Smt. Girija Singh Alias Girija ... vs National Insurance Company Ltd. ...
2021 Latest Caselaw 11037 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. 638 of 2021
 
Appellant :- Smt. Girija Singh Alias Girija Devi And 2 Others
 
Respondent :- National Insurance Company Ltd. And 2 Others
 
Counsel for Appellant :- Deepali Srivastava Sinha,Vidya Kant Shukla
 
Counsel for Respondent :- Avdhesh Chandra Nigam
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard learned Counsel for the appellants and Sri Avdhesh Chandra Nigam for the respondents.

2. The instant appeal is at the behest of claimants against the award dated 10.2.2021 passed by Motor Accident Claims Tribunal, Gorakhpur, in M.A.C.P. No.519 of 2014.

3. The brief facts culled out from the record are that on 19.6.2014, deceased Vinod Kumar Singh along with his wife was going on his motor cycle, being numbered as UP-53-BK-1402. At about 5.00 p.m. in the evening as he reached near Village Shahjanwa, a magic Jeep bearing no. UP-54-D-4093, which was being driven by its driver rashly and negligently, came from the wrong side and dashed the motorcycle of deceased - Vinod Kumar Singh. As a result of which, Vinod Kumar Singh and his wife both sustained injuries and Vinod Kumar succumbed to his injuries. The deceased was earlier in government job and had retired from Indian Army and was getting pension of Rs. 15,069/- per month and after retirement, he joined Defence Security Guard and was getting salary of Rs. 37,039/- per month. After his death, he left his widow, son and daughter. At the time of accident, he was aged 56 years. An F.I.R. of this incident was registered as case Crime No. 273 of 2014, under Sections 279/337/338/427/304-A IPC with the police station concerned. Accordingly, compensation is claimed.

4. On behalf of opposite party no.2, owner of the offending Jeep in his written statement averred that the accident was caused on account of the negligence on the part of the deceased himself. The driver of the offending Jeep was driving the Jeep proprly. The driver of the offending vehicle was having a valid and effective licence and the offending vehicle was also insured by opposite party no.2.

5. On behalf of the Insurance Company, opposite party no.3 in its written statement has averred that the offending vehicle was not insured and the driver of the offending vehicle was not having a valid and effective driving licence on account of which fundamental terms and conditions of the Insurance Company.

6. The Tribunal, after framing 5 issues, and taking evidence oral and documentary passed the award on 10.2.2021 and awarded a compensation for the amount of Rs. 11,01,000/- along with 7% simple interest on the amount from the date of claim petition up to the date of actual payment.

7. The instant appeal on behalf of the claimants has been preferred against the quantum of compensation. Learned Counsel for the appellant has contended that the deceased was retired Army Personnel and after his retirement, he was working in defence security guard under Defence Ministry and was getting salary of Rs. 37,039/- and pension of Rs. 15,069/- total income was Rs. 52,108/- per month after all deductions. This income is proved from the documentary and oral evidence. Moreover, Income-tax Form-16 was also filed before the Tribunal on behalf of the appellants to prove the income of previous year from the date of accident. The Tribunal has assessed the salary of the deceased on lower side in an arbitrary manner without recording any cogent reason. The Tribunal deducted half of the computed compensation on the sole ground that the deceased was discharged from half of the liability as he had married daughter and so the liability during his life time was discharged. It is submitted that this deduction is bad in the eye of law which is not supported from any authoritative pronouncement or law.

8. Learned Counsel for the respondent - Insurance Company on query could not bring home his submission that the income of the deceased was properly computed by the Tribunal and the Tribunal was not wrong to deduct the pension of the deceased from his income. It is submitted that the future prospect as granted by the Tribunal was 15%, but it should have been 10% as the deceased was above 55 years on the date of the accident and was within the age bracket of 56 - 60 years. The deceased has left behind widow, one son and a married daughter. The married daughter was not dependent on the deceased so 1/3rd should have been deducted for the personal expenses of the deceased in place of 1/4th as done by the Tribunal.

9. On behalf of the appellants to prove the income of the deceased PW1 - Girja Devi, PW4 - Vinay Kumar Gupta, PW3 - Lakshman Singh have been examined on oath.

10. PW4- Vinay Kumar Gupta is a Clerk in the office of Principal Controller of Defence Account, Allahabad, has proved the pension slip of deceased Vinod Kumar and deposed that Vinod Kumar Singh was getting pension of Rs.13,206/- per month in the month of May, 2014 and this certificate has been issued by the authorities of his department which he had brought and proved the same by producing the same.

11. PW3 - Lakshman Singh deposed so as to prove the salary slip of deceased Vinod Kumar Singh and deposed that deceased Vinod Kumar Singh was employed along with him in Defence Security Corps department, Gorakhpur. His pay slip for the month of May 2014 and June 2014 was produced by him along with covering letter of the department. As per the record, the salary of deceased Vinod Kumar Singh was Rs. 37,039/-. Photostat copy of original salary slip which was certified was filed by him before the Tribunal.

12. The salary slip of the deceased - Vinod Kumar Singh of the month of May, 2014, is paper no.47-C/3 and 47-C/4. It reflects the salary of deceased to be Rs. 37,039/-. The deductions which can be made from his salary is income-tax only as per decisions of Apex Court in Vimal Kanwar and others Vs. Kishore Dan and others, 2013 (3) TAC 6(SC) and in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.).

13. So far as the pension of the deceased is concerned, in paper no. 92-ga, the pension of deceased is shown to be Rs. 13,206/-.

14. The Tribunal has computed the income of the deceased to be Rs. 22,000/- per month ignoring the documentary evidence about the payment which the deceased was getting before the accident. The Tribunal had assessed the income of the deceased Rs. 22,000/- on the basis of the Income-tax Return Form 16. The Income-tax Return Form-16, which is paper no.73-C concerns the assessment year 2013-14 annual salary of the deceased is shown Rs.2,82,068/-. On the basis of the Form-16, how the Tribunal has computed monthly income of the deceased to be Rs. 22,000/- is beyond comprehension. The Tribunal has again halved half of the total income after having computed the same on the ground that 50% liability of the deceased has been discharged as they have got their daughter married, this finding is untenable. The Tribunal should have computed the income of the deceased on the basis of income which he was getting after retirement in Defence Security Corps department, therefore, the monthly income of the deceased would be Rs. 37,039.00.

15. As far as future prospect is concerned, we are supported in our view by the decision of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021 SC 359 and hold that the finding of the Tribunal as far as future prospect is concerned is just and proper.

16. Hence, the total compensation payable to the appellants is computed herein below:

i. Income Rs. 37,039/- per month.

ii. Percentage towards future prospects : 15% namely                     	Rs. 5,556/- (round figure)
 
iii. Total income : Rs. 37,039 + 5,556 = Rs. 42,595/-
 
iv. Income after deduction of 1/3rd : Rs. 28,397/- (rounded up )
 
v. Annual income : Rs. 28,397 x 12 = Rs. 3,40,764/-
 
vi. Multiplier applicable : 9
 
vii. Loss of dependency: Rs. 3,40,764 x 9 = Rs. 30,66,876/-
 
viii. Amount under non-pecuniary head : Rs. 70,000/-
 
ix. Total compensation : Rs. 31,36,876/- 
 

17. As far as issue of rate of interest is concerned, it should be 7.5% in view of the decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, reported in 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." 

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 award 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.

20. 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 claimant 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.

21. This Court is thankful to both the learned Advocates for getting this matter disposed of during this pandemic.

Order Date :- 1.9.2021

Irshad