National Insurance Co. Ltd. vs Smt. Vidyawati Devi And 5 Others
2022 Latest Caselaw 1796 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3806 of 2007
 

 
Appellant :- Smt. Seema Devi And Others
 
Respondent :- Haribansh And Others
 
Counsel for Appellant :- Hari Pratap Gupta
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

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

1. This appeal has been preferred by the claimants-appellants against the judgement and award passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No.5 Gorakhpur dated 15.09.2007 in MACP No.729 of 2016 (Smt. Seema and others Vs. Haribansh and others), by which the Tribunal has awarded compensation Rs.1,89,500/- with interest at the rate of 6% per annum.

2. The brief facts of the case are that claimants-appellants filed a claim petition before the Tribunal seeking compensation under Motor Vehicle Act, 1988 for the death of Ajit Kumar (deceased) in a road accident with the averments that on 7.10.2005 at about 6:30 pm, the deceased was travelling from Gorakhpur Shahar to his house Semuapar in tempo bearing No.UP 53 L 9090. The driver of the aforesaid tempo was driving the vehicle very rashly and negligently and at a very high speed, all of sudden, a vehicle came on the way. The driver had lost his control over the steering of the vehicle and dashed with the tree. In this accident, the deceased sustained serious injuries and died on 08.10.2005.

3. Heard Shri Hari Pratap Gupta, learned counsel for the appellants and Shri Ankur Melhotra, learned counsel for the Insurance Company. However, none is present for respondent owner and driver.

4. The owner's presence is not necessary as the Insurance Company has already deposited the amount awarded by the Tribunal. They have acquiesced to the award. Which means that they have accepted that accident took place on 07.10.2005 and Ajeet Kumar, who was 24 years of age, died out of vehicular injuries. The claimants filed claim petition claiming that the deceased was a trained electrician, who left behind his widow of 22 years and parents who were totally dependent on him of age 52 and 48 years.

5. It is submitted that in the year 2005, deceased was trained electrician, the Tribunal took the income as mentioned for notional income under the second schedule, which according to learned counsel for the appellant could not have been done. That the accident occurred in the year 2005 and the decision was prior to the judgement of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121, no amount towards future loss of income was granted. The Tribunal has deducted 1/3 for personal expenses of the deceased. The Tribunal granted multiplier of 17 and as the deceased did not die on the same day and was hospitalized, granted a sum of Rs.10,000/- for medical expenses and granted Rs.9,500/- under the non pecuniary damages. This amount of Rs.1,89,500/- was to be paid by the respondents jointly and severally with 6% interest. It is this compensation which has aggrieved the appellants.

6. It is submitted by learned counsel for the appellants that the Apex Court in Smt. Meena Pawaia & others Vs. Ashraf Ali and others 2021 0 Supreme (SC) 694 has held that the Tribunals are supposed to consider the potential of a person to earn and a recent judgement of the Apex Court under Section 163A for the death of child of seven years in the year 2004 has held that his notional income should be Rs.25,000/- per annum. In our case, the deceased was a trained electrician and was running his business as a vocation of electrician and, therefore, we consider his income to be Rs.3000/- per month. It is requested that the amount be considered to be Rs.3000/- per month. It is submitted by learned counsel for the appellants that even in the year of accident the Apex Court had held that future loss of income would be admissible, therefore, he claims as 40% of said amount.

7. As far as deduction for personal expenses is concerned, there is no dispute between the parties. As far as the multiplier of 17 is concerned, there is a dispute and it should be 18 according to the learned counsel for the appellants as the Tribunal has applied multiplier as per for the schedule, the schedule, according to the counsel, is now re-visited in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 Judgement and hence, according to him, the multiplier should be 18. It is submitted that the medical expenses as granted may not be enhanced as there are no vouchers, which show that the amount granted Rs.10,000/- was paid. As far as non pecuniary damages are concerned, it is submitted that this Court may consider the judgement of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and Kurvan Ansari @ Kurvan Ali and another Vs. Shyam Kishore Murmu and another, 2021 (4) TAC 673 (Supreme Court).

8. As against this, learned counsel Shri Ankur Mehrotra, appearing for insurance company has submitted that the Tribunal in the year 2005 has rightly considered the annual income to Rs.15,000/- per annum as there is no documentary evidence was produced. The evidence of PWs-1 & 2 also did not lay down any foundation that income was more than Rs.15,000/- per annum. It is further submitted that in the year of accident the prospective income were not to be considered as Uttar Pradesh Motor Vehicle rules, 1998 was silent and amended them in the year 2011. They cannot be retrospectively made effective and as far as multiplier is concerned, the learned counsel states that as per the judgement in Sarla Verma (supra). As far as rate of interest is concerned, learned counsel states that the matter is remain pending before this Court may consider grant of interest as per the repo rates.

9. We have heard learned counsel for the parties in view of the three latest decision of the Apex Court mentioned herein above namely, Smt. Meena Pawaia & others Vs. Ashraf Ali and others 2021 0 Supreme (SC) 694, Basanti Devi and Kurvan Ansari @ Kurvan Ali and another Vs. Shyam Kishore Murmu and another, 2021 (4) TAC 673 (Supreme Court) case wherein the Apex Court has considered the notional income of a minor of seven years in the year 2004 to be Rs.25,000/- per annum. We consider the income of Rs.36,000/- per annum plus 40%. We are relying on the judgement of Pranay Sethi (supra) that it is made applicable retrospectively also and 1/3 would be deducted. The multiplier would be 18. We grant lump-sum Rs.70,000/- as per Pranay Sethi (supra) judgement plus as five years have elapsed the income 10% for every three year. Hence, we round up Rs.30,000/-. As it has been rightly pointed out by the learned counsel for the insurance company that they have conciliated therefore, rate of interest is not enhanced, should be also 6%. rate of interest.

10. Hence, the total compensation, in view of the above discussions, payable to the appellants-claimants is being computed herein below:

i.

Annual Income

Rs.3,000/- x 12

Rs.36,000/-

ii.

Percentage towards Future-Prospects (40%)

Rs.36,000 /- x 40%

Rs.14,400/-

iii.

Total Income

Rs. 36,000 /- + Rs.14,400/-

Rs.50,400/-

iv.

Income after deduction of 1/3

Rs.50,400/- - Rs.16,800/-

Rs.33,600/-

v.

Multiplier applicable

vi.

Loss of dependency

Rs.33,600/- x 18

Rs.6,04,800/-

vii.

Amount under Non-pecuniary Heads

Rs.30,000/-+Rs.70,000/-

Rs.1,00,000/-

ix.

Total Compensation

Rs.6,04,800/-+Rs.1,00,000/-

Rs.7,04,000/-

11. 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 insurance company shall deposit the additional amount within a period of 12 weeks from today with interest at the rate of 6% 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.

12. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [2007(2) GLH 291] and this High Court if 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 any 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 but if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants 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.

13. The Tribunal shall follow the guidelines issued by the Hon'ble Apex Court in Bajaj Allianz General Insurance Company Privae Ltd. vs. 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. Since long time has elapsed, the amount be deposited in the Saving Bank Account of claimant(s) in a nationalized Bank.

(Ajai Tyagi, J.)              (Dr. Kaushal Jayendra Thaker, J.)
 
Order Date :- 21.04.2022
 
Ashutosh Pandey