Smt. Pinki And 3 Others vs Himanshu Kumar And Another
2021 Latest Caselaw 11096 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 

 

 
Court No. - 37
 
Case :- FIRST APPEAL FROM ORDER No. - 1169 of 2020
 
Appellant :- Smt. Pinki And 3 Others
 
Respondent :- Himanshu Kumar And Another
 
Counsel for Appellant :- Nigamendra Shukla,
 
Counsel for Respondents:- Aditya Singh Parihar
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Sri Nigamendra Shukla, learned counsel for the appellant and Shri Aditya Singh Parihar, learned counsel for the respondent-Insurance Company.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 01.02.2020 passed by Motor Accident Claims Tribunal/Additional District Judge (F.TC.), Bulandshahar (hereinafter referred to as 'Tribunal') in M.A.C. No. 327 of 2014.

3. Brief facts as culled out from the record are that on 22.07.2014 at around 2:30 p.m deceased Arvind Kumar was on his way to his office by his motor-cycle bearing no. U.P-13AQ-2367, when he reached near P-3 Gol Chakkar, Noida, Gautambudhnagar in front of C & C Factory a Bolero bearing no. UP-17T-6826 driven rashly, negligently by his driver from either side dashed into the motor-cycle of deceased Arvind Kumar as a result of which he sustained grievous and fatal injuries and was admitted to Yatharth Hospital, Greater Noida where he succumbed to his injuries.

4. The deceased was 34 years of age at the time of accident. He was working as a technician in Shivam Infocom Pvt. Ltd. He was survived by his father, mother, wife and two minor children. The Tribunal has considered his income to be Rs. 4,500/-p.m, deducted 1/4th towards personal expenses of the deceased, granted multiplier of 16, granted Rs.40,000/- towards compensation for loss of consortium, granted Rs,. 15,000/- for compensation for loss of estate, granted Rs. 15,000/- towards funeral expenses and ultimately assessed the total compensation to be Rs.9,77,000/-.

5. Learned counsel for the appellant has submitted that the deceased Himanshu Nagaria was 34 years, working as technician in Shivam Infocom Pvt. Ltd and was earning Rs. 12,460/- p.m. The learned counsel for the appellant contends that he was below the age of 40 years, the tribunal should have added 50% to his income but the tribunal had added only 40% to his income. It is submitted by him that amount of non pecuniary of Rs. 70,000/- requires to be enhanced.

6. As against this, Shri Aditya Singh Parihar, learned counsel for the respondent-insurance Company contends that deduction of 1/4rd from personal expenses is not just and proper, it should be 1/3nd. As far as rate of interest is concerned it is further submitted that interest granted by the Tribunal is 6% is just and proper.

7. Having heard the learned counsel for the parties, income considered by tribunal of deceased is Rs. 4,500/- per month on the basis that the documentary evidence produced did not inspire confidence of the Tribunal. The deceased was employed in Shivam Infocom Pvt. Ltd. where he had taken training much prior to his appointment as technician. The tribunal relied on decision of Lakshmi Dharnayak and Others Vs. Jugal Kishore Behera and Others 20108 (1) TAC (SC), Sarla Verma Vs. DTC 2009 (6) SCC 121 and National Insurance Company Ltd. Vs. Pranya Sethi 2017 (13) SCALE and discarded the evidence produced before it. The Tribunal has committed error is the submission of appellant which is vehemently objected by Shri Aditya Singh Parihar, learned counsel for the respondent-Insurance Company. It is contended by Shri Aditya Singh Parihar, learned counsel for the respondent-Insurance Company that deceased was in private employment, therefore, future prospects added at 40 % of income is just and proper. It is further submitted that now this Court is hearing this appeal under Section 173 M.V. Act, Order 43 Rule 7 C.P.C, his oral objections may be considered. He further contends that father cannot be considered to be dependent on his son as he would have his own income and two minor children is alone would be dependent along with widow. Let us consider the negligence from the perspective of the law laid down as is is orally submitted by Shri Aditiya Singh Parihar, learned counsel for the respondent-Insurance Company that deceased was also negligent.

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 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.

12. The latest decision of the Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 Law Suit (SC) 469 has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. 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 was not the author or the co-author of the accident. The finding of fact regarding non negligence of the deceased cannot be fault with. The Insurance Company now the owner of the vehicle entered the witness box. The deceased died ot of the injuries which was caused to him. Evidence of P.W-3 and P.W.-4 corroborates each other. P.W.-3 has deposed that deceased was on the correct side when the Bolero came and dashed with him and he has taken the deceased to the hospital. The tribunal has relied on decision of Smt. Indira Pathak Vs. Additional District Judge-2, Allahabad and others, 1989 A.W.C. 281. The oral prayer of ld. Counsel for Insurance Company that deduction of 50% from the compensation be made is rejected.

13. This takes this Court to the compensation awarded. We would place reliance on the Apex court decision 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 1It could not be culled out from record that on what basis, the Tribunal has deducted the pecuniary benefits from the income of a salaried person cannot be fathomed. The Tribunal did not rely on the appointment letter of the deceased which was produced at 51C2/2. The Tribunal did not believe it because the document showed that it was given on 25.04.2014 at 9:30 a.m. The Tribunal did not believe the testimony as the name of Shivam Infocom Pvt. Ltd. and there was some discrepancy. The Tribunal therefore, discarded this document which it could not have done in view of the decision of the Apex Court in Anita Sharma's (Supra). Hence, fixing notional income of the deceased was bad when he was a salaried person. The income of the deceased in the year of accident and looking to his vocation can be considered to be Rs.10,000/- per month as the deceased is below 40 years, 50% as future loss of income requires to be added in view of the decision of the Apex Court in Pranay Sethi (Supra). As far as amount under the head of non-pecuniary damages are concerned, it should be Rs.70,000/- + 10% increase as per the decision of the Apex Court in Pranay Sethi (Supra) as three years have elapsed hence, the lump sum amount under this head would be Rs.1,00,000/-. As far as multiplier is concerned, it is 16.

14. Hence, the total compensation payable to the appellants is computed herein below:

i. Income= Rs.10,000/-

ii. Percentage towards future prospects : (50%) Rs.5000/-

iii.Total income : Rs. 10,000 + 5,000= Rs.15,000/-

iv. Income after deduction of 1/3 : Rs. 10,000/-

v. Annual income : Rs. 10,000 x 12 = Rs.1,20,000/-

vi. Multiplier applicable : 16

vii. Loss of dependency: Rs.1,20,000 x 16 = Rs.19,20,000/-

viii. Amount under non-pecuniary head= 70,000/-Plus Rs 30,000/as per pranay sethi (supra) = 1,00,000/-

ix. Total compensation :RS: 20,20,000/-

15. 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."

16. In view of the above, the appeal is partly allowed. Oral cross objections is allowed as far as certain calculation is concerned and compensation is recalculated. Judgment and award 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 the amount is deposited. The amount already deposited be deducted from the amount to be deposited. The Insurance Company will deposit the entire amount.

17. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in , 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) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.

18. Record be sent back to tribunal forthwith.

19. This Court is thankful to both the learned Advocates for getting this matter disposed of during this pandemic.

Order Date :- 16.9.2021/PS