Allahabad High Court
Rashid Ahmad And Another vs Islam Ullah Khan And Another on 10 August, 2022
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- FIRST APPEAL FROM ORDER No. - 1962 of 2017
Appellant :- Rashid Ahmad And Another
Respondent :- Islam Ullah Khan And Another
Counsel for Appellant :- Ram Singh
Counsel for Respondent :- S.K.Mehrotra
Hon'ble Salil Kumar Rai,J.
Heard the counsel for the appellant and the counsel for the New Oriental Insurance Company Limited, i.e., opposite party No. 2.
This is claimants' appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as, 'Act, 1988') against the award dated 18.9.2003 passed by the Motor Accident Claims Tribunal, Fatehpur (hereinafter referred to as, 'Tribunal') in Motor Accident Claim Case No. 79 of 2002 and for enhancement of compensation.
The order-sheet of the Court shows that the lower court records have not yet been summoned by this Court. As the appeal is pending in this Court since 2004 and is for enhancement of compensation, which do not require perusal of the lower court records, therefore with the consent of the counsel for the opposite party No. 2, the Court has proceeded to hear the case on merits. It is further noted that no cross-appeal or cross-objection by the opposite party No. 2 has been filed challenging the award of the Tribunal regarding their liability to pay compensation to the claimants.
The relevant facts of the case are that the claimants-appellants instituted Motor Accident Claim Petition No. 79 of 2002 under Sections 140 and 166 of the Act, 1988 claiming compensation of Rs. 13,10,000/- for the death of their son, Shajid Ali, in an accident caused due to rash and negligent driving of Tata Sumo bearing Registration No. U.P. 78 R 1957 (hereinafter referred to as, 'offending vehicle'). The deceased Shajid Ali was 10 years old at the time of accident and it was alleged that at the time of accident he used to make Bidi and earned Rs. 2,000/- per month.
In its award dated 18.9.2003, the Tribunal held that Shajid Ali died in the accident due to rash and negligent driving of the offending vehicle and at the time of accident, the offending vehicle was insured with opposite party No. 2 and the driver of the offending vehicle had a valid driving license. The Tribunal awarded a compensation of Rs. 95,000/- to the claimants which included Rs. 90,000/- for loss of dependency and Rs. 5,000/- for funeral expenses. The Tribunal held that the total income of the deceased was Rs. 500/- per month and after applying a multiplier of 5 computed the loss of dependency of Rs. 90,000/-. The Tribunal held the Insurance Company, i.e., the opposite party No. 2 liable to pay compensation.
Apparently, the Tribunal has awarded very low compensation to the claimants. The claimants are the parents of the deceased.
In Kishan Gopal Vs. Lala, (2013) ACJ 2594 (SC), the Supreme Court observed that in cases of death of children, it would be just and reasonable to assess compensation on the basis of a notional income of Rs. 30,000 per annum and after applying a multiplier of 15. In Kishan Gopal (supra), the accident and consequential death occurred on 19.7.1997. In the present case, the accident and consequential death occurred on 19.1.2002. The aforesaid judgment of the Supreme Court was also followed by a Division Bench of this court in its judgment and order dated 14.2.2017 passed in F.AF.O. No. 1580 of 1993 (Nagma Bono v. Harish Chandar Gupta). Thus, in the present case, the pecuniary damages payable to the claimants due to the death of their son in the accident is also to be calculated according to the law laid down by the Supreme Court in Kishan Gopal (supra) which was followed by the Division Bench of this court in Nagma Bano (supra). For the aforesaid reasons, the claimants are entitled to a compensation of Rs. 4,50,000/- as pecuniary damages for the death of their son in the accident.
Apart from the pecuniary damages, the claimants are also entitled to compensation for non-pecuniary damages. In accordance with the judgments of the Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi, (2017) ACJ 2700 (SC) and Magma General Ins. Co. Ltd. Vs. Nanu Ram, (2018) ACJ 2782 (SC), the claimants are entitled to a compensation of Rs. 15,000/- for loss to estate and Rs. 15,000/- as funeral expenses. Apart from the aforesaid, the claimants are also entitled to a compensation of Rs. 40,000/- each for loss of filial consortium as awarded in Magma General Ins. Co. Ltd. (supra), i.e., a total of Rs. 80,000/- for loss of filial consortium due to the death of their son.
Thus, the claimants are entitled to a compensation of Rs. 5,60,000/- (pecuniary damages + loss to estate + funeral expenses + loss of filial consortium, i.e., Rs. 4,50,000/- + Rs. 15,000/- + Rs. 15,000/- + Rs. 80,000/-).
The Tribunal has awarded a simple interest of 9% per annum. In accordance with the judgement of the Supreme Court in National Insurance Company Ltd. Vs. Mannat Johal & Others, (2019) 15 SCC 260, it would be appropriate that the claimants are awarded a simple interest of 7.5 % per annum on the compensation amount from the date of the institution of the claim petition till date of its payment by the opposite party No. 2. The award of the Tribunal is accordingly modified to the aforesaid extent.
With the aforesaid directions, the appeal is allowed and the award of the Tribunal is modified to the extent indicated above.
The balance amount alongwith the interest accruing on the same shall be deposited by the Insurance Company within three months from today before the Motor Accident Claim Tribunal, Fatehpur. The amount so deposited by the Insurance Company shall in turn be deposited by the Tribunal in the highest interest bearing Fixed Deposit Scheme of the Post Office or any Nationalized Bank and the receipts of the same shall be given to the claimants-appellants, who shall be entitled to withdraw the maturity amount when the Fixed Deposit matures. The maturity amount shall be credited by the bank/post office in any savings account of the claimants-appellants. The concerned bank or post office shall not permit any loan or advance against the fixed deposits made in favour of the claimants-appellants. The Tribunal, while depositing the amount in the fixed deposit scheme, shall communicate the directions issued by this Court to the concerned bank/post office. In case, the Insurance Company fails to deposit the balance amount within three months from today, the Tribunal shall recover the same in accordance with law.
Office shall transmit the records of the case to the Tribunal, at the earliest.
Order Date :- 10.8.2022
Anurag/-
