Kumari Anju And Others vs Suresh Kumar Sachan And Others
2021 Latest Caselaw 11045 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
  Reserved on 17.8.2021
 
                                                                               Delivered on 2.9.2021
 
Court No. - 37                                              
 
                                                                            
 
Case :- FIRST APPEAL FROM ORDER No. - 3244 of 2007
 
Appellant :- Kumari Anju And Others
 
Respondent :- Suresh Kumar Sachan And Others
 
Counsel for Appellant :- Deepak Singh
 
Counsel for Respondent :- Amaresh Sinha,Saurabh Srivastava
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Vivek Varma,J.

1. Heard Sri Deepak Singh, learned counsel for the appellant, Sri Amaresh Sinha and Sri Saurabh Srivastava, learned counsel for the respondent insurance companies none for owner or driver of truck. perused the judgment and order impugned.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 22.8.2007 passed by Motor Accident Claims Tribunal, Varanasi in M.A.C.P. No.151 of 2004 awarding a sum of Rs.14,08,000/- with interest at the rate of 6% as compensation for death of four family members of the claimants who lost their family members in the fateful accident .

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is in dispute. The respondent has not challenged the liability imposed on them. The issues to be decided are, the quantum of compensation awarded and whether the deduction of 25% for negligence of driver of maruti car could be deducted from the compensation awarded to the heirs of non tort feasor. The legal heirs have lost mother and father and appellant no.4 has lost her son and daughter-in-law and, therefore, even if we consider the matter from the angle of negligence of driver to the tune of 25 % for other deceased who have passed away, it would not be a case of contributory negligence but it would be a case of composite negligence and, therefore, no amount could have deducted by the Tribunal from the compensation awarded for the death of non tort feasors, namely, passengers. The fact that the provisions of Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) has been interpreted to take within its sweep the term ''legal representative' and not dependent. A person would be legal representative/legal heirs even if he is not dependent on the deceased. A person may be dependent as also legal heir (legal representative). This distinction will have to be decided by us as for the death of one of deceased, the Tribunal has rejected the claim. Unfortunate part of this litigation is that the legal heirs, i.e, aged mother and mother-in-law of the deceased, two minor children and one adolescent sister were advised to file one claim petition for death of four people. These aspects will have to be looked into as though it may appear very simple but there is complexity weaved into this litigation. The question is could the Tribunal dismiss the claim petition if separate claim petitions were filed for four deaths by legal representative whether they were dependent or not. Thus, we have to decide two issues compensation awarded and liability based on negligence.

4. Facts in brevity as per claim petition are that on 13.6.2004 at about 5.30 am Ram Dular Dubey, Pravin @ Pintu Dubey, Vidyawati Devi and Manju Devi boarding in Maruti Van bearing Registration No. UP 65 Y 4968 were going to offer prayers to Vindhyavasini Devi and when they reached near Village Khodhwa, P.S. Mirzamurad, driver of truck bearing Registration No. UP 78 A N 0069 driving rashly and negligently came from the opposite side and dashed with the said maruti van on account of which Ram Dular Dubey and Pravin Kumar Dubey died on the spot while Vidyawati Devi and Manju Devi died during the treatment in Kabir Chaura Hospital. At the time of accident, age of deceased Ram Dular Dubey was about 47 years; age of deceased Smt. Vidyawati was about 45 years; deceased Pravin Dubey and Manju Dubey were aged about 25 years.

5. It is submitted by learned counsel for the appellants that though it was head on collusion it was due to rash and negligent driving of the driver of the truck in which four persons traveling in maruti van died leaving behind them mother of the deceased namely Ramwanti Devi (old widow lady), Pramod Kumar Dubey, second son of deceased (minor) and another minor son Sandip Kumar Dubey aged about 12 years and unmarried daughter of deceased being Anju Dubey aged about 20 years who were the legal representatives of all the four deceased . The tribunal found driver of the truck to be negligent and fixed liability of 75%. It is submitted that the Tribunal wrongly recorded contributory negligence of the driver of the maruti van to the tune of 25%. In fact no evidence was led in defense to prove contributory negligence.It is further submitted that at the time of accident, deceased Ram Dular Dubey was working on the post of Manager, Kashi Gramin Bank, Branch Lahartara and his income was RS 21,014.60 per mensem. Deceased Vidyawati was a skilled housewife whose income was assessed by the tribunal to be Rs.2,000/- per mensem. Approximate income deceased Pravin Kumar Dubey, who was said to have been selected for B.T.C. was assessed to be earning Rs.7,000/- per mensem. Income of deceased Manju Devi, who was pursuing Ph.D. was assessed to be Rs.12,000/- per mensem. It is submitted that the Tribunal wrongly assessed the income and awarded meagre amount which may be enhanced. It also did not grant any amount under the head of future prospects

6. As against this, learned counsel for the Insurance Company has submitted that the award does not require any interference. The Tribunal has not committed any error in not granting the future loss of income.It is further submitted that the tribunal has been liberal in considering the negligence as the impact and site plan would show that the van was driven rashly and negligently.

