Allahabad High Court
Awdesh Singh And 2 Others vs National Insurance Co. Ltd. And 2 ... on 6 December, 2022
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 157 of 2022
Appellant :- Awdesh Singh And 2 Others
Respondent :- National Insurance Co. Ltd. And 2 Others
Counsel for Appellant :- Deepali Srivastava Sinha
Counsel for Respondent :- Sharad Kumar Srivastava,Rajesh Kumar
Hon'ble Saral Srivastava,J.
Order on Civil Misc. Delay Condonation Application No.1 of 2022.
1. Heard learned counsel for the appellants and learned counsel for the respondents.
2. The Stamp Reporter has reported the appeal to be beyond time by 1028 days.
3. The appellants have filed the present delay condonation application praying for condonation of delay in filing the appeal.
4. The appellants in the affidavit filed in support of the delay condonation application have stated that deceased was the wife of appellant no.1. The deponent- Awdesh Singh deposed that he is the husband of the deceased and appellant nos.2 & 3 are the siblings. It is further averred that after the death of deceased, deponent has to look after his children i.e. appellant nos.2 & 3 and further, there was no sufficient means to bear the expenses to be incurred in filing the appeal due to which, appeal could not be filed in time. It is further averred that after six months from the date of award, pandemic of COVID-19 had gripped the entire country and the Apex Court in Suo Motu Writ Petition (Civil) No.3 of 2020 has excluded the period of pandemic COVID-19 for the purposes of limitation. It is stated in the affidavit that delay was bonafide and beyond the control of appellants, and therefore, deserves to be allowed.
5. Per contra, learned counsel for the respondents would contend that there is an inordinate delay of more than 1000 days in filing the appeal, and claimants/appellants have failed to explain the delay properly and sufficiently. It is submitted that the averments made in the affidavit filed in support of the delay condonation application are not substantiated by any documentary evidence and thus, no case for condonation of delay has been made out.
6. I have considered the rival submissions of the parties and perused the record.
7. The wife of claimant/respondent no.1 had died in the accident and as the appellants were running short of funds, the appeal could not be filed in time. Further, it is common knowledge that pandemic of COVID-19 had gripped the whole country in the year 2020 which continued till the mid of 2022, and the Apex Court in Suo Motu Writ Petition (Civil) No.3 of 2020 has excluded the period of pandemic COVID-19 for the purposes of limitation.
8. In such view of the fact, this Court finds that the appellants have sufficiently explained the delay in filing the appeal and delay in filing the appeal is bona fide.
9. Consequently, the delay in filing the appeal is condoned and the appeal shall be treated to have been filed in time.
10. The Delay Condonation Application No.1 of 2022 is allowed.
11. Office is directed to allot regular number to the appeal.
Order on Appeal.
1. Heard learned counsel for the claimants/appellants and learned counsel for the respondents.
2. The claimants/appellants being dissatisfied with the quantum of compensation have preferred the present appeal with a prayer for enhancement of compensation.
3. Learned counsel for the claimants/appellants has contended that the accident had taken place on 09.06.2017 and the deceased was engaged in dairy business and was used to earn Rs.6,000/- per month. It is contended that deceased was a lady and considering the contribution of lady in running a family, the loss of dependancy upon the family cannot be less than what has been in case of death of skilled labour, and even if there was no proof of income of the deceased, the Tribunal ought to have computed the compensation treating the income of the deceased as Rs.6,000/- per month in place of Rs.4,000/- per month in view of the judgement of Apex Court in the case of Magma General Insurance Company Ltd. Vs. Nanu Ram alias Chuhru Ram and others 2018 (18) SCC 130 for the purpose of computation of compensation. It is further submitted that no amount towards future prospect has been awarded by the Tribunal whereas, considering the age of the deceased, claimants/appellants are entitled to 40% towards future prospect in view of the judgement of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680. Lastly, it is submitted that a very meagre amount of Rs.30,000/- has been awarded by the Tribunal towards pain and suffering, funeral expenses and loss of consortium whereas, claimants/appellants are entitled to Rs.70,000/- towards the aforesaid heads in view of the judgement of Apex Court in the case of Pranay Sethi (supra).
4. Per contra, learned counsel for the respondents submits that compensation awarded by the Tribunal is just and proper and hence, the same does not call for interference by this Court in the appeal. He further contends that considering the age of the deceased, Tribunal should have applied the multiplier of 17 instead of 18 for computing the compensation in view of the judgment of Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 (6) SCC 121.
5. I have considered the rival submissions of the parties and perused the record.
6. The Apex Court in the case ofMagma General Insurance Company (supra) has held the notional income to be Rs.6,000/- per month and thus, accepting the submission of learned counsel for the claimants/appellants in view of the judgement of Apex Court in the case ofMagma General Insurance Company (supra), this Court directs the Tribunal to recompute the compensation treating the income of the deceased to be Rs.6,000/- per month for the purpose of computation of compensation.
7. The submission of learned counsel for the claimants/appellants in respect of future prospect and grant of non-pecuniary damages has got force in view of the judgement of Apex Court in the case of Pranay Sethi (supra) and thus, following the aforesaid judgement of Apex Court, claimants/appellants, considering the age of the deceased, are entitled to 40% towards future prospect, and further claimants/appellants are also entitled to non-pecuniary damages of Rs.70,000/- instead of Rs.30,000/- and accordingly, non-pecuniary damages awarded by the Tribunal is enhanced from Rs.30,000/- to Rs.70,000/-.
8. The submission of learned counsel for the respondents that considering the age of the deceased Tribunal should have applied the multiplier of 17 instead of 18 has got substance in view of the judgement of Apex Court in the case of Sarla Verma (supra). Accordingly, this Court holds that enhanced amount of compensation should be calculated by applying the multiplier of 15 instead of 16.
9. It is also provided that enhanced amount of compensation shall carry 6% simple interest from the date of institution of claim petition till its payment.
10. For the reasons given above, the appeal is partly allowed and award of the Tribunal is modified to the extent as indicated above. The insurance company is directed to pay the enhanced amount of compensation to the claimants/appellants within a period of three months from the date of production of certified copy of this order. There shall be no order as to cost.
Order Date :- 6.12.2022
Sattyarth
