Smt.Raj Mala And Others vs Sri Surendra Kapoor And Another
2022 Latest Caselaw 1324 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 2
 
Case :- FIRST APPEAL FROM ORDER No. - 1466 of 2021
 
Appellant :- Smt.Raj Mala And Others
 
Respondent :- Sri Surendra Kapoor And Another
 
Counsel for Appellant :- Brij Raj Singh
 
Counsel for Respondent :- Vipul Kumar, ,Siddharth Jaiswal
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral : Dr. Kaushal Jayendra Thaker, J.)

1. Heard Sri Amit Kumar Singh, learned counsel for the appellants and Sri Siddharth Jaiswal, learned counsel for respondent-Insurance Company.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 14.12.2009 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.16, Agra (hereinafter referred to as 'Tribunal') in Claim Petition No.563 of 2008 awarding a sum of Rs.3,69,500/- as compensation with interest at the rate of 6% from date of filing of the claim petition.

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is also not in dispute. The only issue to be decided is the quantum of compensation awarded.

4. The accident took place on 6.5.2008. The deceased, as per the claimants, was 33 years of age at the time of accident but the Tribunal has considered his age to be 40 to 45 years. The Tribunal considered his income to be Rs.3,000/- per month, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 15, awarded Rs.9,500/- towards non pecuniary damages and has calculated the total compensation to be Rs.3,69,500/-

5. It is submitted by learned counsel for the appellants that the deceased was earning Rs.12,000/- per month as Plant Operator in PNC Construction Company Ltd. Agra, however, the Tribunal has assessed his income to be Rs.3,000/- which is bad and it should be 12,000/- per month. It is further submitted that the Tribunal has not granted any amount towards future loss of income which should be granted in view of the decision of the Apex Court National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093.

6. It is submitted by learned counsel for the appellants that the deceased was 33 years of age at the time of accident but the Tribunal has considered his age to be 40 years and granted multiplier of 15 which is bad and the multiplier should be 16 in view of the decision in Sarla Verma and others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC).

7. It is lastly submitted by learned counsel for the appellants that the amount under non pecuniary heads and the interest awarded by the Tribunal are on the lower side and are required to be enhanced.

8. Per contra, learned counsel for respondent-Insurance Company has submitted that the income of the deceased as considered by the Tribunal is just and proper as income which was claimed was not proved by oral and documentary evidence. It is further submitted that the age of the deceased has rightly been considered as the documentary proof filed in this regard was not certified and the post-mortem report showed his age to be 40 years, therefore, the same has been considered by the Tribunal. Hence, multiplier of 15 granted by the Tribunal is just and proper is the submission of learned counsel for the respondent.

10. Heard learned counsel for the parties and perused the record. The Tribunal has considered the income of the deceased to be Rs.3,000/- which is nothing else but perversity shown by the Tribunal in such a beneficial piece of legislation. The learned Tribunal has disbelieved the evidence of P.W.3 and the documentary evidence at page 41 G which is the order of deployment of staff dated 18.1.2006. The deceased was appointed as plant operator and his monthly salary was Rs.7,500/-. There cannot be any doubt once documents are produced and proved by the authority concerned who have appointed the deceased and where he was serving. In the documentary evidence at page 24 G dated 30.6.2008, it has been specifically mentioned that his last drawn salary was Rs.12,000/- per month and, therefore, we are unable to accept the submission of Sri Jaiswal that the Tribunal was right in returning the finding on income holding that claimant did not produce any document to show that his income was Rs.12,000/-.As there was no record of the increment which were given, the Tribunal has not accepted the version of P.W.3. P.W.2 and P.W.1 have corroborated each other. The Tribunal has fallen in error in not considering the salary certificate as well as the evidence led before it, as narrated herein above. The Tribunal has misinterpreted the decision of the Apex Court in A.P.S.R.T.C. and others v. M. Ramadevi and others, 2008 (1) T.A.C. 714 SC. Principle for assessment of compensation go to show that reasonably accepted legal standard have to be adopted. In our case, the Tribunal has given a go-by to these principles and, therefore, we reiterate that just compensation would mean that the claimants are entitled to be compensated for loss suffered which would be the net salary received by the deceased when he was alive. The decision in National Insurance Co. Ltd. v. Indira Srivastava and others, (2008) 2 SCC 763 and in the case of Asha and others v. United India Insurance Co. Ltd. and another, (2008) 2 SCC 744 will come to the aid of the claimants.

11. In view of the above discussion, we consider the income of the deceased to be Rs.12,000/- per month.

12. The Tribunal has committed error in recording the age of the deceased. His Date of Birth was 1.7.1975 as recorded in School Leaving Certificate and the date of accident was 6.5.2008 which shows that on the date of accident, he was 33 years of age and, therefore, we are unable to subscribe to the submission of learned counsel for the respondent that age of 40 years considered by the Tribunal is just and proper. The deceased is considered to be 33 years of age at the time of accident, hence, 40% should be added towards future loss of income of the deceased. Multiplier of 16 is granted as the deceased was in the age bracket of 31 to 35. The deceased has left behind him, four minor children and his widow. The deceased-father would be spending 1/4th upon him when he has such a huge family to maintain. Hence, the deduction towards personal expenses would be 1/4th. The Tribunal has erred in not considering the decision in Sarla Verma (Supra), and has granted only Rs.9,500/- towards non-pecuniary damages. We, therefore, grant Rs.70,000/- under the non pecuniary heads and Rs.50,000/- each to the minor children who have lost their father at prime age. Hence, the total compensation payable to the appellants is computed herein below:

i. Monthly Income: Rs.12,000/-

ii. Percentage towards future prospects : 40% namely Rs.4800/-

iii. Total income : Rs.12,000 + 4800 = Rs.16,800/-

iv. Income after deduction of 1/4th towards personal expenses : Rs.12,600/-

v. Annual loss : Rs.12,600 x 12 = Rs.1,51,200/-

vi. Multiplier applicable : 16

vii. Loss of dependency: Rs.1,51,200 x 16 = Rs.24,19,200/-

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

ix. Amount granted to minor children towards loss of love and affection : Rs.50,000/- x 4 = 2,00,000/-

x. Total compensation : Rs.24,19,200 + Rs.70,000 + Rs.2,00,000/- = 26,89,200/-

13. The rate of interest also cannot be fathomed in the year 2009 when the repo rate was 9%. The claimants would be entitled to 7.5% rate of interest on the enhanced compensation. The rate of interest granted by the Tribunal on originally awarded amount is maintained.

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

15. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the additional amount within a period of 12 weeks from today with interest as directed above.

16. 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 rustic villagers.

17. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri 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.

18. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. 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 judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

19. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.

20. We request the learned Registrar General to forward a copy of this order to the concerned Judge who has passed the impugned order where he is posted and if he has retired from service then also it should be brought to his notice so that in future such mistake regarding assessment of income may not be committed if he is employed for some good post.

Order Date :- 25.4.2022

DKS