Smt. Nirmala Rai And Others vs M/S. Nirmala Agro Mill Ltd. And ...
2021 Latest Caselaw 11058 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- FIRST APPEAL FROM ORDER No. - 1956 of 2002
 
Appellant :- Smt. Nirmala Rai And Others
 
Respondent :- M/S. Nirmala Agro Mill Ltd. And Others
 
Counsel for Appellant :- Ram Singh
 
Counsel for Respondent :- Arvind Kumar,B.B. Jauhari
 
With
 
Case :- FIRST APPEAL FROM ORDER No. - 1856 of 2002
 

 
Appellant :- Smt. Prema Devi & Others
 
Respondent :- M/S. Oswal Agro Mill Ltd. & Others
 
Counsel for Appellant :- Ram Singh
 
Counsel for Respondent :- Arvind Kumar,M.C. Chaturvedi
 
With
 
Case :- FIRST APPEAL FROM ORDER No. - 1854 of 2002
 

 
Appellant :- Shahjahan Begum & Others
 
Respondent :- M/S. Oswal Agrol Mills Pvt. & Others
 
Counsel for Appellant :- Ram Singh, Amit Kumar Sinha
 
Counsel for Respondent :- Arbind Kumar,G.K. Pandey
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Vivek Varma,J.

1. Since similar questions of fact and law are involved in the present appeals, therefore, they are being heard and decided by common judgment.

2. Heard Sri Ram Singh, learned counsel for the appellants, Sri Saurabh Srivastava, learned counsel for the respondent no. 3, United India Insurance Company Limited, insurer of truck, learned Standing Counsel for the State respondent, Sri B.B. Jauhari, learned counsel for the owner of the truck, Sri Ajay Kumar, learned Standing Counsel in FAFO No. 1854 of 2002 and Sri S.K. Mehrotra, learned Standing Counsel in FAFO No. 1856 of 2002.

3. The present appeals have been filed by the claimants against judgment and award dated 28.05.2002 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.10, Allahabad, (in short " the Tribunal") in Claim Petitions No. 347 of 1997, 399 of 1997 and 346 of 1997.

4. Brief facts giving rise to the present appeals are that on 22.01.1997 at about 09.00 AM Bashistha Narain Rai, who at the relevant time was posted as Deputy Director in Agriculture Department, Lucknow, along with Imtiyaz Ali, who was posted as Accountant in Agriculture Department, Lucknow, were going to Lucknow from Allahabad by government jeep no. UP 70/B 2416 driven by Shiv Prasad driver. Said jeep head on collided with truck no. UP 27/5513, which was coming from Raibaraeli side near village Arkha, Unchahar. On account of which the driver of jeep Shiv Prasad and Imtiyaz Ali died on the spot while Bashistha Narain Rai received serious injuries. He was treated at PHC, Unchahar, thereafter, he was referred to SGPGI, Lucknow, where he died during the course of medical treatment.

5. The claim petition no. 347 of 1997 has been filed by the legal representatives/dependents of deceased Bashishtha Narain Rai, claim petition no. 399 of 1997 has been filed by the legal representatives/dependents of Shiv Prasad and claim petition no. 346 of 1997 has been filed by the legal representatives/depedents of Imtiyaz Ali.

6. At this stage it is pertinent to state here that against the award dated 28.05.2002 passed by the Tribunal in claim petition no. 346 of 1997 and 347 of 1997, the State of U.P. preferred FAFO No. 1363 of 2015 (State of U.P. through Deputy Director of Agriculture, Allahabad Vs. Shahjhan Begum and others) and FAFO No. 1360 of 2015 (State of U.P. through Deputy Director of Agriculture, Allahabad Vs. Smt. Nirmala Rai and others) before this Court and both the appeals were dismissed on 28.08.2017 by following order:

"After going through the evidence on record and the arguments of the counsel for the parties, we find that the point put forward by the learned Standing Counsel in respect of entire negligence of the truck driver is not established from the record. The evidence on record goes to indicate that there was head on collision between both the vehicles. When there was head on collision, then evidence has to be appreciated. The evidence, which was led, goes to indicate that both the drivers were negligent. The Jeep in question was a Government vehicle. The charge sheet was submitted against the truck driver. It is therefore evident from the conduct of the Investigating Officer that he tried to give undue protection to the Government vehicle by not filing any charge sheet against the driver of the Jeep. The evidence has been led to the effect that the truck owner is responsible, but looking to the pleading of the parties and the site plan as well as the evidence on record, the Tribunal has come to the conclusion that drivers of both the vehicles were negligent and liability of 40% has been fixed upon the Government (owner of the jeep) whereas 60% liability has been fixed upon the owner of the truck. The argument of the learned Standing Counsel is that no such evidence is available on the record on the basis of which negligence of the driver of the Jeep can be fixed, but in view of the finding recorded by the Tribunal, we are not able to appreciate the aforesaid argument. The Tribunal is the first stage court which records the evidence and is also able to gather evidence from the parties; as to what evidence has been led and what decision should be taken, it is for the Tribunal to decide. The question of contributory negligence being a question of fact, we are not inclined to interfere with the aforesaid finding.

