Smt. Sushila Devi And Others vs Devendra And Others
2021 Latest Caselaw 3276 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 

 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1367 of 2012
 

 
Appellant :- Smt. Sushila Devi And Others
 
Respondent :- Devendra And Others
 
Counsel for Appellant :- Anju Shukla,Nigamendra Shukla
 
Counsel for Respondent :- Rahul Sahai,Ajay Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

(Ref: Civil Misc. Delay Condonation Application)

1. Heard learned counsel for the parties.

2. This is an application seeking condonation of delay in filing the appeal.

3. Cause shown for the delay is sufficient, hence, the delay is condoned.

4. This application, accordingly stands allowed.

Order Date :- 12.3.2021

A.N. Mishra

A.F.R.

Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1367 of 2012

Appellant :- Smt. Sushila Devi And Others

Respondent :- Devendra And Others

Counsel for Appellant :- Anju Shukla,Nigamendra Shukla

Counsel for Respondent :- Rahul Sahai,Ajay Singh

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

1. Heard Sri Nigamendra Shukla, learned counsel for the appellants; Sri Rahul Sahai ably assisted by Sri Parihar, learned counsel for respondent-Sri Ram General Insurance Company; and Sri Ajay Singh, learned counsel for National Insurance Company. Delay in filing this appeal has been condoned vide order of the date passed in delay condonation application.

2. This appeal, at the behest of the claimants, has been preferred against the judgment and order dated 06.04.2012 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court no.03, Ghaziabad (hereinafter referred to as 'Tribunal') in M.A.C. No.449 of 2009 awarding a sum of Rs.3,75,761/- only with interest at rate of 6% conditionally.

3. By consent of learned counsel for parties, we propose to admit the appeal and hear and decide the lis finally as there appears prima facie error apparent on the face of the record. It is an appeal of the year 2012. The accident had taken place in the year 2009. It is apparent from award that no future loss of income has been awarded by the tribunal. The multiplier applied is also not in consonance with the judgment of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. The Tribunal has awarded multiplier of 13 as per the age of the parents though the deceased was a married person. All this would permit us to take up the matter for final disposal so that the insurance company may not be burdened with huge amount by way of interest.

4. The record is not necessary as the Insurance Company have accepted their liability. The factum of accident having taken place is not in dispute. The issue of negligence decided by tribunal has also attained finality. The death was due to accidental injuries is also not disputed. The insurance company has not filed any appeal challeging the award. No orders adverse to owners or drivers are passed.

5. The only dispute raised relates to compensation which has been awarded the latest decision of the Supreme Court reported in (2021) 1 SCC 171, in case titled Anita Sharma and others v. New India Assurance Company Limited and another and the judgment of this Court in the case of Smt. Munni Devi And 5 Ors. v. Heera Lal And 2 Ors., FIRST APPEAL FROM ORDER No. - 2974 of 2017 decided on 23.2.2021 will also have to be followed while deciding compensation.

6. The appellants have contended that the deceased was a Sales Executive in Colortech Polymer Company and was earning Rs.6,150/- with 12% P.F. and was also entitled to bonus. It is submitted by Shri Shukla that this amount has been disbelieved by the Tribunal, as no documentary evidence to prove the same was produced and oral testimony of PW-1 (father) and PW-3 (employer) has been disbelieved by the tribunal.

7. Learned counsel Shri Sahai assisted by Shri Parihar for the respondent-Insurance Company has contended that no evidence whatsoever was produced to prove that the deceased was in employment, namely, appointment letter, pay slip, and/or register in which name of the deceased might have been mentioned and, therefore, the tribunal has rightly not considered that the deceased was a salaried person and has considered his income as per the judgment of Laxmi Devi and others v. Md. Tanwar and others, 2008 (2) TAC 394 SC and has considered the income to be Rs.100/- per day as a labourer and, therefore, his income has rightly been considered to be Rs.2500/- per month. It is stated by Sri Sahai that the widow has already remarried and, therefore, there is no question of any award being passed in her favour. It is further submitted that the fact that she had re-married and, therefore, the deductions should have been ½ for personal expenses. It is also submitted by Shri Parihar that as it is not proved that he was in what kind of employment and whether he was in fact employee or/not, the award of future income loss was not granted as the law was sattled in decision of Sarla Verma (Supra).

8. It is submitted by Shri Shukla that as far as the multiplier is concerned, the Tribunal has considered the judgment of Sarla Verma (Supra) but has considered the age of the parents and not of the deceased which could not have been done and the issue is no longer res integra rather, the age in case of married person even if the widow had relinquished her right. The multiplier to be awarded has to be as per the age of the deceased even if the law as applicable applied in those days, the multiplier should have been 17 as the deceased was not a bachelor. Per contra, Shri Parihar has very feebly argued that the age of the parents has been rightly considered as the widow has already remarried and, therefore, there should be no enhancement in the multiplier awarded. We cannot accept this submission of Shri Parihar.

