Smt. Geeta Yadav And Others vs Prem Roadways Registered And ...
2022 Latest Caselaw 3231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 
Case :- FIRST APPEAL FROM ORDER No. - 4038 of 2012
 
Appellant :- Smt. Geeta Yadav And Others
 
Respondent :- Prem Roadways Registered And Another
 
Counsel for Appellant :- S.D. Yadav
 
Counsel for Respondent :- Rahul Sahai
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per K.J. Thaker, J.)

1. Heard Sri S.D. Yadav, learned counsel for the appellants-claimants and Sri Aditya Singh Parihar, learned Advocate appearing for Sri Rahul Sahai, learned counsel for the respondent-Insurance Company. None has appeared for the respondent-owner of the offending vehicle.

2. By way of this appeal, the appellants-claimants, have challenged the judgment and order dated 9.8.2012 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.14, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C. No.299 of 2011 awarding compensation of Rs.3,69,500/- with interest at the rate of 6% simple interest till amount is deposited.

3. Brief facts as culled out from the record are that on 18.10.2009 at about 1.00 p.m. a bus bearing No.PB-3 H 9581 which was coming from Barnala side dashed the Motorcycle of the deceased bearing No.UP 71 E 2269 from behind. It has been averred that the bus was being driven by its driver rashly and negligently and even without blowing horn. The accident caused grievous injuries to deceased-Kaushal Kishore who has succumbed to the injuries in Military Hospital, Bhatinda Cantt.

4. Consequent upon the death of the deceased, the widow of the deceased along with three others filed claim petition before the Tribunal claiming compensation of Rs.88,00,000/- with interest at the rate of 10%. The Tribunal has framed four issues and held driver of the offending vehicle solely negligent for the accident having taken place. As far as compensation is concerned, the Tribunal has considered the income of the deceased to be Rs.3,000/- per month though it was proved that he was in service of Armed Forces, deducted 1/3rd towards personal expenses of the deceased, applied multiplier of 15 and granted Rs.9500/- under non pecuniary heads.

5. It is submitted by learned counsel for the appellants that the deceased was Havildar in Indian Army and was earning Rs.27,000/- per month, his salary certificate was placed on record vide Ex.39 Ga which was disbelieved by the Tribunal. It is stated that this finding of the Tribunal is perverse and is required to be upturned as the reasoning given for not believing the said documents show lack of holistic approach expected of a Motor Accident Claims Tribunal.

6. It is further submitted by learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income of the deceased which is required to be granted. It is submitted that the deduction towards personal expenses of the deceased should be 1/4th as the deceased was survived by his widow, a minor son and aged parents. It is further submitted that the deceased being in the age bracket of 31-35, multiplier of 16 should be granted.

7. It is lastly submitted by learned counsel for the appellants that the amount under non-pecuniary heads and the interest awarded by the Tribunal is on the lower side and are required to be enhanced.

8. Learned counsel for the appellants has relied on the decision of the Division Bench of this Court in First Appeal From Order No. 1118 of 2009 (Smt. Nasreen Jahan and Others v. Km. Garima Pandey) decided on 2.8.2017 and on the decision of the Apex Court in Sunita and Others vs. Rajasthan Road Transport Corporation and Anr., 2019 (1) T.A.C. 710 so as to contend that the reasoning for non consideration of documentary evidence for income of the deceased is opposed to the reasoning given in the aforesaid decisions.

9. As against this, the Insurance Company has also challenged the judgment and order impugned by way of oral cross objection as far as negligence and compensation awarded are concerned and it is submitted that in view of the decision in F.A.F.O. No.2389 of 2016 (National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016 and under Section 173 of Motor Vehicles Act, 1988, this Court is under obligation to decide the same. The ground of cross objection is that the deceased was also the co-author of the accident and, hence, the finding of the Tribunal holding the driver of the bus to be solely negligent is erroneous and is required to be upturned.

10. It is also submitted by learned counsel for the respondent-Insurance Company that the income which has not been proved by cogent evidence has rightly not been considered by the Tribunal. It is further submitted that the quantum of compensation awarded by the Tribunal is just and proper and does not call for any interference of this Court as the income was rightly not proved by leading cogent evidence. The documents being not public document have rightly not been relied by the Tribunal and there is no cogent reason to enhance the compensation.

