Smt. Shyama Mishra And 4 Ors. vs Niket Kumar Driver And 3 Ors.
2022 Latest Caselaw 1794 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved On : 20.4.2022
 
Delivered On :29.4.2022
 
Court No. - 2
 
Case :- FIRST APPEAL FROM ORDER No. - 272 of 2022
 

 
Appellant :- Smt. Shyama Mishra And 4 Ors.
 
Respondent :- Niket Kumar Driver And 3 Ors.
 
Counsel for Appellant :- Anju Shukla,Nigamendra Shukla
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Judgment Per Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. Heard Sri Nigamendra Shukla, learned counsel for the appellant, Sri Santosh Kumar Singh, learned counsel for the respondent and perused the judgment and order impugned.

2. This appeal, at the behest of the claimants, challenges the judgment and ward dated 29.8.2012 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No.9, Bulandshahar (hereinafter referred to as 'Tribunal') in M.A.C.No.203 of 2004 awarding a sum of Rs.27,06,000/- with interest at the rate of 6% as compensation.

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The learned counsel appearing on behalf of State has not challenged the liability imposed on them. The issue to be decided by this Court is the quantum of compensation awarded and whether the same requires any modification.

4. Brief facts of the present case are that on 29.12.2002 while he was on the way to Sikandarabad to Bulandshahar along with his official staff by Jeep No. UAY-7970 at 9:00 a.m. when the said jeep was reached Bulandshahar Sikandarabad G.T. Road it met with an accident while the driver tried to save the Tempo which was being driven rashly and negligently by Tempo driver and that in the said accident the deceased sustained injuries which resulted to his death. It is further stated in the claim petition that at the time of sad accident the deceased was 49 years of old and was getting Rs.20,000/- towards salary .

5. It is submitted by learned counsel for the appellant that the deceased was 49 years of age at the time of accident and was in the profession of Deputy Commissioner, Trade Tax in U.P. Govt.. His income was considered by the Tribunal to be Rs.20,000/- per month which according to the counsel for the appellant is on the lower side and should be considered at least Rs.85,470/-per month as his future rise is not considered. It is further submitted that the Tribunal has granted 30% amount towards future loss of income of the deceased which should not be restricted and was granted relying on the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that the amount granted under non-pecuniary damages are on the lower side and it should be as per the decision in Pranay Sethi (Supra).

6. Learned counsel for the appellants has challenged award mainly on five grounds:

"1. Because the learned Tribunal badly failed to appreicate that had the deceased Assistant Commissioner, Sales Tax/ Trade Tax been alive in 2006 he would have been entitled to get revised pay scale as his batchmet Mr. Virendra Kumar Rai, Additional Commissioner, Grade 2, Allahabad received gross pay of Rs.85,470/- per month and the deceased would also had got promotion with the entitlement of revise pay of Rs.85,470/-.

2. Because while granting pension revised pay scale is taken into consideration and pension is fixed accordingly thus in the factual situation 30% addition as per Sarla Verma could not applied since this addition would be detrimental to the interest of the claimants.

3. Because the learned Tribunal also committed gross error of law in granting interest at the rate of 6% from 20.3.2021 in view of an application moved by the claimant on the said date whereas the law is well settled that interest has to be granted from the date of claim petition, thus grant of interest by the learned Tribunal from 20.3.2012 is totally unsupportable in law.

4. Because the learned Tribunal also committed manifest error of law in not awarding any compensation for love affect, care and guiding and loss of guardianship whereas it should be granted Rs.1,00,000/- for each as per law laid down by the Hon'ble Supreme Court in Rajesh and others Vs. Rajbir Singh 2013 ACJ 1403.

5. Because the present rate of interest is 9% per annum and the learned Tribunal erred in law in awarding interest of 6%."

7. Learned counsel for the appellants has heavily relied on the decisions of Apex Court in K.R. Madhusudhan and others Vs. Administrative Officer and another, 2011 LawSuit(SC) 94 and also relied on the judgment of this Court passed on 10.12.2019 in First Appeal From Order No.1359 of 2001 ( National Insurance Company Limited Alld. Vs. Smt. Durga Verma and others) and contended that future loss should be as per revision pay.

8. As against this, learned counsel for the Insurance Company has submitted that the award does not require any interference as the date of accident is 29.12.2002 and the decision of the Tribunal is prior to the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and therefore the Tribunal has not committed any error in not granting the future loss of income as per the decisions cited by counsel.

9. The concept of just and reasonable compensation has been explained time and again. The judgment of Apex Court in General Manager Kerla State Road Transport Corporation, Trivenduram Vs. Susamma Thomas and others, AIR 1994 SC 1631 has been considered by the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. Reliance has been placed on the judgment of Sri K.R. Madhusudhan and others Vs. Administrative Officer and another, (2011) 4 SCC 689 would be very apt and the judgment of learned Single Judge in National Insurance Company Limited Alld. Vs. Smt. Durga Verma and others) penned by one of us would be important. The method of determination of compensation has been reiterated in the case of Hem Raj Vs. Oriental Insurance Company Limited, 2018 ACJ 5 which has been subsequently dealt with by the Apex Court in the recent judgment Anita Sharma and Others Vs. The New India Assurance Co. Ltd. and Another, (2021) 1 SCC 171. The decision of Apex Court in Smt.Sarla Verma vs. Delhi Transport Corporation [2009 (2) TAC 677 (SC) has been distinguished in the case of grant of compensation for death of person who was in service at the time of accident. Even if we go by the history of the judgment passed in Civil Appeal Nos. 242-243 of 2020 (National Insurance Company Limited Vs. Birender and others) decided on 13.1.2020. The lumpsum of 30% cannot be granted for future loss.

