1988 for the death of Satyavir @ Satvir in a road accident with the averments that on 20.05.2009 deceased was going with his brother in tractor bearing No.U.P. 21-B 8515 with Trauli filled up with sand, on National Highway-24. At about 2:30 AM (night) when the tractor reached near Akhhar Dham Temple, a truck bearing No. H.R. 12 A 1425 came from behind, which was driven very rashly and negligently by its driver and hit the tractor from behind. In this accident, the deceased fell from the tractor and the wheel of the truck ran over him due to which he sustained fatal injuries and died on the spot. Respondents filed their respective written statements.

4. Aggrieved mainly with the compensation awarded, the appellants preferred this appeal.

5. Heard Mr. S.C.Kesarwani, learned counsel for the appellants and Dharmendra Kumar, learned counsel for the respondent. Perused the record.

6. The accident is not in dispute. The issue of negligence has attained finality and The Oriental Insurance Co. Ltd. (in short ''Insurance Company") has not challenged the liability imposed on it by the Tribunal. The only issued to be decided is the quantum of compensation awarded by the Tribunal.

7. Learned counsel for the appellants-claimants has submitted that the deceased was 21 years of age at the time of accident and was unmarried. It is also submitted that monthly income of the deceased was Rs.15,000/- because he was a labourer but the Tribunal has assessed his income only Rs.2,500/- per moth, which is on the lower side. It is next submitted that the Tribunal has not awarded any sum towards future loss of income.

8. It is argued by learned counsel for the appellants that the Tribunal has applied multiplier of 11 on the basis of the age of the mother of the deceased while the multiplier should have been applied according to the age of the deceased as held by Hon'ble Apex Court in the case of Munna Lal Jain vs. Vipin Kumar Sharma [2015 (3) TAC 1 (SC). It is also argued that under the non pecuniary damages no amount is awarded for filial consortium and the rate of interest is awarded only 6% per annum and that too simple imprisonment, which is not just and proper.

9. Per contra, learned counsel for the Insurance Company has submitted that there is no evidence is on record regarding the income of the deceased, hence assessment of monthly income of the deceased by Tribunal as per the settled principles of law. It is further submitted by Insurance Company that Tribunal has deducted 1/3 towards personal expenses of the deceased while ½ should have been deducted as per the direction of Hon'ble Apex Court in Munna Lal Jain (Supra). The rate of interest awarded is also just and proper, hence, there is no infirmity or illegality in the impugned judgment and order passed by Tribunal which may call for any interference by this court.

10. This fact is not disputed that the deceased was 21 years of age and unmarried boy at the time of accident. Learned Tribunal has assessed his monthly income Rs.2,500/- but keeping in view the fact that deceased was labourer and his daily income may be safely assumed as Rs.100/-, hence, we held that the monthly income of the deceased at Rs.3,000/- which amounts to 3,000 X 12 = Rs.36,000/- per annum.

11. Learned Tribunal has not awarded any amount towards future loss of income of the deceased. The judgment of Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 217 LawSuit (SC) 1093 is applicable retrospectively, hence, as per the aforesaid judgment, keeping in view the age of the deceased, 40% shall be added to the income of the deceased for future prospects. Tribunal has deducted 1/3rd of the income towards personal expenses of the deceased. As per the direction of Hon'ble Apex Court in Munna Lal Jain (Supra), ½ shall be deducted towards his personal expenses because the deceased was unmarried boy.

12. In this vary judgment Munna Lal Jain (Supra), it is also held by Hon'ble Apex Court that multiplier shall be applied according to the age of the deceased. Learned Tribunal has applied multiplier of 11 but we held that as per the judgment of Smt.Sarla Verma vs. Delhi Transport Corporation [2009 (2) TAC 677 (SC) multiplier of 18 shall be applied as per the age of the deceased. Appellant no.1 shall also get Rs.15,000/- for loss of estate, Rs.15,000/- for funeral expenses. Apart from it, the appellant no.1 shall also be entitled to get Rs.40,000/- towards filial consortium in the light of the judgment of Hon'ble Apex Court in the case of Kurvan Ansari alias Kurvan Ali and another vs. Shyam Kishore Murmu and another [2021 (4) TAC (SC)] .

13. Hence, the total compensation, in view of the above discussions, payable to the appellants no.1 is being computed herein below:

(i) Annual Income : (Rs3,000 X 12) = Rs.36,000/- Per annum

(ii) Percentage towards future prospects 40% : Rs. 14,400/-

(iii) Total income : Rs. 36,000/- + Rs.14,400/- = Rs. 50,400/-

(iv) Income after deduction ½ : Rs.25,200/-

(v) Multiplier applicable : 18

(vi) Loss of Dependency : Rs. 25,200/- X 18 = Rs.4,53,600/-

(vii) Filial consortium : Rs.40,000/-

(viii) Amount under non pecuniary head : Rs.30,000/-

(ix) Total compensation : Rs.4,53,600 + 40,000 + 30,000 = Rs.5,23,600/-

14. 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."

15. Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.

16. Perusal of impugned judgment and award shows that the claim petition was filed by claimant-appellant no.1, who is mother of the deceased along with claimant-appellant nos.2 to 5, who are brothers of the deceased. Learned Tribunal has committed gross error as it has directed that claimant-appellant nos.2 to 5 shall be entitled to Rs.15,000/- each out of the total amount of compensation, while there are not legal representatives of the deceased because mother of the deceased is alive and petitioner no.1 in the claim petition. According to the Hindu Succession Act, mother is Class-I heir while brothers are Class-II heirs, hence, claimants-appellants no.2 to 5 shall not be entitled to receive any amount of compensation and the entire amount shall be paid to appellant no.1 i.e. Smt. Kamla (mother of the deceased). If appellant nos. 2 to 5 have already received any amount of compensation, it shall be recovered from them and paid to the appellant no.1-Smt. Kamla.

17. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent- Insurance Company shall deposit the amount within a period of 08 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.

18. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [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 :- 13.12.2021

P.S.Parihar

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