11. Before adverting to the issue of compensation awardable, it would be necessary to decide the oral cross objection relating to contributory negligence of the drivers involved in the accident. While dealing with submission on issue of negligence raised by the learned counsel for respondent-Insurance Company, it would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.

12. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental though it is normally accidental. Negligence connotes reckless driving and the injured must always prove that the other side is negligent. If the injury or death is caused by something owned or controlled by the negligent party then he is directly liable, otherwise, the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply which depends on facts of each case.

13. The principle so as to consider a driver to be contributor to accident has been discussed time and again. A person who either contributes or is co author of the accident would be liable for his contribution to the accident having taken place and that amount will be deducted from the compensation payable to him if he is injured and to his legal representatives if he dies in the accident.

14. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :

"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.

17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.

18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.

19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.

20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.

21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).

22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."

emphasis added

15. In Archit Saini and Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143 the finding of the Tribunal was upheld by adverting to the same, more particularly, the Apex Court has upheld the finding in paragraph 21 to 27 in its judgment. The paragraph 5 of the said Apex Court's judgment is reproduced hereinbelow:

"5.The respondents had opposed the claim petition and denied their liability but did not lead any evidence on the relevant issue to dispel the relevant fact. The Tribunal after analysing the evidence, including the site map (Ext. P-45) produced on record along with charge-sheet filed against the driver of the Gas Tanker and the arguments of the respondents, answered Issue 1 against the respondents in the following words:

"21. Our own Hon'ble High Court in a case captioned Lakhu Singh v. Uday Singh [Lakhu Singh v. Uday Singh, 2007 SCC OnLine P&H 865 : PLR (2007) 4 P&H 507] held that while considering a claim petition, the Tribunal is required to hold an enquiry and act not as criminal court so as to find whether the claimants have established the occurrence beyond shadow of any reasonable doubt. In the enquiry, if there is prima facie evidence of the occurrence there is no reason to disbelieve such evidence. The statements coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arrive at a conclusion that the accident has taken place. Likewise, in Kusum Lata v. Satbir [Kusum Lata v. Satbir, (2011) 3 SCC 646 : (2011) 2 SCC (Civ) 37 : (2011) 2 SCC (Cri) 18 : (2011) 2 RCR (Civil) 379] the Hon'ble Apex Court has held that in a case relating to motor accident claims, the claimants are not required to rove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.

22. After considering the submissions made by both the parties, I find that PW 7 Sohan Lal eyewitness to the occurrence has specifically stated in his affidavit Ext. PW 7/A tendered in his evidence that on 15-12-2011 at about 20.30 p.m. he along with PHG Ajit Singh was present near Sanjha Chulha Dhaba on the National Highway leading to Jammu. All the traffic of road was diverted on the eastern side of the road on account of closure of road on western side due to construction work. In the meantime a Maruti car bearing No. HR 02 K 0448 came from Jammu side and struck against the back of Gas Tanker as the driver of the car could not spot the parked tanker due to the flashlights of the oncoming traffic from front side. Then they rushed towards the spot of accident and noticed that the said tanker was standing parked in the middle of the road without any indicators or parking lights.

23. The statement of this witness clearly establishes that this was the sole negligence on the part of the driver of the Gas Tanker especially when the accident was caused on 15-12-2011 that too at about 10.30 p.m. which is generally time of pitch darkness. In this way, the driver of the car cannot be held in any way negligent in this accident. Moreover, as per Rule 15 of the Road Regulations, 1989 no vehicle is to be parked on busy road.

