Smt. Anita Sinha And Others vs Sri Prakash Dixit And Others
2021 Latest Caselaw 11093 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37                                                                                 A.F.R.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 795 of 2011
 

 
Appellant :- Smt. Anita Sinha And Others
 
Respondent :- Sri Prakash Dixit And Others
 
Counsel for Appellant :- D.K. Tiwari
 
Counsel for Respondent :- Amaresh Sinha
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard learned counsel for the parties and perused the judgment and order impugned.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 18.11.2010 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.10, Allahabad (hereinafter referred to as 'Tribunal') in M.A.C.T. Case No. 602 of 2008.

3. Brief facts necessary for our purpose, which relates to the litigation are that the accident occurred on 02.12.2007 at about 6.00 PM when the driver of the Truck drove the truck rashly and negligently and dashed the Maruti Car driven by the deceased, whereby the deceased was plying his car and going from Lucknow to Gorakhpur and the deceased died due to accidental injuries is not in dispute. The involvement of the truck is also not in dispute. The Insurance Company did not prove that there was any breach of policy conditions and they were directed to indemnify the legal heirs of the deceased. The owner and driver of the truck have absented themselves and have not entered into witness box. The respondents (owner and driver) filed written statement, which is one of denial. The Insurance Company also filed its reply one of denial and there is breach of policy conditions. The Tribunal framed four issues and held that as the charge-sheet was laid against the driver of the truck and as such post mortem showed that the injuries were sufficient to cause death, therefore, the Tribunal case to the conclusion that the death occurred due to accidental injuries. The Tribunal held that the driver of the truck was the sole author of the accident. The issue nos. 2 and 3 were also decided against the respondents. It is only the finding of facts of issue no.4, which has aggrieved the appellants herein. The deceased was 47 years of age as believed by the Tribunal. The deceased was working with Uptron India Limited as an officer and was also into the consultancy work. The Tribunal, according to the learned counsel for the appellant, did not consider the income of consultancy as no certificate was produced. The Tribunal, according to the counsel, considered the salary Rs. 75816/- per annum and granted multiplier of 13 and deducted 1/3 as personal expenses and added Rs. 9500/- as non pecuniary damages. It is admitted position that no amount was granted under the head of future loss of income despite the fact that ITR return showed that the deceased was earning Rs. 1,67,855/- which is bad.

4. Learned counsel for the appellants has submitted that in recent judgment of Apex Court in Smt. Sangita Arya and others Vs. Oriental Insurance Company Limited and others 2020 5 SCC 327, the income of the deceased has to be considered as per income tax return. It is apparent on the face of record that income was not considered on the ground that no certificate was produced. However, basic salary had to be computed along with other emoluments, which the deceased was receiving as per the judgment of Apex Court in Vimal Kanwar and others Vs. Kishore Dan and others AIR 2013 SC 3830. We cannot concur that the Tribunal had considered the income of the deceased at Rs. 75,816/- per annum in the year of accident and the date of judgment pronounced the principle of grant of future loss of income was invoked, therefore, as per judgment of National Insurance Company Limited Vs. Pranay Sethi and others (2017) 16 SCC 680 as he was aged about 45 years, 30% would be admissible out of which 1/3 would be deducted as he was survived by wife and minor son. The multiplier would also be 14, not 13 as granted by the Tribunal, as per judgment of Sarla Verma and others Vs. Delhi Transport Corporation and another (2009) 6 SCC 121. The non pecuniary damages would be Rs. 70,000/- + Rs. 30,000/- with interest of 7.5%.

5. We have perused the income tax return verification form for the assessment year 2008-09. It appears that the Tribunal has committed an error as it has not considered the income from other sources in column V and therefore, there being error apparent on this is corrected by us. The income tax return are the mirror of income of the deceased and therefore, same has to be considered.

6. We are unable to accept the submission of Anubhav Sinha, Advocate holding brief of Sri Amresh Sinha, learned counsel for the respondent that the tribunal has rightly considered the rational income and that the multiplier is just and proper as he was self employed person no question for grant of future prospects.

7. Submission that the deceased to be considered in the age bracket of 45-47 cannot be accepted that record shows that he was 45 years of age. Post mortem report also shows that the age of the deceased was 45 years.

8. The Tribunal has discarded the allowances from the income with the observation that it would be only payable if the deceased was alive, this aspect and this fact has been erroneously recorded so as to discard the income as reflected in the income tax return of the year 2008-09.

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. Annual Income:- 1,67,855/-

ii. Percentage towards future prospects : 30% (Rs. 50,356/-)

iii. Total income : Rs. 2,18,211/-

iv. Income after deduction of 1/3rd : Rs. 1,45,474/-

v. Multiplier applicable : 14

vi. Loss of dependency: Rs. 1,45,474 x 14 = Rs. 20,36,633/-

vii. Amount under filial consortium and other non pecuniary heads : Rs. 70,000/-

viii. Total compensation : Rs. 21,06,636/-

10. 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."

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

12. 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 amount be deposited by the respondent-Insurance Company within a period of 12 weeks from today with interest at the rate of 7.5%. The amount already deposited be deducted from the amount to be deposited.

13. In view of the ratio laid down by Hon'ble Gujarat High Court in case of Smt. Hansagori P. Ladhani Vs. The Oriental Insurance Company Ltd., reported in 2007 (2) GLH 291, the total amount of interest, accrued on the principle 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 At, 1961 and if the amount of interest does not exceeds Rs. 50,000/- in any financial year, registry of the 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 Vs. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.03.2021 while disbursing the amount.

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 Vs. Venugopal reported in 2012 (1) GLH (SC) 442, the order of investment is not passed because respondents are neither illiterate nor rustic villagers.

15. This Court is thankful to both the counsels for getting this matter disposed of.

Order Date :- 15.9.2021

AK Pandey