Raghuraj Singh vs Gyan Singh And Others
2022 Latest Caselaw 807 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No :- 2
 
Case :- FIRST APPEAL FROM ORDER No. - 3381 of 2003
 

 
Appellant :- Raghuraj Singh
 
Respondent :- Gyan Singh And Others
 
Counsel for Appellant :- Y.S. Bohra
 
Counsel for Respondent :- Pradeep Kumar Sinha,Arvind Kumar
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per: Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the claimants have challenged the judgment and award dated 15.11.2003 passed by Motor Accident Claims Tribunal/ District Judge, Gautam Budh Nagar (herein after referred to as ''Tribunal') in M.A.C.P. No.211 of 2001 (Shri Raghuraj Singh vs. Gyan Singh and others) awarding sum of Rs.9,62,000/- as compensation to the claimants with interest at the rate of 6% per annum.

2. At the very outset, it is relevant to mention that the claim petition was instituted by his father on account of death of a unmarried boy, who met with a road-accident. Initially, the mother of the deceased was not made party before the learned Tribunal though she was and is still alive. She being the class-1 heir as per Hindu Succession Act, 1956, should have been made party as claimant. It was on the face of record before the learned Tribunal that mother of the deceased was alive even though the learned Tribunal did not take pain to call upon the claimant to implead the mother as a party. Claim petition was decided in favour of claimant. Now at the time of hearing this appeal, we pointed out the aforesaid fact to the parties and on our behest, appellant/claimant made the mother of the deceased as party/claimant in the memo of appeal.

3. The brief facts of the case are that appellant Raghuraj Singh (father of the deceased) filed a claim petition before learned Tribunal for seeking compensation on account of death of his unmarried-son in a road accident. It is averred in petition that on 24.5.2001, the deceased, namely, Vaibhav Talan, was going to Lucknow from Kanpur in a car bearing No.UP-78-AC/9288. He was sitting on the back-seat. At about 2:30 p.m., when the aforesaid car reached near Sainik School Pulliya, within the jurisdiction of Police Station-Sarojini Nagar, Lucknow, a truck bearing No.UP-78/9655 coming from backside at a very high-spead, driven rashly and negligently by its driver dashed against the car. In the accident, deceased sustained fatal injuries and died.

4. Heard Shri Y.S.Bohra, learned counsel for the appellant-claimant and Shri Pradeep Kumar Sinha, learned counsel for the respondents. Perused the record.

5. The accident, in this case, is not in dispute. The liability of respondent No.2-Insurance Company is not in dispute. Finding of negligence is also not challenged. The claimant/appellants have filed the appeal for enhancement of compensation while during the course of arguments, the Insurance Co. has orally objected to the finding, arrived at by learned Tribunal regarding Issue No.3, which relates to the driving-licence of the truck-driver.

6. Hence, apart from the finding regarding the driving licence of the truck-driver, it remains the issue of quantum of compensation. Learned counsel for the appellants submitted that the deceased was a boy of 24 years only. He had passed M.B.A. from Jamuna Lal Bajaj Institute of Management, Mumbai, and had secured the job in Ranbaxy Company and he had to join on 1st June, 2001, i.e., just after a week of this unfortunate accident. Learned counsel further submitted that a copy of the aforesaid appointment-letter is filed on record, which also shows that his salary was fixed more than Rs.20,000/- per month, but learned Tribunal ignored this fact and assessment of his monthly income was met on the basis of his basic-salary only.

7. Per contra, Shri Sinha, learned counsel appearing on behalf of Insurance Company, has submitted that the deceased had not joined the service, therefore, the salary mentioned in appointment-letter cannot be taken into account for calculation of compensation. He elaborates that at the time of death, the deceased was not earning, hence notional income should be taken.