10. A recent judgment of Apex Court in Sureshchandra Bagmal Doshi Vs. National Insurance Company Limited, AIR 2018 SC 2088 so as to contend that where the deceased was a salaried person, the thumb rule in Sarla Verma Vs. Delhi Transport Corporation and National Insurance Company Limited Vs. Pranay Sethi and Others should not be adhered too. The said judgment will enure for the benefit of the appellants.

11. It is an admitted position of fact that at the time of accident, the deceased was 45 years of age and he has left behind him widow and children. He was a Government servant. PW-3 who was the accountant has been examined on oath and he has conveyed that the deceased was earning Rs.20,000/- per month and has considered the age of the deceased to be 49 years and three months and a certificate shows as per the judgment, he was earning Rs.20,000/- per month and for the month of November, 2001, his pay packet is shown to be Rs.18,903/- per month. There are certain amount which were requested to be deducted as group insurance, the Tribunal considered the income to be Rs.20,000/- per month and that is how he calculated the income to Rs.2,08,000/- per annum and added 30%, deducted 1/3rd and granted Rs.27,04,000/- to which the Tribunal added further sum of Rs. 2,000/- for funeral expenses. The Tribunal did not think it proper to grant any other amount. The said amount carried with 6 per cent rate of interest as he was Deputy Commissioner, Trade Tax, U.P. Government.

12. Learned counsel for the appellants has submitted that the matter requires reconsideration as the decisions cited by the appellant would go to show that the appellant was entitled the mean of future income due to pay revision as has been opined by PW-3 in his ocular version.

13. Heard the learned counsels for the parties and considered the factual data. This Court finds that the accident occurred on 29.12.2002 causing death of Ganga Prasad Mishra who was 49 years of age at the time of accident. The Tribunal has assessed the income of the deceased to be Rs.20,000/- per month which according to this Court, in the year of accident, is just and proper looking to the salary slip. To which as the deceased was in the age bracket of 46-50, addition of Rs.20,000/- would be added as his salary have been revised to new pay scale of Rs.80,000, hence 25% of the said amount would be in consonance with decision in K.R. Madhusudhan( supra). Though the deceased was 49 years of age, we do not disturb the multiplier and deduction as granted by the Tribunal. We cannot add as per thumb rule of Sarla Verma ( supra) which is again thumb rule. The evidence goes to show that his income for the next 10 years would be atleast 50% addition by way of revision of pay scale which would have taken place in 2006 and he would retired in the year 2012 when the matter was decided. The amount under non-pecuniary heads should be at least Rs.1,00,000/- in view of the decision in Pranay Sethi (Supra) as every three years 10% be added to Rs.70,000/-. In view the facts and circumstances of the case, this Court feels no interference is called for as far as deduction of personal expenses is concerned.

14. The total compensation payable is recalculated and is computed herein below:

i. Annual Income Rs.2,40,000/- (Rs.20,000/- per month x 12 )

ii. Percentage towards future prospects: Rs.2,40,000/- (Rs.20,000/- per month /-)

iii. Total income : Rs.2,40,000/- + Rs.2,40,000/- = Rs.4,80,000/-

iv. Income after deduction of 1/3rd towards personal expenses : Rs.3,20,000/-

v. Multiplier applicable : 13

vi. Loss of dependency: Rs.3,20,000/- x 13 = Rs.41,60,000/-

vii. Amount under non pecuniary heads : Rs.1,00,000/-

viii. Total compensation :Rs.42,60,000/-

15. As far as issue of rate of interest is concerned, the interest 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. The interest as per Section 171 of Motor Vehicles Act, 1988 has to be granted normally from the date of filing of claim petition in this case the Tribunal has granted from March, 2012 without assigning reasons which cannot be done

17. As far as issue of rate of interest is concerned, the claimants would be entitled to 7.5% interest on the awarded amount from the date of claim petition till the award and thereafter at 6% rate of interest on the enhanced compensation for the period the appeal has remained pending without condoning the delay i.e. from 2014 to 2022. But in view of the judgment of Apex Court in Lakkamma Versus Regional Manager M/s United India Insurance Company Limited , 2021(0) AIJEL-SC 67547, no interest would be payable for 435 days i.e. days of delay in filing the appeal. Thereafter again 6% on the enhanced amount till the amount is deposited. The rate of interest granted by the Tribunal on originally awarded amount is maintained.

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

15. 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 within a period of 12 weeks from today with interest as directed above. The amount already deposited be deducted from the amount to be deposited.

19. 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.

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

21. 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 not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

22. 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 19 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R..

Order Date :-29.4.2022

Mukesh