Smt. Sunita Pandey And 2 Others vs Bal Kishun And Another
2021 Latest Caselaw 11039 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1066 of 2021
 

 
Appellant :- Smt. Sunita Pandey And 2 Others
 
Respondent :- Bal Kishun And Another
 
Counsel for Appellant :- Ramesh Chandra Pathak
 
Counsel for Respondent :- Pradeep Kumar Sinha
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Shri Ramesh Chandra Pathak, learned counsel for the appellants; Shri Pradeep Kumar Sinha, learned counsel for the respondents; and perused the record.

2. This appeal, at the behest of the claimants, challenges the judgment dated 07.09.2017 passed by Motor Accident Claims Tribunal/Special Judge (E.C. Act), Basti (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.85 of 2016 awarding a sum of Rs.8,94,700/- with interest at the rate of 7% as compensation.

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondent concerned has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded.

4. It is submitted by learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income of the deceased which is required to be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that amount under non-pecuniary heads granted and the interest awarded by the Tribunal are on the lower side and require enhancement. It is also submitted that as the deceased was survived by his wife, one minor son and father, and hence the deduction towards personal expenses of the deceased as 1/3 which is not in dispute. The multiplier has to be as per that of deceased.

5. Learned counsel for the respondents, has vehemently objected the contentions raised by the learned counsel for the appellants and has submitted that the compensation awarded by the Tribunal is just and proper and does not call for any enhancement.

6. Having heard the learned counsel for the parties and considered the factual data, this Court found that the tribunal did not consider the case of the appellants in its proper prospective. The accident occurred on 20.10.2015 causing death of Anjani Kumar Pandey who was 37 years of age and left behind him, wife, one minor son and father. The tribunal decided the issue of negligence in favour of the appellants and, therefore, the same is not discussed. The discussion in this appeal is confined to award of compensation as decided in issue No.11. The facts as the emerged from the judgment and findings in issue No.11 goes to show that deceased Anjani Kumar Pandey was the husband of appellant No.1 and father of appellant No.2 and son of appellant No.3. At the time of the accident, he was aged about 34 years. The deceased was a Teacher in Primary School in Village Chaturi, District Sravasti and was getting Rs.7300/- per month. The deceased was in hospital after the accident which took place on 20th October, 2015 and the deceased died after six days, when he was admitted in Trauma Centre Lucknow. The appellants examined three witnesses but we are more concerned with the evidence of PW-3, Shri Viswanath Shukla who was serving in Zila Basti as a Teacher and who deposed on oath that the deceased was getting Rs.7300/- per month and if he would have been appointed his pay band Rs.9300/-. The tribunal unfortunately considered his income to be Rs.7300/- per month. The tribunal deducted 1/3 as personal expenses and held that Rs.58,400/- per annum datum figure available to the family. The tribunal considered the judgment of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and granted multiplier of 15, Rs.8700/- granted for medical expenses and Rs.10,000/- for non pecuniary damages with 7% rate of interest.

7. It is contended that the learned tribunal did not consider any amount under the head of future loss of income though the deceased was in employment and the accident had occurred in the year 2015 much after the judgment in Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830. The fact that the delay in FIR has not been accepted to be a ground for discarding the evidence as the tribunal has not considered delay in filing of the FIR. Therefore, we do not delve with the same, the opponent has not examined any witness, the charge-sheet has lodged against the driver of the truck. As per the site plan, the truck came from behind and dashed with the vehicle. The post mortem report as discussed by the tribunal showed that the injuries caused due to the accident. The findings of the fact that accident was caused because of negligence of the truck driver. Hence, we are unable to concur with the oral submission of learned counsel for Insurance Company that we should re-valuate the negligence and hold the deceased to be contributory negligence.

8. The submission of learned counsel for respondents cannot be countenanced as even as per the Uttar Pradesh Motor Vehicles Act, 1998 will not permit us to concur with the tribunal. To which as the deceased was age bracket of 36-40 years, 50% of the income will have to be added as future prospects in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. As far as deduction towards personal expenses of the deceased is concerned, it should be 1/3 as the deceased had three persons to feed and multiplier of 15 is maintained. The medical expenses would be Rs.25,000/- looking to the hospitalize of 6 days and Rs.70,000/- for under the non pecuniary heads.

9. Hence, the total compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below:

i. Income Rs.7300/- p.m.

ii. Percentage towards future prospects : 50% namely Rs.3650/-

iii. Total income : Rs. 7300 + 3650 = Rs.10950

iv. Income after deduction of 1/4 : Rs.8200/- (rounded figure)

v. Annual income : Rs.8200 x 12 = Rs.98400/-

vi. Multiplier applicable : 15(as the deceased was in the age bracket of 36-40 years)

vii. Loss of dependency: Rs.98400 x 15 = Rs.1476000/-

viii. Amount under non pecuniary heads : Rs.70,000/- and Rs.25,000/- (for medical expenses looking to the hospitalize of 6 days)

ix. Total compensation : Rs.15,76,000/-.

10. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers.

11. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, 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) while disbursing the amount.

12. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

13. 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."

14. 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 along with additional 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.

15. Record and proceedings be sent back to the Tribunal after two weeks.

16. We are thankful to learned counsels who have ably assisted the Court.

Order Date :- 1.9.2021

A.N. Mishra/ Ram Murti