Therefore, both the appeals fail and they are accordingly dismissed."

7. Counsel for the parties submit that the order dated 28.08.2017 passed by this Court has attained finality. Thus, 40% negligence has been fastened upon Shiv Prasad, driver (deceased) of the jeep no. UP 70/B 2416.

8. Counsel for the appellants submits that the Tribunal vide separate judgment and order dated 28.05.2002 has not granted any amount to the claimants towards future loss of income of the deceased, which was required to be granted in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that the amount under non-pecuniary heads granted and the interest awarded by the tribunal are on lower side and requires enhancement.

9. 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 granting the compensation as awarded.

10. The accident is not in dispute. The issue of negligence decided by the Tribunal is also 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.

11. The submission that the Tribunal has not granted any amount towards future loss of income. Grant of future prospects will have to be traced back and reference can be had to the decision in General Manager, Kerala S.R.T.C., Trivandrum v. Susamma Thomas & Ors.,(1994) 2 SCC 176 wherein addition of future prospects was also calculated. The decision in Susamma Thomas (Supra) was referred in U.P.S.R.T.C. & Ors. v. Trilok Chandra & Ors.(1996) 4 SCC 362 which have been considered by the Apex Court in Sarla Dixit Versus Balwant Yadav AIR 1996 SC 1274 and the Apex Court has considered decision in Hardeo Kaur V/s. Rajasthan State Transport Corporation, 1992 2 SCC 567. The decision in Sarla Dixit has been considered to be good law in (1) Puttamma Vs. K.L.Narayana Reddy, AIR 2014 SC 706 (2) Raman Vs. Uttar Haryana Bijli Vitran Nigam Limited, Bijoy Kumar Dugar Vs. Bidyadhar Dutta, 2006 (3) SCC 242 : (3) Sarla Verma (supra)(4)R.K.Malik Vs. Kiran Pal, AIR 2009 SC 2506 (5)National Insurance Company Limited Vs. Pranay Sethi, AIR 2017 SC 5157 Raj Rani Vs. Oriental Insurance Company Limited, 2009 (13) SCC 654. We have gone through the decisions in those days referred to herein above and the judgment of Gujarat high court in Ritaben alias Vanitaben Wd/o. Dipakbhai Hariram and Anr. v/s.Ahmedabad Municipal Transport Service & Anr., 1998 (2) G.L.H. 670, wherein, the Court has observed as under:

"para-7: It is settled proposition of that the main anxiety of the Tribunal in such case should be to see that the heirs and legal representatives of the deceased are placed, as far as possible, in the same financial position, as they would have been, had there been no accident. It is therefore, an action based on the doctrine of compensation.

para-8: It may also be mentioned that perfect determination of compensation in such tortuous liability is, hardly, obtainable. However, the Tribunal is required to take an overall view of the facts and the relevant circumstances together with the relevant proposition of law and is obliged to award an amount of compensation which is just and reasonable in the circumstances of the case.

para-10: Even in absence of any other evidence an able bodied young man of 25 years, otherwise also presumed to earn an amount of Rs.1000/- or more per month, on that basis the prospective income could be calculated by doubling the one prevalent on the date of the accident, which is required be divided by half, so as to reach the correct datum figure which is required to be multiplied by appropriate multiplier. Even taking a conservative view in the matter, the deceased would be earning not less than an amount of Rs.1000/- per month and considering the prospective average income of Rs.2000/- and divided by half, would, obviously come to Rs.1500/."

12. Thus even in year 1990 to 2000, the addition of future prospects was not ruled out. Just because tribunals in Uttar Pradesh were not granting future loss, it cannot hold field where the decision of Apex Court is otherwise as demonstrated with decision though of persuasive value of Gujarat High Court referred herein above, therefore, the submission of learned counsel for the respondent that no amount under the head of future loss of income was admissible in those days, will have to be considered. The decision of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021 SC 359 will have to be looked into. Therefore, we will have to consider the same in the light of the recent decisions as well as the decisions of the Apex Court prevailing.