9. It is further submitted by Sri Shukla that the rate of interest awarded in the year 2012 could not have been 6% even as per the Rule 220 (6) of Uttar Pradesh Motor Vehicles Rules (11th Amendment), 2011 should have been above 7%, in view of the judgment of this High Court it should have been 12% and according to the learned counsel, the non pecuniary damages granted are also on the lower side.

10. Having perused the judgment, one fact emerges that the widow remarried during the pendency of the litigation and the legal representatives are the parents and brother.

11. According to this Court, learned tribunal has committed an error apparent on the face of the record as strict adherence to principles of civil trappings cannot be made applicable to motor vehicles claim cases.

12. It is prima facie proved that the deceased was in service, namely, the father deposed on oath that the deceased was serving as a Sales Executive in Colour Tech Polymer Company. The claimants have examined the father of deceased as well as the widow and also the proprietor of the said company, who has deposed that the deceased was in service but there is no evidence in rebuttal led by the Insurance Company to come to a definite conclusion that the deceased was not employed. The deceased was a Graduate in Arts even if we consider the minimum wages of a labourer in the year 2009 and even if we go by the recent judgment of the Apex Court wherein it has been held that minimum wage would be made applicable which we are considering to be Rs.6,000/- per month, which we feel is just and proper, which is nearby to the income as an employee as mentioned by PW-1, PW-2 and PW-3.

13. The second error which is apparent on the face of the record is that the tribunal has not considered any amount for future loss of income. The decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 will permit us to add future loss of income however even if it is considered that he was in employment it was a private employment and hence the parameters fixed for self employed will have to take into consideration namely 40% and not 50% as orally submitted by Shri Shukla. We accept the alternative submission of Shri Sahai that if the Court grants future loss it has to be 40% of the income. Shri Shukla vehemently objects to this, but it would be 40% of the income as he has below 30 years of age, i.e., Rs.6000+ Rs.2400 which comes to Rs.8400/- per month.

14. The submission of Shri Sahai that, the widow has remarried and has not been granted any compensation, the loss for personal expenses should have been 1/2 and not 1/3, we are unable to accept this proposition, the reason being before the death of the deceased, he was happily married person, and he was residing with the joint family and, therefore, as per cardinal principle laid down in Sarla Verma (Supra) and later on Pranay Sethi (Supra) as there were three persons (parents and wife) 1/3 will have to be deducted for personal expenses.

15. Hence, the family would be entitled to Rs.5600/-p.m and we award the filial consortium of Rs.50,000/- in view of the latest decision of this Court in Smt. Munni Devi And 5 Ors. v. Heera Lal And 2 Ors., FIRST APPEAL FROM ORDER No. - 2974 of 2017 decided on 23.2.2021 and Rs.30,000/- under other non-pecuniary damages.

16. Hence, the total compensation payable to the appellants as discussed herein above would be:

i. Income Rs.6000/- p.m.

ii. Percentage towards future prospects : 40% namely Rs.2400/-

iii. Total income : Rs. 6,000 + 2,400 = Rs.8,400/-

iv. Income after deduction of 1/3rd : Rs.5600/-

v. Annual income : Rs.5600 x 12 = Rs.67,200/-

vi. Multiplier applicable : 17

vii. Loss of dependency: Rs.67,200 x 17 = Rs.1142400/-

viii. Amount towards filial consortium : Rs.50,000/-

ix. Amount towards loss of estate : Rs.30,000/-

x. Amount awarded in medical expenses not disturbed.

xi. Total compensation (vii+viii+ix): 12,22,400/-

17. This takes us to the question of grant of interest. The repo rate is declining day in day out. The Rule 220 (6) of Uttar Pradesh Motor Vehicles Rules (11th Amendment), 2011 prescribes 7% rate of interest. We should not grant interest less than 7% interest and, therefore, in view of the decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.), we consider it just and proper to award 7.5% rate of interest. The interest has to be from the date of filing of the claim petition and we confirm the same.

18. No other grounds are urged orally when the matter was heard.

19. 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 No.3, Sri Ram General 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 if deposited be deducted from the amount to be deposited.

20. The learned Registrar General is requested to circulate this judgment to the Tribunals for future guidance on question of multiplier and future income loss.

21. We are thankful to Shri Rahul Sahai assisted by Shri Parihar, Ajay Singh and Nigamendra Shukla for getting this matter disposed of expeditiously.

Order Date :- 12.3.2021 / A.N. Mishra