7. The Apex Court in Sudarsan Puhan Vs Jayanta K Mohanty and Another Etc. AIR2018 SC 4662 and U.P.S.R.T.C. Vs. Km Mamta and Others AIR2016 SCC 948, wherein it has been held that that all the issues raised will have to be decided. Having heard the learned counsels for the parties, issue of negligence and compensation will have to be considered from the perspective of the law laid down.

In view of the questions raised by the claimants, issue of negligence would have to be decided.

8. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply.

9. The principle of contributory negligence has been discussed time and again. A person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place.

10. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :

"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.

17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.

18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.

19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.

20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.

21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).

22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."

emphasis added

11. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:

"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :

"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.

7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."

This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.

What emerges from the aforesaid discussion is as follows :

7. (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

8. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

9. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

10. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."

emphasis added

12. The decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite and contributory negligence.

13. The judgments of Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and others decided on 05.08.2002 in Appeal (Civil) No. 5436 of 1994, (2) Raj Rani and others Vs. Oriental Insurance Company Limited and others decided on 06.05.2009 in Civil Appeal No. 33-3318 of 2009 (Arising out of SLP (C) Nos. 2792-27793 of 2008) and (3) Archit Saini Vs. Oriental Insurance Company Ltd. And others, 2018 ) AIR (SC) 1143, will also permit us to revaluate the percentage of the negligence of the deceased. The Tribunal has held that the deceased too was negligent in driving the vehicle.

14. It is an admitted position of fact that two vehicles involved in accident, i.e., car and truck. Accident occurred at 5.30 a.m. which proved fatal to Ram Dulare and Pravin Kumar Dubey who succumbed to the injuries on the spot while Vidyawati and Manju Devi died during the treatment.

15. Factual data as culled out from the Judgment of the Tribunal goes to show that the Tribunal has given its reasoning on issue nos. 1 and 2. The driver and owner of the truck have not disputed the accident having taken place but they have come out with a new plea that the truck was stationary and Maruti car was being plied and coming from Varanasi at an exorbitant speed. Claimant Anju-PW1 was not an eye witness. The accident occurred at 5.30 a.m is also not in dispute. P.W. 2 Rakesh Kumar Upadhyay has been examined who has opined that he, Ram Dular Dubey, Pravin, Vidyawati and Manju Devi were in the car and were going to worship at the temple. The driver of the truck drove the vehicle rashly and negligently, first dashed one Indica car and then came and dashed maruti car on front side whereby death of Ram Dular and Pravin was caused. He was also injured as he was in the said vehicle and he was admitted in BHU under Dr. Lahri but he has not filed any claim petition. Unfortunately, police has not shown him as a witness. It is an admitted position of fact that the driver of the truck after filing reply did not step into the witness box. The learned Tribunal has held the driver of the truck negligent 75 per cent. Though the witnesses have conveyed that the truck dashed with Indica car after trying to overtake the Indica car. Unfortunately, as the site plan did not show from where Indica car was procured. The learned Judge observed at page 35 as under:-

"bu ifjfLFkfr;ksa esa tcfd vkeus lkeus ls lqcg ls 5-30 cts okgu tk jgs Fks rks ;fn ek:rh dkj pkyd Hkh lko/kkuh cjrrk rks Vªd dks tks bf.Mdk dkj ls cM+h xkM+h gS ;fn bf.Mdk dkj ds ihNs tk jgh Fkh rks ek:rh dkj pkyd dks nwj ls gh fn[k ldrh Fkh vkSj og lko/kkuh cjrdj dfFkr nq?kZVuk dks cpk ldrk Fkk^^

16. It is nobody's case, hence, we re-evaluate negligence at 10 per cent of the driver. Deceased Pravin was the driver of the car who is the brother of Anju. Pradeep Kumar and Sandeep Kumar, were children of Ram Dular Dubey and Ramvanti Devi aged about 65 years were the mother of Ram Dular Dubey who died in the accident. Therefore, as far as the claim of age of Ram Dular Dubey, the matter would be of a person who can be said to have not contributed the accident having taken place. The heirs of Vidyawati Devi would also be heirs of a non contributor. Vidyawati and Ram Dular Debey were husband and wife. Manju Devi was the widow of Pravin Dubey and appellants are claimants who are sister-in-law, brother-in-law, brother-in-law and grandmother-in-law. It would be a case of non contributor. Pravin if at all he is held liable for the accident, their compensation would stand depleted to that much extent as qua other three. It is a case of composite negligence.

