Indrawati Singh vs Sarvesh Soni And 5 Others
2021 Latest Caselaw 4366 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21 A.F.R.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 337 of 2021
 

 
Appellant :- Indrawati Singh
 
Respondent :- Sarvesh Soni And 5 Others
 
Counsel for Appellant :- Shiv Narayan Pandey
 
Counsel for Respondent :- Sushil Kumar Mehrotra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

1. Heard Sri Shiv Narayan Pandey, learned counsel for the appellant and Sri S.K. Mehrotra, learned counsel for the Insurance Company namely, TATA AIG General Insurance Company Ltd.

2. This appeal, at the behest of the injured-claimant challenges the award dated 9.4.2019 passed by the Motor Accident Claims Tribunal/Additional District Judge Fast Track Court (New), Chitrakoot (hereinafter referred to as 'Tribunal') in Claim Petition No. 57/70/2018 awarding a sum of Rs.7,14,852/- as compensation with an interest at the rate of 7%.

3. The accident is not in dispute. The injured was traveling in a vehicle is also not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondent-Insurance Company has not challenged the liability imposed on them. The only issue which is to be decided is the quantum of compensation awarded.

4.The vehicle was insured with TATA AIG General Insurance on the date of the accident and is not in dispute as TATA AIG General Insurance has accepted the judgement and award passed in Motor Accident Claim Petition no. 57/70/2016 decided by Motor Accident Claim Tribunal/Addl. District Judge, FTC (New), Chitrakoot.

5.The only argument raised by the learned counsel for appellant in support of enhancement of the claim amount before this Court is that the appellant has sustained 90 per cent disability as a result of the accident and the Tribunal has not given due weight to this aspect of the matter and has also not awarded the compensation amount under the head of suffering, special diet and more particularly under the head of loss of her income due to the accident and further the Tribunal has also not granted any amount under the head of future economic loss to be caused to the complainant appellant due to 90 per cent disability while calculating the quantum of compensation admissible to her.

6. The learned counsel for the appellant has contended that the appellant was running a Canteen in 'Mandi Parisar' and was earning a sum of Rs. 16000/- per month from the said occupation and it has not been taken into consideration by the Tribunal. It is further submitted that though there was an additional income of Rs. 81500/- but it was discarded by the Tribunal.

4. The injured is now 57 years of age and she was 54 years of age when the accident occurred in the year 2017. She was running a canteen in 'Mandi Parisar'. She sustained 90% disability. She was admitted to District Hospital, thereafter she was referred to Alka Hospital, Allahabad w.e.f. 3.12.2017 to 14.1.2018. She had to undergo surgery on 4.12.2017 in which her left leg was amputated, as a result of which she became handicapped with 90 per cent disability.

5. It is submitted by learned counsel for the appellant that the Tribunal has taken into consideration a sum of Rs.3000/- per month to be the the income of the injured-claimant, which is unjust and improper, at least it could not be less than Rs.16,000/- per month. It is submitted that no amount under the head of future loss of her career has been determined and granted. It is also submitted that the amount under the non-pecuniary heads and the interest awarded are also on the lower side and requires to be enhanced in view of the following authoritative pronouncements:

(i) Sanjay Kumar Vs. Ashok Kumar and another, (2014) 5 SCC 330;

(ii) Syed Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735;

(iii) Mekala Vs. M. Malathi and another, (2014) 11 SCC 178; and

(iv) Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011.

(v) Hari Babu Vs. Amrit Lal and others, 2019 (2) T.A.C. 718 (All.).

6. As against this, it is submitted by the learned counsel for the respondent that learned Motor Accident Claim Tribunal has rightly considered the income of the claimant appellant to be Rs. 3000/- as there is no documentary evidence, which may prove the income to be of Rs. 16,000/- per month, was produced before the Tribunal and it is also submitted that the award can not be said to be incorrect rather it is just and proper and is in consonance with the decision of the Apex Court coupled with the fact in absence of any proof of income nothing more than the compensation amount granted by the impugned award the claimant was entitled to. The Tribunal has granted what is known as a just compensation. The compensation awarded by the Tribunal is just and proper and does not call for any interference by this Court as the income which is not proved cannot be taken into consideration while calculating the compensation.

7. After hearing the counsel for the parties and perusing the judgment and order impugned, this Court feels that her income can be considered to be Rs.6,000/- per month, to which as the injured was above 50 years at the time of accident, 40% of the income would have to be added as future loss of income to the injured in view of the decision of the Apex Court in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 and Syed Sadiq and others (Supra). The loss of earning capacity to the extent of 25% as considered by the Tribunal is maintained.

8. Further, the amount granted by the Tribunal for medical expenses is enhanced to Rs.3,50,000/- and Rs.50,000/- for future medicine, Rs.10,000/- for special diet and Rs.10,000/- for attendant charges are granted. As far as the amount under pain, shock and sufferings is concerned, looking to the fact that she has admitted in hospital and has undergone surgery, the amount is enhanced to Rs.25,000/-.

9. Hence, the total compensation payable to the appellant is computed herein below:

i. Income : Rs.3,000/-

ii. Percentage towards future prospects : 40% namely Rs.1200/-

iii. Total income : Rs. 3000 + 1200 = Rs.4200/-

iv. Loss of earning capacity : 25% namely Rs.1050/-

v. Annual loss : Rs.1050 x 12 = Rs.12,600/-

vi. Multiplier applicable : 11

vii. Total loss : Rs.12,600 x 11 = Rs.1,38,600/-

viii. Medical expenses : Rs.3,50,000/-

ix. Future medicine : Rs.50,000/-

x. Special diet : Rs.10,000/-

xi. Attendant charges : Rs. 10,000/-

xii. Amount under pain, shock and suffering : Rs.25,000/-

xiii. Total compensation : 7,14,852/-

10. 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."

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

12. 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 petitioner till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

Order Date :- 23.3.2021

Faridul