13. In Malarvizhi & Ors Vs. United India Insurance Company Limited and Another, 2020 (4) SCC 228, it has been held that Income Tax is the mirror of one's income unless proved otherwise, Even in the earlier days, the factors to be considered for issuing 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 capcity of the claimant/claimants .

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.

14. Heard learned counsels for the parties and considered the factual data and following the decision of Apex Court in Pranay Sethi (Supra) and the latest judgment of Apex Court in the matter of Urmila Shukla (Supra), the total compensation payable to the appellants in each of the appeals are computed herein below:

First Appeal No. 1956 of 2002

This Court found that the Tribunal has assessed the income of the deceased to be Rs. 11,950/- per month. To which as the deceased was aged about 42 years, hence 30% of the income has to be added under the head of future prospects. As far as deduction towards personal expenses of the deceased is concerned, it should be ¼ as the deceased had six persons to feed. Hence total compensation payable to the appellant is computed herein below:

i. Income Rs. 11,950/-

ii. Percentage towards future prospects : 30% namely Rs. 3585/-

iii. Total income : Rs. 11,950 + 3585 = Rs. 15,535/-

iv. Income after deduction of 1/4th : Rs. 11,651/-

v. Annual income : Rs. 11,651 x 12 = Rs. 1,39,812/-

vi. Multiplier applicable : 14 (as the deceased was in the age bracket of 41-45 years)

vii. Loss of dependency: Rs. 1,39,812 x 14 = Rs. 19,57,368/-

viii. Amount under non pecuniary heads : Rs.70,000/- + 10% rise every three years rounded as Rs. 1,00,000/-

ix. Total compensation : Rs. 20,57,368/-

First Appeal No. 1856 of 2002

This Court found that the Tribunal has assessed the income of the deceased to be Rs. 4100/- per month. To which as the deceased was aged about 46 years, hence 30% of the income has to be added under the head of future prospects. As far as deduction towards personal expenses of the deceased is concerned, it should be ¼ as the deceased had four persons to feed. Further 40% of contributory negligence is to deduct from the total compensation. Hence total compensation payable to the appellant is computed herein below:

i. Income Rs. 4100/-

ii. Percentage towards future prospects : 30% namely Rs. 1230/-

iii. Total income : Rs. 4100 + 1230 = Rs. 5330/-

iv. Income after deduction of 1/4th : Rs. 3998/-

v. Annual income : Rs. 3998 x 12 = Rs. 47,976/-

vi. Multiplier applicable : 13 (as the deceased was in the age bracket of 46-50 years)

vii. Loss of dependency: Rs. 47976 x 13 = Rs. 6,23,688/-

viii. Amount under non pecuniary heads : Rs.70,000/- + 10% rise every three years rounded as Rs. 1,00,000/-

ix. Total compensation : Rs. 6,23,688/- + 1,00,000/- = Rs. 7,23,688/-

x. Deduction of amount of contributory negligence: 40% = Rs. 2,89,475/-

xi. Amount payable to the claimants: Rs. 7,23,688/- - Rs. 2,89,475/- = Rs. 4,34,213/-

First Appeal No. 1854 of 2002

This Court found that the Tribunal has assessed the income of the deceased to be Rs. 6700/- per month. To which as the deceased was aged about 53 years, hence 20% of the income has to be added under the head of future prospects. As far as deduction towards personal expenses of the deceased is concerned, it should be ¼ as the deceased had five persons to feed. Hence total compensation payable to the appellant is computed herein below:

i. Income Rs. 6700/-

ii. Percentage towards future prospects : 15% namely Rs. 1005/-

iii. Total income : Rs. 6700 + 1005 = Rs. 7705/-

iv. Income after deduction of 1/4th : Rs. 5778/-

v. Annual income : Rs. 5778 x 12 = Rs. 69,336/-

vi. Multiplier applicable : 11 (as the deceased was in the age bracket of 51-55 years)

vii. Loss of dependency: Rs. 69,336 x 11 = Rs. 7,62,696/-

viii. Amount under non pecuniary heads : Rs.70,000/- + 10% rise every three years rounded as Rs. 1,00,000/-

ix. Total compensation : Rs. 7,62,696/- + 1,00,000/- = Rs. 8,62,696/-

12. 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."

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

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 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.

17. 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 restic villagers.

18. 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.

19. Fresh Award be drawn accordingly as per modification made herein.

Order Date :- 6th , September, 2021

Ashish