Allahabad High Court
Kavita And 4 Others vs Ismile And 2 Others on 17 March, 2021
Bench: Kaushal Jayendra Thaker, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 21
Case :- FIRST APPEAL FROM ORDER No. - 131 of 2019
Appellant :- Kavita And 4 Others
Respondent :- Ismile And 2 Others
Counsel for Appellant :- Ashish Kumar Singh,Ajay Kumar Singh
Counsel for Respondent :- Vijay Prakash Mishra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajit Singh,J.
1. Heard Sri Komal Mehrotra learned counsel for the appellants and Sri Vijay Prakash Mishra, learned counsel for the respondent and perused the judgment and order impugned.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 3.10.2018 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.9, Saharanpur (hereinafter referred to as 'Tribunal') in M.A.C.P. No.64 of 2018 awarding a sum of Rs.4,80,800/- with interest at the rate of 7%.
3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The Insurance Company has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded.
4. The deceased was an agriculturist and was survived by his wife, two minor children and the aged parents who were dependent on him. The Tribunal considered the income of the deceased to be Rs.100/- per day which is even less than minimum wages which are made applicable in the State of Uttar Pradesh.
5. We are, therefore, called upon to re-evaluate the quantum.
6. Learned counsel for the appellant has contended that the income of the deceased should have been considered to be Rs.6,000/-, to which, 40% of income requires to be added as future income of the deceased in view of the decision of the Apex Court in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 as the deceased was below 40 years of age and was self employed.
7. Learned counsel for the appellant has further submitted that the deduction of 1/3rd towards personal expenses of the deceased is erroneous and it should have been 1/4th as the deceased was survived by five dependants.
8. It is further contended by learned counsel for the appellant that for non pecuniary damages only Rs.20,000/- has been awarded which is on the lower side and the Tribunal has failed to follow the the decision of the Apex Court in Pranay Sethi (Supra).
9. It is further submitted that the rate of interest should be 12% and not 7% as this Court has given a go by to the U.P. Motor Vehicle Rules and has held that U.P. Motor Vehicle Rules as far as interest is concerned is not mandatory.
10. As against this, learned counsel for the respondent-Insurance Company has submitted that the income of the deceased was not proved and, therefore, the Tribunal has rightly considered the income of the deceased to be Rs.3,000/-. He has submitted that the deduction of 1/3rd and the compensation awarded by the Tribunal is just and proper and does not call for any interference.
11. Having heard the counsel for the parties and considered the factual data, this Court found that the accident occurred on 3.12.2017 causing death of Mahesh Kumar who was 35 years of age and was survived by five dependants. The deceased was an agriculturist and was also doing the business of selling milk. Even in the year of accident can be considered to be Rs.6,000/- per month. To which as the deceased was below 40 years, 40% will have to be added in view of the decision of the Pranay Sethi (Supra). We are in agreement with learned counsel for the respondent-Insurance Company that deduction towards personal expences of the deceased should be 1/3rd and, hence, the same is not disturbed. As far as the multiplier is concerned, there is no dispute between the parties.
12. As far as amount under non pecuniary damages is concerned, it should be Rs.70,000/- with 10% rise every year which would bring the lump sum figure to Rs.1,00,000/-.
13. Hence, the total compensation payable to the appellants is computed herein below:
i. Income: Rs.6,000/-
ii. Percentage towards future prospects : 40% namely Rs.2400/-
iii. Total income : Rs. 6,000 + 2400 = Rs.8400/-
iv. Income after deduction of 1/3 = Rs. 5600/-
v. Annual income : Rs. 5600 x 12 = Rs.67,200/-
vi. Multiplier applicable : 16
vii. Loss of dependency: Rs.67,200 x 16 = Rs.10,75,200/-
viii. Amount under non pecuniary damages : Rs.1,00,000/-
ix. Total compensation :Rs.11,75,200/-
14. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of this Court in First Appeal From Order No. 2974 of 2017 (Smt. Munni Devi And 5 Ors. Vs. Heera Lal And 2 Ors) decided on 23.2.2021 wherein this Court has held as under :
"27. This takes us to the vexed 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 cannot grant interest less than 7% 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."
15. No other grounds are urged orally when the matter was heard.
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 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.
Order Date :- 17.3.2021
DKS