24. The arguments of the learned counsel for the respondent that PW 7 Sohan Lal has stated in his cross-examination that there was no fog at that time and there were lights on the Dhaba and the truck was visible to him due to light of Dhaba and he was standing at the distance of 70 ft from the truck being road between him and the truck and he noticed at the car when he heard voice/sound caused by the accident so Respondent 1 is not at all negligent in this accident but these submissions will not make the car driver to be in any way negligent and cannot give clean chit to the driver of the Gas Tanker because there is a difference between the visibility of a standing vehicle from a place where the person is standing and by a person who is coming driving the vehicle because due to flashlights of vehicles coming from front side the vehicle coming from opposite side cannot generally spot the standing vehicle in the road that too in night-time when there is neither any indicator or parking lights nor blinking lights nor any other indication given on the back of the stationed vehicle, therefore, the driver of the car cannot be held to be in any way negligent rather it is the sole negligence on the part of the driver of the offending Gas Tanker as held inGinni Devi case [Ginni Devi v. Union of India, 2007 SCC OnLine P&H 126 : 2008 ACJ 1572] , Mohan Lal case [New India Assurance Co. Ltd. v. Mohan Lal, 2006 SCC OnLine All 459 : (2007) 1 ACC 785 (All)] . It is not the case of the respondent that the parking lights of the standing truck were on or there were any other indication on the backside of the vehicle standing on the road to enable the coming vehicle to see the standing truck. The other arguments of the learned counsel for Respondent 3 that the road was sufficient wide road and that the car driver could have avoided the accident, so the driver of the car was himself negligent in causing the accident cannot be accepted when it has already been held that the accident has been caused due to sole negligence of the driver of the offending stationed truck in the busy road. The proposition of law laid down in Harbans Kaur case [New India Assurance Co. Ltd. v. Harbans Kaur, 2010 SCC OnLine P&H 7441 : (2010) 4 PLR 422 (P&H)] and T.M. Chayapathi case [New India Assurance Co. Ltd. v. T.M. Chayapathi, 2004 SCC OnLine AP 484 : (2005) 4 ACC 61] is not disputed at all but these authorities are not helpful to the respondents being not applicable on the facts and circumstances of the present case. Likewise, non-examination of minor children of the age of 14 and 9 years who lost their father and mother in the accident cannot be held to be in any way detrimental to the case of the claimants when eyewitness to the occurrence has proved the accident having been caused by the negligence of Respondent 1 driver of the offending vehicle.

25. Moreover, in Girdhari Lal v. Radhey Shyam [Girdhari Lal v. Radhey Shyam, 1993 SCC OnLine P&H 194 : PLR (1993) 104 P&H 109] , Sudama Devi v. Kewal Ram [Sudama Devi v.Kewal Ram, 2007 SCC OnLine P&H 1208 : PLR (2008) 149 P&H 444] andPazhaniammal case [New India Assurance Co. Ltd. v. Pazhaniammal, 2011 SCC OnLine Ker 1881 : 2012 ACJ 1370] our own Hon'ble High Court has held that ''it is, prima facie safe to conclude in claim cases that the accident has occurred on account of rash or negligent driving of the driver, if the driver is facing the criminal trial on account of rash or negligent driving.'

26. Moreover, Respondent 1 driver of the offending vehicle has not appeared in the witness box to deny the accident having been caused by him, therefore, I am inclined to draw an adverse inference against Respondent 1. In this context, I draw support from a judgment of the Hon'ble Punjab & Haryana High Court reported asBhagwani Devi v. Krishan Kumar Saini[Bhagwani Devi v. Krishan Kumar Saini, 1986 SCC OnLine P&H 274 : 1986 ACJ 331] . Moreover, Respondent 1 has also not filed any complaint to higher authorities about his false implication in the criminal case so it cannot be accepted that Respondent 1 has been falsely implicated in this case.

27. In view of above discussion, it is held that the claimants have proved that the accident has been caused by Respondent 1 by parking the offending vehicle bearing No. HR 02 AF 8590 in the middle of the road in a negligent manner wherein Vinod Saini and Smt Mamta Saini have died and claimants Archit Saini and Gauri Saini have received injuries on their person. Shri Vinod Saini, deceased who was driving ill-fated car on that day cannot be held to be negligent in any way. Accordingly, this issue is decided in favour of claimants."

(emphasis supplied)"

16. It is submitted that by Sri Rahul Sahai, learned counsel for the respondent assisted by Sri Aditya Singh Parihar, learned Advocate that the deceased was driving the vehicle in middle of the road and did not give side to the bus coming from behind and the so called eye-witness could not be believed and, thence, finding of negligence requires to be interfered with.

17. The F.I.R. categorically goes to show that the bus dashed the deceased from behind who was going ahead of bus on his Motorcycle which resulted into instantaneous death of the deceased. On perusal of the F.I.R., charge-sheet and the site plan, we do not find any perversity in the finding of the Tribunal as far as negligence is concerned.

