Allahabad High Court

Arun Bhavna And 5 Others vs Indrajeet Singh And 2 Others on 29 April, 2022

Bench: Kaushal Jayendra Thaker, Ajai Tyagi




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. 1516 of 2021
 
Appellant :- Anu Bhavna And 5 Others
 
Respondent :- Indrajeet Singh And 2 Others
 
Counsel for Appellant :- Krishna Mohan Rai, 
 
Counsel for Respondent :- Ajay Singh,Harsh Vardhan Deshwar,Rakesh Bahadur
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

1. This appeal, at the behest of the claimants, challenges the judgment and award dated 30.5.2019 passed by Motor Accident Claims Tribunal/Additional District Judge, Fast Court No.1, Kasganj (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 187 of 2016 awarding a sum of Rs. 7,18,000/- with interest at the rate of 7% as compensation.

2. A claim petition was filed by the appellants before learned Tribunal with the averments that on 18.10.2016 the deceased Amit Kumar Varshney had gone to attend a marriage function in Kasganj with his friends by motorcycle no.UP-81-Y-3717. At about 1:30 in the night, when he was returning from marriage function and reached near Bilram Gate crossing, Kasganj, a tanker bearing no.UP-85-AT-1397 came from the side of Nadrai Gate which was being driven very rashly and negligently by the driver. On seeing the tanker from a distance, driver of the motorcycle i.e. the deceased stopped motorcycle in the extreme side of the road but the aforesaid tanker dashed into the motorcycle by coming on wrong side. In this accident, driver of motorcycle Amit Kumar Varshney and pillion rider Saurabh both sustained injureis and died on the spot. This claim petition pertains to the death of Amit Kumar Varshney. The age of the deceased Amit Kumar Varshney was 34 years and his monthly income was Rs. 30,000/- after deducting all expenses by running a grocery store.

3. Heard Sri Krishna Mohan Rai, learned counsel for the appellants and Sri Rakesh Bahadur, learned counsel for the respondent-Insurance company.

4. The accident is not in dispute. It is also not in dispute that the driver of the offending tanker was having valid and effective driving licence and the tanker was insured by the Insurance company - respondent no.3. There remains only an issue of compensation before us to be paid to the appellants.

5. Learned Counsel for the appellants submitted that the deceased was 34 year old hale and hearty person and he was running a grocery store from which he was earning Rs. 30,000/- per month. It is submitted that this income was his net income. Learned Counsel also submitted that the wife of deceased has deposed as PW-1. In her testimony, she has categorically deposed that the deceased was running a grocery store and his monthly income was approximately Rs. 30,000/- per month yet the learned Tribunal has assessed his income to be Rs. 3,000/- per month which is very meagre and without any basis. It is also submitted that the learned Tribunal had deducted 1/4th towards personal expenses of the deceased while it should have been 1/5th keeping in view the number of dependants. Learned Counsel has also objected to the rate of interest awarded by the Tribunal and has submitted that the rate of interest should be enhanced.

6. Per contra, the learned Counsel for the Insurance company Sri Rakesh Bahadur vehemently objected to the submission made by the appellants and submitted that the wife of the deceased has deposed in her testimony that the grocery store is still running and even before the death of her husband, her father-in-law and younger brother of the husband were also engaged in the business of same grocery store.

7. Learned Counsel has further submitted that the wife of the deceased has admitted in her testimony that today also she is residing with her-in-law and are taking care of expenses of her family. Hence, there is no loss of income after the death of the deceased. In these circumstances, the learned Tribunal has rightly assessed the income of the deceased at Rs. 3,000/- per month. Learned Counsel for the Insurance company has relied on the judgment of the Apex Court in New India Assurance Company Limited Vs. Yogesh Devi and others, (2012) 3 SCC 613.

8. The aforesaid judgment of Hon'ble Apex Court does not apply to the facts of the case on hand because in our case no income and expenditure statement is on record pertaining to the grocery store run by the deceased before his death. PW1- wife of the deceased has deposed that she has not produced any statement with regard to the income from the business but this is well established on record that the deceased was in business with his father and brother. As per the testimony of wife of the deceased, if her family expenses are being taken care off by her-in-law, it does not mean that she is getting required share from the income of the business because Insurance company has not proved whether the father-in-law and younger brother of her husband are giving income from the business to the widow. Moreover, learned Tribunal has given finding that accounts of business are not produced hence it could not be known how much income is being provided to the widow.

9. In Uphar tragedy case, the Apex Court granted and held that all above the age of 20 years would be entitled to get Rs. 10 Lacs each and Rs. 7.5 Lacs for those who are below 20 years of age. The fact that the deceased had his own business, can it be said that the family would not be even entitled to any amount and if entitled to should it be entitled to bear minimum the converse will have to be looked into also and we will have to balance the situation as it is not proved that the business which is running in share is being given by the in-laws to the minor children and/or the widow. They may be sharing the households as held by the learned Judge but at the same time, there cannot be a reason to not grant any compensation and, therefore, the said finding of the Tribunal that no amount should be granted is bad in the eye of law and in view of the judgment in Smt. Meena Pawaia & others Vs. Ashraf Ali and others, 2021 0 Supreme (SC) 694, he might have apprehend in future and would start his own business, therefore, the potential to all will also have to be looked into. In that view of the matter, the income will have to be decided by taking a holistic view of the matter.

10. The deceased was 34 years of age. He had good potential to earn hence we hold the monthly income of the deceased at Rs.10,000/- because he had 3 minor children and a widow.

11. Learned Tribunal has awarded future loss of income by adding 50% to the income of the deceased as per the Motor Vehicles Rules 2011 (11th amendment), which be maintained.

12. We are unable to concur with the submission of the appellant for deduction of 1/5th for the personal expenses of the deceased hence we maintain the deduction of 1/4th for personal expenses.

13. The learned Tribunal has rightly applied the multiplier of 16 as per judgment of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. The learned Tribunal has also rightly awarded compensation under non-pecuniary head which is Rs. 70,000/- in all as per the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 105. In addition to that we grant Rs.50,000/- each to the minor children because they had lost their father in their very tender age. Hence, the total Rs. 2,20,000.00 would be the amount awardable under non-pecuniary heads .

14. Hence, on the basis of the above discussion, the amount of compensation payable to the appellants is computed herein below:-

i. Income Rs.10,000/-

ii. Percentage towards future prospects : 50% namely Rs.5,000/-

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

iv. Income after deduction of 1/4th : Rs. 11,250/-

v. Annual income : Rs.11,250 x 12 = Rs.1,35,000/-

vi. Multiplier applicable : 16

vii. Loss of dependency: Rs.1,35,000 x 16 = Rs. 21,60,000/-

viii. Amount under non pecuniary heads : Rs.70,000/- + 1,50,000/- (Rs.50,000/- each to 3 minor children) = Rs. 2,20,000/-

ix. Total compensation : Rs. 23,80,000/-.

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

17. 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.

18. 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 with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.

19. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein.

20. A copy of this judgement be sent to the court below, concerned Judge and also circulated amongst the Motor Accident Claims Tribunals so that such mistakes are not committed in future which are glaring mistake which may cause an apprehension in the light of the litigation about a beneficial legislation being misinterpreted where the decision is not based on germane fact.