17. The reasoning given by the Tribunal to hold the deceased negligent and that he had contributed to 25% of the accident is perverse, just because there was head on collusion of two vehicles. We hold that the driver of the maruti car was plying his car on the correct side but its impact was such that we hodl that he was negligent to the effect of 10 per cent.

18. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care. In this case the deceased were not the authors or the co-authors of the accident. On facts, the deceased was not plying the vehicle. Hence, the deduction of 25%from the compensation awarded to heirs of non tortfessors will have to be considerd on the basis of well settled legal principles governing contributory and composite negligence as both aspects are present in this vehicular accident The driver of the Truck did not appear before the Tribunal despite that the learned Tribunal has returned the finding that driver of van was also negligent.

Computation of compensation for death of four persons:-

19. Learned counsel for appellant has relied on the decision of the Apex Court titled as Montford Brothers of St. Gabriel and another Vs. United India Insurance and another, 2014 1 ACC 461 and on the judgment of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai to contend that legal representative is considered and not dependent and the learned counsel for respondent has relied on the decision of Apex Court in National Insurance Company Ltd. Vs. Birender and others, 2020 LawSuit (SC) 26, so as to contend that the dependents of the deceased, who has received benefits would not be entitled for the same. The learned counsel for the appellant has also relied on the said judgment.

20. Learned counsel for appellant has further relied on the authoritative pronouncements of this High Court in Oriental Insurance Company Ltd. Vs. Mangey Ram and others (Supra), Uttar Pradesh State Road Transport Corporation Vs. Tara Devi, 1995 LawSuit (All) 13, and Padma Devi Vs. .P. State Road Transport Corporation, 1988 LawSuit (All) 235, to contend that non grant of compensation except non pecuniary damages is against mandate of this Court.

21. We would place reliance on the decisions in Malarvizhi & Ors Vs. United India Insurance Company Limited and Another, 2020 (4) SCC 228 and United India Insurance Co. Ltd. Vs. Indiro0 Devi & Ors, 2018 (7) SCC 715. and in The Oriental Insurance Company Ltd. Vs. Mangey Ram and others, 2019 0 Supreme (All) 1067 and the recent judgment of the Apex Court in New India Assurance Company Vs. Urmila Shukla decided by the Apex Court on 6.8.2021 reported in MANU/SCOR/24098/2021 and Kirti and others vs oriental insurance company ltd reported in 2021(1) TAC 1 for commputing the compensation payable to the heirs legal representative of all four deceased on what basis, the Tribunal has disregarded the income and cannot deduct the amounts as deducted by Tribunal as income would increase unless proved otherwise. The factors to be considered for evaluating quantum of compensation reads as follows:

i. To give present value, a reasonable deduction or reduction is required as lump sum amount is given at a stretch under the head of prospective economic loss.

ii. The tax element is also required to be considered as observed in the Gourley's case (1956 AC 185).

iii. The resultant impairment/death on the earning capacity of the claimant/deceased .iv. That the amount of interest is awarded also on the prospective loss of income. v. That the amount of compensation is not exemplary or punitive but is compensatory in nature .

22. Learned counsel for the appellants submitted with regard to the compensation on account of death of all four deceased and submitted as under:-

(a) As far as the deceased Ram Dular is concerned, the Tribunal considered income of the deceased Ram Dular to be Rs.15,000/-. Unfortunately, the Tribunal did not award any amount under the head of future loss of income. It deducted 1/3rd amount out of Rs.15,000/- which was considered to be his income. His salary certificate of 30.6.2004 and document 71/c go to show that his income was Rs.21,014/-. The Tribunal granted multiplier of only 10 and 6% rate of interest. Learned counsel for the appellant has contended that the income should be considered to be Rs.21,014/- as per the salary certificate paper no. 71C and at the most after all deductions it should be Rs.16,876/-.It is submitted that the deceased left behind him legal heirs four in number, i.e, two juvenile sons, one dauther and mother and, therefore, the personal expenses should be 1/4th and not 1/3rd. Age of the deceased was in the age bracket of 45 to 50 years, hence, multiplier applicable would be 13 and not 10 and even in the year of accident, the pecuniary damages to be awarded would be 1 lakh as both the parents are lost by the minors.

(b) As far as his wife late Vidyavati is concerned, she was a home maker and aged about 45 years at the time of accident. The Tribunal has considered her income to be Rs.15,000/- without granting any future loss of income. It deducted 1/3rd. Under the head of total loss of dependency it granted Rs.1,0000/-; for funeral expenses, it granted Rs.2,000/-

(c) For the death of Pravin Dubey, who has left behind his minor brothers has not considered his income not even notional income though he was expected to earn Rs.7,000 per month as he was selected as BTC teacher as per paper 46C. No amount except Rs.1,000 towards loss of love and affection and Rs.2,000/- for funeral expenses are granted.