18. We are also supported in our finding by the decisions in (a) Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9., (b) Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768; (c) Anita Sharma v. New India Assurance Co. Ltd. (2021) 1 SCC 171 and on the decision of Madras High Court. The decision in Madras High Court in Reliance General Insurance Co. Ltd. Vs. Subbulakshmi and Others, passed in C.MA. No. 1482 of 2017 [C.M.P. No. 7919 of 2017. (CMA Sr. No. 76893 of 2016)] and the decision referred in the said case namely Puspabai Purshottam Udeshi Vs. Ranjit Ginning and Pressing Co., 1977ACJ 343 (SC).

19. It is a fact that charge-sheet was filed against the driver of the bus and neither the driver nor the owner of bus has stepped into the witness box so as to prove that the deceased had contributed to the accident having taken place. The finding of fact by Tribunal on the basis of evidence goes to show that the bus dashed the scooter from behind, dragged the scooterist and then crossed and went on otherside of railing.

20. As per road safety it is obligatory on a vehicle coming from behind to be more careful and cautious. Here the driver of bus has not followed this basic rule. These cumulative facts will not permit us to take a different view then that taken by the Tribunal as far as finding of negligence is concerned.

21. In view of the above, the cross objection of respondent-Insurance Company cannot be accepted and cannot succeed. We are also supported in our view on the decisions in (a) Renu Rani Shrivastava Vs. New India Assurance Co. Ltd., 2019 (0) AIJEL-SC 65364, (b) Jumani Begam Vs. Ram Narayan, 2019 (0) AIJEL-SC 65571, (c) Nishan Singh Vs. Oriental Insurance Company Ltd., 2018 (0) AIJEL-SC 62197.

Compensation :

22. This takes us to the issue of quantum of compensation awarded. The deceased, according to learned counsel for the appellant, was serving in Indian Army as Havildar and was earning Rs.27,000/- per month. The Tribunal has disbelieved the salary certificate Ex. 39 Ga issued by Captain, Record Officer, Topkhana Abhilekh, Artillery Records, Nasik Road Camp holding that the said document has not been proved by the claimants by examining the Issuing Authority of the salary slip. This finding of the Tribunal is bad as the Tribunal under Section 169 of the Motor Vehicles Act, 1988 should have called the authority who has issued salary certificate to testify the authenticity of the said document. Section 169 of the Act, 1988 reads as under :

"169. Procedure and powers of Claims Tribunals.--

(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry."

23. Recently this Court in F.A.F.O. No. 2019 of 2021 (Akhilesh Kumar Anand Vs. Rahul Mishra and Another), vide order dated 18.4.2022 has held as follows:-

"11. The Apex court decision in Anita Sharma Vs. New India Assurance Company Ltd, 2021 (1) SCC 171 and Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186, has held that strict proof of all facts is not necessary to decide the motor accident claim petition. The Tribunal should take the holistic view of the matter and the claimant has to establish his/her case on the touchstone of preponderance of probability.

12. The Division Bench of Madhya Pradesh High Court in Reliance General Insurance Co. Ltd. Vs. Subbulakhmi and others passed in CMA No. 1482 of 2017 has also expressed the same view with regard to the standard of proof.

13. In Bimla Devi and others Vs. Himanchal Road Transport Corporation and others 2009 (2013) SCC 530, also the Apex Court held that the claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.

14. Learned Tribunal has discarded the documentary evidence, filed by the appellant with regard to the salary of the deceased. Learned Tribunal could have invoked the powers under Section 169 of the Motor Vehicle Act, 1988, which gives claims Tribunal all the powers of Civil Courts for the purpose of taking evidence, and enforcing the attendance of the witnesses and compel the discovery and proof of documents and material objects. If the learned Tribunal wanted to get the salary certificate and payment register to be proved, it could have suo moto summoned the concerned employee of the school with original record because it is the duty of the Tribunal to award 'just compensation'."

24. The Tribunal, on one hand, has recorded that the Department where the deceased was serving, there must be provision of pension and compassionate appointment and on the other hand has not believed the document issued by the said department. This is nothing else but perversity has percolated in the finding of the Tribunal. The word 'perversity' is too mild for the reasoning given by the Tribunal as far as income of deceased is concerned.

