Allahabad High Court
Smt. Asha Tiwari vs Debi Kinkar Ghosh And Another on 17 August, 2022
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- FIRST APPEAL FROM ORDER No. - 2872 of 2010
Appellant :- Smt. Asha Tiwari
Respondent :- Debi Kinkar Ghosh And Another
Counsel for Appellant :- Amit Kumar Sinha
Counsel for Respondent :- Brijesh Chandra Naik
Hon'ble Salil Kumar Rai,J.
Heard the counsel for the appellant and Sri Brijesh Chandra Naik, Advocate representing the opposite party no. 2.
This is a claimant's appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 22.5.2010 passed by the Motor Accident Claims Tribunal, Allahabad in Motor Accident Claim Petition No. 421 of 2004 (Smt. Asha Tiwari vs. Dev Kinkar Ghosh & Anr.). The appeal is for enhancement of compensation.
Motor Accident Claim Petition No. 421 of 2004 was filed by the claimant - appellant pleading that on 18.5.2004, Km. Priyanka Tiwari (the deceased), the daughter of the claimant died in an accident caused due to rash and negligent driving of Truck bearing Registration No. W.B. 23/9796. It was stated in the claim petition that the deceased was 20 years old and a student of B.A. Part - II and used to give tutions from which she earned Rs.3,000/- per month. On the aforesaid plea, a compensation of Rs.18,60,000/- was sought by the claimant. In its award, the Tribunal held that the deceased Km. Priyanka Tiwari died due to injuries suffered in the accident which took place due to rash and negligent driving of the offending vehicle. On evidence, the Tribunal also held that the offending vehicle was insured with the New India Assurance Company Limited, i.e., opposite party no. 2 and at the time of accident, the driver of the offending vehicle had a valid driving licence. So far as compensation is concerned, the Tribunal held that the income of the deceased as Rs.3,000/- per month was not proved and, therefore, awarded compensation on the notional income of Rs.15,000/- per annum. The Tribunal held that at the time of her death, the deceased was 18 years old and applied a multiplier of 13 on the age of the parents of the deceased. The Tribunal after deducting 1/3 as personal expenses of the deceased awarded a compensation of Rs.1,30,000/- as pecuniary damages and Rs.2,000/- for funeral expenses of the deceased. The present appeal has been filed for enhancement of compensation alleging that the Tribunal has awarded meager compensation and the same is liable to be increased.
No cross-objection or cross-appeal has been filed by the Insurance Company, i.e., opposite party no. 2 which was held to be liable to pay compensation to the claimant. In view of the aforesaid, this Court is not examining the findings of the Tribunal on the factum of accident and the liability of opposite party no. 2 to pay compensation to the claimant.
The Tribunal has erred in computing the compensation by applying a multiplier of 13 considering the age of the parents of the deceased. In accordance with the judgment of the Supreme Court in Sarla Verma (Smt) & Ors. vs Delhi Transport Corporation & Anr. 2009 (6) SCC 121, multiplier has to be applied on the age of the deceased and not on the age of the dependents of the deceased. In the present case, on the age of the deceased a multiplier of 18 had to be applied while computing the pecuniary damages payable to the claimant.
The deceased was a Bachelor and, therefore, 1/2 has to be deducted as the personal expenses of the deceased in accordance with the judgment of the Supreme Court in Sarla Verma (supra). The Tribunal has also not added the future prospects in the established income of the deceased while computing the compensation payable to the claimant. The aforesaid was necessary in accordance with the judgment of the Supreme Court in National Insurance Company Ltd. vs Pranay Sethi & Ors. (2017) 16 SCC 680. No compensation has been paid by the Tribunal for loss of estate and very low compensation has been paid by the Tribunal for funeral expenses of the deceased. Apart from the aforesaid, the father of the deceased was also entitled to compensation for loss of parental consortium along with the claimant who is the mother of the deceased. Even if the claimant had not been able to prove that the deceased earned Rs.3,000/- per month from tutions, compensation had to be calculated on a notional income of Rs.3,000/- per month, i.e., Rs.100/- per day which was the daily wage of a casual labour at the relevant time. The compensation payable to the claimant and the father of the deceased has to be calculated on the aforesaid principles. In light of the aforesaid, the compensation amount is re-determined as follows : -
(1) Notional income of the deceased = Rs.3,000/- per month, i.e., Rs.36,000/- per annum.
(2) 50% deductions as personal expenses of the deceased = Rs.18,000/- (Rs.36,000 - Rs.18,000)
(3) After adding 40% in the established income of the deceased = Rs.7,200/- (Rs.18,000/- x 40%)
Thus, the multiplicand = Rs.25,200/- Rs.18,000/- + Rs.7,200/-)
(4) Thus, the pecuniary damages payable to the claimant = Rs.4,53,600/- (Rs.25,200 x 18)
(5) Compensation for loss of parental consortium to the mother of the deceased, i.e., the claimant and father of the deceased = Rs.80,000/- (Rs.40,000/- each)
(6) Loss of estate = Rs.15,000/-
(7) Compensation for funeral expenses = Rs.15,000/-
Thus, the total compensation payable to the claimant =Rs.5,63,600/- (after adding Item Nos. 4, 5, 6 and 7)
The Tribunal has awarded 6% simple interest to the claimant on the compensation amount. In accordance with the judgment of the Supreme Court in National Insurance Company Ltd. vs. Mannat Johal & Ors. (2019) 15 SCC 260, it would be appropriate to award interest at the rate of 7.5% per annum on the compensation amount.
Thus, it is held that the claimant is entitled to a compensation of Rs.5,63,600/- along with simple interest at the rate of 7.5% per annum from the date of institution of the claim petition till its payment by the Insurance Company, i.e., opposite party no. 2. The award of the Tribunal is modified to the extent stated above.
The balance amount / excess amount as awarded by this Court in the present appeal shall be deposited by the New India Assurance Company Limited, Allahabad, the opposite party no. 2 in the Tribunal within three months from today. The amount so deposited by the New India Assurance Company Limited under the present order of this Court, shall in turn be deposited by the Motor Accident Claims Tribunal, Allahabad in the highest interest bearing fixed deposit schemes, either of the post office or of any nationalized bank. The receipts of the fixed deposits shall be given to the claimant who shall be entitled to withdraw the maturity amount on maturity of the fixed deposits. The maturity amount shall be credited by the bank/post office in any savings account held by the claimants singly. The concerned bank or post office shall not permit any loan or advance against the fixed deposits made in favour of the claimant. The Tribunal, while depositing the amount in any fixed deposit scheme, shall communicate the directions issued by this Court to the concerned bank/post office.
With the aforesaid directions and observations, the appeal is allowed and the award of the Tribunal is modified to the extent stated above. Parties shall bear their own cost.
Order Date :- 17.8.2022
Satyam