8. We are unable to concur with the above submission of by Shri Sinha, learned counsel appearing for the Insurance Company. It is a fact that the deceased had yet not joined the service in pursuance of his appointment-letter, but this Court cannot ignore the fact that only a week was left for him to join when the deceased met with the accident and lost his life. In such a situation, learned Tribunal should have analyzed the aspect of potentiality of the deceased to earn as the claimants are entitled to 'just-compensation'. Tribunal has committed an error in presuming the monthly income of the deceased at Rs.10,000/- on the basis of basic-salary from his appointment-letter. The deceased had graduated from a reputed management institute and had secured appointment in a prestigious company like Ranbaxy. Therefore, looking to the educational qualification and the family-background, the deceased was having a bright future. Although, the deceased had not joined service, yet the salary mentioned in the appointment-letter even if it cannot be made sole basis of assessment of income of the deceased, but it can certainly be viewed to assess the potentiality of the deceased person to earn as held by Hon'ble Apex Court in Meena Pawaia and others vs. Ashraf Ali and others, 2021 LawSuit (SC) 743. Hence, we are unable to subscribe to the submission of Insurance Company that notional income of the deceased should be considered. Keeping in view the potentiality of the deceased to earn on the basis of above appointment order, we hold the income of the deceased at Rs.15,000/- per month.

9. Hon'ble Apex Court in National Insurance Co. vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093 has held that compensation shall also be granted to the claimants for 'future loss of income' also. In case of salaried or self-employed persons or on a fixed wages. This case law is further extended by Hon'ble Apex Court in Meena Pawaiya (supra) to the deceased, who was not serving at the time of accident and had no income at the time of death and held that legal heirs of such person shall also be entitled to future prospects by adding future-rise in income, i.e., addition of 40% of the income determined on guess-work considering the educational qualification, family-background, etc., where the deceased was below the age 40 years. In the case on hand, the age of the deceased was 24 years. The deceased was well educated and about to join service after a week of the accident, hence in the light of the aforesaid observations of Hon'ble Apex Court, 40% shall be added to the income of the deceased for future prospects.

10. Learned Tribunal has committed gross-error in not deducting any sum towards personal expenses of the deceased. It is an admitted fact that the deceased was unmarried person, therefore, as per the judgment of Hon'ble Apex Court in Munna Lal Jain vs. Vipin Kumar Sharma, 2015 (3) TAC 1 (SC), learned Tribunal has applied multiplier of 8 only on the basis of age of the father. According to the decision in Munna Lal (supra), the multiplier shall be granted on the basis of the age of the deceased. Therefore, keeping in view the age of the deceased, namely, 24 years, multiplier of 18 will be applicable in light of the decision of Hon'ble Apex Court titled Smt.Sarla Verma vs. Delhi Transport Corporation and others, 2009 (2) TAC 677 (SC).

11. Learned Tribunal has awarded only Rs.2,000/-for funeral expenses and no other amount is awarded under the head of non-pecuniary damages, which could not be done. Hence, we hold that as per the judgment of Hon'ble Apex Court in Pranay Sethi (supra), appellants shall be entitled to Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses. Appellants are father and mother of the deceased, who lost their young-son at his age of just 24 years, therefore, both of them shall be entitled to filial consortium of Rs.50,000/- each for loss of love and affection.

12. Hence, the total compensation payable to the appellants and daughters of the deceased as per the discussion above is recomputed herein below:

i.

Annual Income

Rs.15,000/- x 12

Rs.1,80,00/-

ii.

Percentage towards Future-Prospects (40%)

Rs.72,000/-

iii.

Total Income

Rs.1,80,000/- + Rs.72,000/-

Rs.2,52,000/-

iv.

Income after deduction of 1/2

Rs.2,52,000/- - Rs.1,26,000/-

Rs.1,26,000/-

v.

Multiplier applicable

vi.

Loss of dependency

Rs.1,26,000/- x 18

Rs.22,68,000/-

vii.

After adding Non-pecuniary Damages

Rs.22,68,000/- + Rs.1,30,000/-

Rs.23,98,000/-

ix.