25. Finding of the Tribunal is perverse as Tribunal itself has held that the deceased was on the post of Havildar in Indian Army and was earning Rs.27,000/- per month. The documentary evidence is at Exhibit 49 and his PAN Card is at Exhibit 40 Ga/11. He was also having a vehicle, he was also having driving license which was produced as Exhibit 40 Ga/10. The xerox copies were believed for the purpose of considering the age of the deceased to be 30 years and 7 months. The medico legal documents, unfortunately, was discussed by the Tribunal and the Tribunal has considered that as none has objected to the same, the Tribunal has considered the same.

26. The Tribunal has not believed the salary certificate as the same was not orally proved by the Officer who had issued the same despite the fact that wife of the deceased (now widow) had opined that the salary was credited to his husband in his bank account. Learned Tribunal has held that she was not present when the salary certificate which was produced was signed and, therefore, it has not believed the same. It was stated by her that she did not know whether her husband was an Income Tax Payee or not. The Tribunal further holds that there is family pension being paid to her. The claim petition was under Section 166 and not Section 163A of the Act, 1988. Despite that, the Tribunal has considered the income of the deceased to be Rs.3,000/- per month which was that of a labourer. The Tribunal did not grant any amount under the head of future loss of income. The Tribunal did not discuss why it has considered multiplier of 15 instead of 17 and did not even discuss why it has not granted any amount under the head of future loss of income. The judgment itself is vulnerable. The decision referred herein before would permit us to interfere with the decision of the Tribunal for the reasons that (a) no proper reasons have been given showing why income of deceased has been considered to be that of a labourer, (b) why has the salary certificate been rejected without cogent reasons, (c) no reasons have been given for non grant of future loss of income despite the decision of Sarla Verma (Supra) & (d) non consideration of judgments in Anil Khoshla v. Mahesh Kumar and others, 2011 (1) T.A.C. 250 (DEL) and Smt. Mithilesh Mishra v. Ajay Kumar, 2012 (3) T.A.C. 45 (All.). These findings cannot stand reasoning. These surmises shows the over zeal of the Tribunal to grant what can be said to be just compensation.

27. Therefore, we consider the income of the deceased to be Rs.27,000/- per month. Out of which, the only deduction permissible would be Income Tax i.e. Rs.2,000/- per month. To which, as the deceased was below 40 years, 50% be added towards future loss of income in view of the decision in National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093. The later judgments could have been applied but it is not proved as to what would have been actual income in future of deceased. Thus, thumb rule of addition of future prospects is applied. The deceased being in the age bracket of 31-35 years of age, the multiplier applicable would be 16 in view of the decision in Sarla Verma and others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC). The deduction towards personal expenses of the deceased would be 1/3rd as he had three persons dependent on the deceased. The family would be entitled to Rs.70,000/- plus 10% rise in every three year in view of the decision in Pranay Sethi (Supra), we round up this figure to Rs.1,00,000/-.

28. Hence, the total compensation payable to the appellant is computed herein below:

i. Monthly Income: Rs.25,000/-

ii. Percentage towards future prospects : 50% namely Rs.12,500/-

iii. Total income : Rs.25,000 + 12,500 = Rs.37,500/-

iv. Income after deduction of 1/3rd towards personal expenses : Rs.25,000/-

v. Annual income : Rs.25,000 x 12 = Rs.3,00,000/-

vi. Multiplier applicable : 16

vii. Loss of dependency: Rs.3,00,000 x 16 = Rs.48,00,000/-

viii. Amount under non pecuniary heads : Rs.1,00,000/-

ix. Total compensation : Rs.49,00,000/-

29. 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."

30. In view of the above, the appeal is allowed. Cross objection filed by respondent-Insurance Company is dismissed. Award and order passed by the Tribunal is modified to the aforesaid effect. The Insurance Company shall deposit the amount within 12 weeks from today with interest as awarded herein above. The amount already deposited be deducted from the amount to be deposited.

31. 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 of amount be passed by Tribunal..

32. 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. The said decision has also been reiterated by High Court Gujarat in R/Special Civil Application No.4800 of 2021 (The Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS) decided on 5.4.2022.

33. 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.

34. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. 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.

35. A copy of this order be kept on the dossier of the learned Judge by the High Court as we feel that the judgment and award impugned is not in consonance with the facts of the case. We request the learned Registrar General to circulate this judgment to the Motor Accident Claims Tribunals in State of U.P. to see that in future they may not commit such glaring mistakes which increases the burden of the High Court.

Order Date :- 18.5.2022

DKS