(d) As far as late Manju Devi, who has left behind sister-in-law, two brother-in-law and grand mother-in-law, is concerned, the Tribunal has not granted any amount except Rs.2,000/- for funeral expenses holding that they are no dependents and, therefore, no amount under the other head has been granted by the Tribunal. Learned counsel for the appellant submitted that the Judgment of the Tribunal requires modification.

23. We have heard the learned counsels for the parties and considered the factual data far as compensation is concerned. Hence, we now propose to calculate the compensation payable to the legal heirs of the deceased,who were four in number and hence compensation will have to be recalculated in case of all four individually though the claimants could have filed different claim applications as there is no conflict of interest joint claim petition is held maintainable .

We consider the income of the deceased (A) Ram Dular to be Rs.17,000/- per mensem to which as the deceased was aged about 47 years at the time of accident, 30% has to be added under the head of future prospect. 1/4 th have to be deducted towards his personal expenses. Multiplier applicable to him is 13. We grant Rs.1,00,000/- under the head of non-pecuniary damages.

Hence, the total compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) for death of Ram Dular Dubey is computed herein below:

i. Income Rs.17,000/- p.m.

ii. Percentage towards future prospects : Rs.5,100/-

iii. Total income : Rs.17,000+Rs.5,100= Rs.22,100/-

iv. Income after deduction of 1/4th towards personal expenses : Rs.16,575/-

v. Annual income : Rs.16,575 x 12 = Rs.1,98,900

vi. Multiplier applicable : 13

vii. Loss of dependency: Rs.1,98,900 x 13= Rs.25,85,700/-

viii. Amount under non pecuniary heads : Rs.1,00,000/-

ix. Total compensation: Rs.26,85,700/-

We consider the monthly income of the deceased (B) Vidyavati to be Rs.2,000/- to which as the deceased was aged about 45 years, 25% has to be added under the head of future prospect as she was home maker. 1/3rd is required to be deducted. Multiplier applicable to her is 14. We grant Rs.70,000/- under the head of non-pecuniary damages.

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

i. Income Rs.2000/- p.m.

ii. Percentage towards future prospects : Rs.500/-

iii. Total income : Rs.2000+Rs.500= Rs.2,500/-

iv. Income after deduction of 1/3rd towards personal expenses : Rs.1,666/- (rounded figure)

v. Annual income : Rs.1,666 x 12 = Rs.19,992

vi. Multiplier applicable : 14

vii. Loss of dependency: Rs.19,992 x 14= Rs.2,79,888/-

viii. Amount under non pecuniary heads : Rs.70,000/-

ix. Total compensation: Rs.3,49,888/-

We consider the monthly notional income of the deceased (C) Pravin Dubey to be Rs.2,000/- to which as the deceased was aged about 25 years, 40% has to be added under the head of future prospect. As he was not a bachelor but had a wife namely Manju Devi, 1/3rd is required to be deducted. Multiplier applicable to her is 18. We grant Rs.70,000/- under the head of non-pecuniary damages.

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

i. Income Rs.2000/- p.m.

ii. Percentage towards future prospects : Rs.800/-

iii. Total income : Rs.2000+Rs.800= Rs.2,800/-

iv. Income after deduction of 1/3rd towards personal expenses : Rs.1,866/- (rounded figure)

v. Annual income : Rs.1,866 x 12 = Rs.22,392/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.22,392 x 18= Rs.4,03,056/-

viii. Amount under non pecuniary heads : Rs.70,000/-

ix. Total compensation: Rs.4,73,056/-

We consider the monthly notional income of the deceased (D) Manju Devi to be Rs.2,000/- to which as the deceased was aged about 25 years, 40% has to be added under the head of future prospect. 1/3rd is required to be deducted. Multiplier applicable to her is 18. We grant Rs.70,000/- under the head of non-pecuniary damages.

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

i. Income Rs.2000/- p.m.

ii. Percentage towards future prospects : Rs.800/-

iii. Total income : Rs.2000+Rs.800= Rs.2,800/-

iv. Income after deduction of 1/3rd towards personal expenses : Rs.1,866/- (rounded figure)

v. Annual income : Rs.1,866 x 12 = Rs.22,392/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.22,392 x 18= Rs.4,03,056/-

viii. Amount under non pecuniary heads : Rs.70,000/-

ix. Total compensation: Rs.4,73,056/-

Hence, the total compensation to the claimants for the death of four persons would be Rs.39,81,700/-.

24. 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."

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

26. 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 further order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers and must by now attained majority the tribunal shall follow the directions .

27. 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 each 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 exceed Rs.50,000/- in any financial year, registry of the Tribunal is directed to allow the claimants 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.The insurance company shall follow the said direction and shall not deduct flat TDS without considering the proportionate share of each claimant individually .

28. 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 award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

29. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein.

30. It is hoped that 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 apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

Order Date :-2.9.2021

Ram Murti