Parth Alias Pratham vs New India Insurance Co. Ltd. And 2 ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3712 of 2017
 

 
Appellant :- Parth Alias Pratham
 
Respondent :- New India Insurance Co. Ltd. And 2 Others
 
Counsel for Appellant :- Devesh Pratap Singh Chauhan
 
Counsel for Respondent :- Rakesh Bahadur
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Dr. Kaushal Jayendra Thaker,J.)

1. Heard Sri Devesh Pratap Singh Chauhan, learned counsel appearing for the appellant and Sri Rakesh Bahadur, learned counsel appearing for the Insurance Company. None is present for the owner.

2. The present appeal has been preferred against the judgment and award dated 15.09.2017 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No.4/ Special Judge, E.C. Act, Farrukhabad in M.A.C.P. No.36 of 2013 (Parth @ Pratham Vs. New India Insurance Co. Ltd. granting compensation of Rs.8,50,960/- with interest at the rate of 6%.

3. A very tragic death of three people of the family leaving a minor of 10 years child who is only sole surviving legal representative, who has preferred this appeal. The award in claim petitions for the compensation on death of other two have attained finality. We have no burden on the judgment of Rajastahan High Court in the case of Vimla Kanwar Vs. State of Rajasthan & Ors. 2018 CrLJ 4111 with unnecessary facts that the accident took place on 23.06.2011 is not in dispute. Ranveer Singh (the deceased) was a doctor aged about 36 years and was in government job and his monthly income was Rs.43,998/- are not in dispute.

4. Ranveer Singh was a Government Doctor and was fetching net income of Rs.43,998/- per month. The learned Tribunal below had illegally deducted Rs.2,000/- from the monthly income for the purposes of calculation of the compensation. As per the established principles of the law in this regard, the calculation ought to have been done on the basis of the net income. He further submitted that no amount under the head of future loss of income could have been granted.

5. It is further contended by learned counsel for the appellant that the Tribunal has not considered grounds and committed error in granting 1/6 of the amount to the claimant as the claimant is the sole surviving legal heir of the deceased.

6. Sri Rakesh Bahadur, learned counsel for the respondent has submitted that income which has been considered is just and proper. It is further contended that the Tribunal has not committed any error in granting 1/6 of the amount to the claimant as the claimant is the sole surviving legal heir of the deceased. It is further submitted by Sri Rakesh Bahadur that multiplier granted by the Tribunal is just and proper and demand of Rs.5/- lacs for loss of love and affection and Rs.5/- for constrodian could be granted. It is further submitted by Sri Rakesh Bahadur, learned counsel for the respondent that demand of interest at the 18% is against the rule of U.P. Motor Vehicle Rules, 1998 (Amended in 2011) and it is next submitted that repo-rate is consistently falling, the interest cannot be more than 7%. It is further submitted that non-pecuniary damages should be granted as per the rule (supra).

7. The factum of accident is not in dispute. The negligence of the truck driver which has been considered by the Tribunal is also not in dispute as it is evident from the record that the driver of the truck was driving his vehicle rashly and negligently came on the wrong side and dashed with the car driven by the father of the appellant who along with his wife and his son died on the spot, hence, the same issue has attain finality. As per the liability of the Insurance Company is concerned, there is no dispute that the vehicle was insured and the driver had proper valid driving licence. The Insurance Company and the owner has accepted the finding of facts and they have attend finality. The liability on Insurance Company has been accepted by the Insurance Company.

8. The only question which is left for our consideration is the issue of compensation. The Tribunal though considered the judgment of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121, has not added any amount towards the head of future loss of income though the deceased was a doctor and was in government job which is evident from the evidence and the discretion of the Tribunal, and thereafter, even as per the judgment of Sarla Verma (supra) future loss of income would be admissible. The law was very clearly propounded by the Apex Court In Gobald Motor Service Ltd. & Vs. R. M. K. Veluswami & Others AIR 1962 SC 1 and in General Manager Kerla State Road Transport Corporation Trivandrum Vs. Susamma Thomas and others 1994 (2) SCC 176 reiterated in Sarla Verma (supra) that where deceased was salaried person, future loss of income must be added. The Rule 220 of The U.P. Motor Vehicle Rules, 1998 (Amended in 2011) have specified the same, hence, for the same, we will have to consider the question of future loss of income and modify the same. We will have to decide three aspects, (i) whether, the appellant is entitled to future loss of income for the death of his father, the appellant has lost his father at the tender age of 10 year, (ii) whether, the non-pecuniary damages granted by Tribunal requires and most importantly and very strangely the Tribunal after relying on Rule 220 of the U.P. Motor Vehicle Rules, 1998 (Amended in 2011), which stipulated as follows:-

"Rule 220. Judgment and award of compensation-

(1) The claims Tribunal, in passing orders, shall record concisely in judgment the findings on each of the issues framed and the reasons for such finding and make an award, specifying the amount of compensation to be paid by the insurer or in the case of a vehicle exempted under sub-section (2) or (3) of Section 146 by the owner thereof and shall also specify the person or persons to whom compensation shall be payable.