Total Compensation

Rs.23,98,000/-

13. As far as issue of rate of interest is concerned, it 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."

14. Learned Tribunal has awarded rate of interest as 6% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.

15. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal is modified to the aforesaid extent. United India Insurance Company Limited-respondent No.3 shall deposit the entire amount within a period of 12 weeks from today with interest @ 7.5% per annum 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.

16. Now, there is another issue to be decided in this appeal with regard to the failure of offending truck-driver to produce his driving-licence before the learned Tribunal. Learned counsel for the Insurance Company made submission that although no cross-objection has been filed by him as per Order XLI, Rule 22, Clause-I. In this regard, learned counsel has relied on judgment of Hon'ble Apex Court in Ravindra Kumar Sharma vs. State of Assam and others, 1999 (8) Supp.62, wherein it is held that it is respondents' right to attack the adverse finding. Filing of cross-objection is purely optional and not mandatory. Adverse finding can be attacked by the respondent-defendant without filing cross-objection. Learned counsel for the National Insurance Co.Ltd-respondent No.2 submitted that the offending truck was insured by it, but during the proceedings before learned Tribunal, the driver of the truck did not appear nor filed his driving-licence. Hence, it is not proved that truck driver was having a valid driving-licence at the time accident and this issue is wrongly decided by the Tribunal. Learned Tribunal held that the Insurance Co. has taken the plea that the driver of the truck was not having a valid driving-licence, therefore, it was the burden on the shoulders of the Insurance Co. to prove that truck-driver was not having the aforesaid licence. We are in full agreement with the submissions made by learned counsel appearing on behalf of National Insurance Co.-National Insurance Co. Perusal of impugned judgments shows that Issue-3 was framed by the Tribunal as under:

"Whether the driver of the offending vehicle had no vaild driving licence on the date of accident? If so, its effect?"

17. While deciding the aforesaid issue, learned Tribunal has held as under:

"No driving-licence has been filed by the Tribunal as he has not come to contest it. The plea was taken by the Insurance Co. Therefore, it was its duty to have proved it that the driver of the truck was not having a valid driving-licence and no such evidence has been produced. It is for the purpose, who takes the plea to prove it, but no such evidence has been given."

18. With the aforesaid finding, learned Tribunal decided Issue-3 in negative.

19. Learned Tribunal has opined that it is for the person, who takes the plea to prove it, but this is not the law of evidence everywhere. Section 106 of Indian Evidence Act, 1872, provides as follows:

"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

20. Hence, whether any driver of the vehicle was having a valid driving-licence or not is the fact, which is in 'special-knowledge' of the driver. Therefore, burden to prove the fact of valid driving-licence always lie on the driver and, therefore, we are not convinced with the findings given by the Tribunal on Issue-3 and, accordingly, we upturn the said finding and hold that it is not proved that the driver of the offending truck was having valid driving-licence at the time of accident.

21. In view of the above, the appeal and oral cross-objection are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The Insurance Company shall deposit the amount within a period of 8 weeks from today with interest at the rate of 7.5% 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.

22. Since, it is held by us that owner and driver of the offending truck have failed to prove that the truck-driver was having valid driving-licence on the date of accident, we direct that amount of compensation shall be paid by respondent No.2-National Insurance Co., Insurance Company of the offending truck and after that, it will be open to the Insurance Company to recover the amount, paid, from the owner of the truck.

23. 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 in 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 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.

24. It is made clear that learned Tribunal has discharged the liability of respondents 1, 3 and 4. The liability of owner of the truck, i.e., respondent No.2 cannot be discharged because the owner of the vehicle is liable to pay the compensation and Insurance Company has to indemnify the liability of the owner. Hence, we upturn the finding of Tribunal to the extent it discharged the liability of owner of the truck.

25. It is pertinent to mention that both the appellants (mother and father of the deceased) shall get equal amount of enhanced compensation.

26. 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 prupose 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 without F.D.R.

(Ajai Tyagi, J.)               (Dr. Kaushal Jayendra Thaker, J.)
 

 
Order Date :- 08.04.2022
 
LN Tripathi