Raj Nand Jaiswal (Deceased) And ... vs New India Assurance Company Ltd. ...
2021 Latest Caselaw 11067 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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

 
Case :- FIRST APPEAL FROM ORDER No. - 269 of 2020
 

 
Appellant :- Raj Nand Jaiswal (Deceased) And Others
 
Respondent :- New India Assurance Company Ltd. And Others
 
Counsel for Appellant :- Siddharth,Manoj Kumar Singh
 
Counsel for Respondent :- Sushil Kumar Mehrotra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Shri Manoj Kumar Singh, learned counsel for the appellants; Shri Sushil Kumar Mehrotra, learned counsel for the respondents; and perused the record.

2. This appeal, at the behest of the claimants, challenges the judgment dated 17.7.1999 passed by Motor Accident Claims Tribunal/VIIth Additional District Judge/Additional District Judge, Muzaffarnagar (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.242 of 1997 awarding a sum of Rs.7,24,500/- with interest at the rate of 12% 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. The appeal is of the year 1999, the accident took place in the year 1996. In this appeal we are concerned with the litigation the legal representatives/heirs of late Suman Jaiswal during the pendency of this appeal, the father-in-law and mother-in-law, namely, grand father and grand mother of the minor daughter Km. Nainsi Jaiswal passed away. The recent judgment of the Apex Court has held that the compensation has to be computed when the cause of action accrued.

5. 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. The learned counsel submitted which proves that the income of the deceased was Rs.5000/- per month as she was a teacher. It is also submitted that as the deceased was survived by her daughter and parents and hence the deduction towards personal expenses of the deceased should be 1/3 and not 1/2.

6. The multiplier has to be as per the age of deceased. Learned counsel for the appellants has cited also relied on judgments of the Apex Court (i) Jitendra Khimshankar Trivedi and others v. Kasam Daud Kumbhar and others, (2015) 4 SCC 237.

7. 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 as the father-in-law and mother-in-law were not dependent on the deceased.

8. Having heard the learned counsel for the parties and considered the factual data, it is undisputed that the accident occurred on 23.6.1996 causing death of Suman Jaiswal who was 38 years of age and left behind her, in-laws/grandparents of one minor daughter (now major). The Tribunal has assessed the income of the deceased to be Rs.1250/- per month and has granted notional income. It is submitted that the claimants were entitled to income as decided by the Apex Court in Jitendra Khimshankar Trivedi (Supra) and should have granted just and reasonable compensation. The decision of the Apex Court considered the accident of the year 1990 whereas in our case, the accident took place in the year 1996 and therefore, the income should have been at least Rs.5,000/- per month.

9. 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/."

10. 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 wherefore, the submission of Sri Shukla 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.

11. In Malarvizhi & Others and Indiro Devi & Others (Supra), 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.

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

i. Income Rs.3,000/- p.m.

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

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

iv. Income after deduction of 1/3 : Rs.2800/-

v. Annual income : Rs.2800 x 12 = Rs.33,600/-

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

vii. Loss of dependency: Rs.33,600 x 15 = Rs.5,04,000/-

viii. Amount under non pecuniary heads : Rs.40,000/- for minor child (now major)

ix. Total compensation : Rs.5,44,000/-.

13. It goes without saying that the interest as per the repo rates in the year 1996 and the interest payable would be 6%. We would go by the repo rate and not by Schedule and grant 6% interest as appeals have remained pending for no fault of the advocates. The rate of interest could remain same throughout. The matter is remain pending since the year 1999, it was also a defective appeal where there was delay for a period of 20 years. The matter remain pending on the defective file only in the year 2019, the appellant filed application for condonation of delay for deleting appellant nos. 1 and 2. The delay was condoned. Appeal was numbered in the year 2020 and, therefore, we feel that interest should be not granted but as it is the sole surviving the claimant was a minor, we grant interest at the rate of 6% as accepting the submission of the counsel for the respondent that even in the year 1996, the rate of interest was not 12%, hence his oral submission is accepted. On the awarded amount from the date of filing of the claim petition till the amount is deposited flate rate of 6% would be admissible.

14. 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 applicant /claimant is neither illiterate nor rustic villager.

15. 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.

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 9% from the date of filing of the claim petition till the amount is deposited and 6% thereafter as the appeal remain pending for no fault of either of the parties. The amount already deposited be deducted from the amount to be deposited.

17. As far as claimant Nos.2 and 3 are concerned, namely grand-father and grand-mother have passed away and hence, the amount be disbursed to the daughter (legal representative of deceased) who by now must have attained majority.

18. This Court is thankful to both the counsels to see that the matter is disposed of.

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

Order Date :- 7.9.2021

A.N. Mishra