(2) Where compensation is awarded to two or more persons under sub-rule (1) the Claims Tribunal shall also specify the amount payable to each of them.

(3) The Claims Tribunal may, while disposing of claims for compensation, make such orders regarding costs and expenses incurred in the proceeding as it thinks fit.

9. Sri Rakesh Bahadur, learned counsel appearing for the respondent submitted that there is a rule that a minor will get 1/6 of the share. The issue is not share and how much will be given to a minor. The question before us is that the minor is the sole legal heir/legal representative to whom the other amount would be admissible, whether it would go as corpus for the same only 1/6 cannot be made available to him as no one else is a recipient of the amount. This is not a partition suit. The legal representative/legal heir would be entitled to the compensation for the tortious act of the driver for which the owner would be vicariously liable and the Insurance Company would have to indemnity the third party. The appellant is the sole surviving legal heir, the compensation has to be decided as per the provisions of Section 166 and not as per Hindu Law or the personal law, this is error which has crept in the judgment and award of the Tribunal. The Tribunal could not have held that the appellant would be entitled to only 1/6 of the share. Learned counsel for the respondent could not satisfies that the said finding requires to be upheld. Once is proved that he is the only legal surviving heir, the entire corpus would go to him.

10. The counsel for the appellant contended that interest 18% should be granted. It is submitted by Sri Rakesh Bahadur, learned counsel for the respondent that the repo-rates have gone down, hence rate of interest 18% cannot be granted. The Rule 220 of the U.P. Motor Vehicle Rules, 1988 (Amended in 2011) specifies that interest would be at the rate of 7%.

11. Having considered the rival submission of both the learned Advocates as far as interest is concerned, we would have to consider the provisions of Section 171 of the Motor Vehicle Act, 1980 enjoy the duty on the Tribunal to grant interest for delay in payment. In this case, the litigation was pending since 2013. The accident took place on 23.06.2011, no reasons are assigned why the conditional rate of interest is granted. As the matter has been conciliated on the basis of compensation on the ground of admissible compensation, we deem it fit to grant interest at the rate of 6% and deprecate the practice of granting such conditional interest which has been deprecated by the Apex Court also. The rate of interest would be 6% from the filing of the claim petition till the amount is deposited.

12. We are in agreement with the submission made by Sri Rakesh Bahadur that The amount which would be admissible Rs.43998/- as granted by the Tribunal + 50% as the deceased was 36 years of age and a salaried person, multiplier granted 15 is just and proper as per the judgment of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050, we cannot accept the submission of learned counsel for the appellant and Rs.5/- lacs will have to be awarded for loss of love and affection and Rs.5/- lacs for consortium. Three persons who are dependent on him, hence, 1/3 will have to be deducted which also has not been done by the Tribunal. It would be Rs.50,000/- for the minor child for loss of love and affection who lost his father and mother at the prime age. Rs.50,000/- would be granted for funeral charges for parents. The amount under the non-pecuniary head would be Rs.50,000/-.

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

i. Monthly Income: Rs.43,998/-

ii. Percentage towards future prospects : 50% namely Rs.21999/-

iii. Total income : Rs.43,999/- +21,999/- = Rs.65,997/-

iv. Income after deduction of 1/3rd towards personal expenses : Rs.43,998/-

v. Annual income : Rs.43,998/- x 12 = Rs.5,27,976/-

vi. Multiplier applicable : 15

vii. Loss of dependency: Rs.5,27,976/- x 15 = Rs.79,19,640/-

viii. Amount under all non pecuniary heads: Rs.1,50,000/- =

ix. Total compensation: Rs.80,69,640/-.

14. 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 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.

15. The young boy would have now become major as the accident took place on 23.06.2011 if he shows cogent evidence that he is capable of handling the money 50% may be released for his further studies. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private 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. The amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R., 50% would be deposited for coming five years.

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 be passed by Tribunal.

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. 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. As 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.

20. A copy of this judgment be circulated so that the Tribunals in future may not commit such mistake. A copy of this order be sent to Balveer Singh also for his guidance.

21. The record and proceedings, if any, be transmitted to the Tribunal forthwith.

22. This Court is thankful to both the advocates for ably assisting the Court.

Order Date :- 4.4.2022

Krishna*