Smt. Ranjana Awasthi And 2 Ors. vs Sukhdeo Singh And 4 Ors.
2022 Latest Caselaw 4688 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on: 23.05.2022
 
Delivered on: 31.05.2022
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 572 of 2014
 

 
Appellant :- Smt. Ranjana Awasthi And 2 Ors.
 
Respondent :- Sukhdeo Singh And 4 Ors.
 
Counsel for Appellant :- O.P. Shukla
 
Counsel for Respondent :- Vijay Prakash Mishra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Ajai Tyagi, J)

1. Heard learned counsel for the appellants and learned counsel for the respondents. Perused the record.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 23.11.2013 passed by Motor Accident Claim Tribunal Agra/Additional District Judge, Court No.2, Varanasi (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.35 of 2012 awarding a sum of Rs.38,15,714/- with interest at the rate of 6% as compensation.

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is in dispute. The respondent concerned has not challenged the liability imposed on them and, therefore, issues decided by the tribunal other then grant of compensation have attained finality. The only issues to be decided are, (a) negligence and (b) quantum of compensation awarded.

4. The brief facts as culled out from the record are that appellants/claimants along with deceased Nalin Kumar Awasthi (husband of appellant No.1) were going to Kanpur Nagar from Varanasi on 05.11.2010 to visit their residence in a Maruti Wagon R Car No. UP 86 E 6838 alongwith minor son and daughter i.e. appellant nos. 2 and 3. When the appellant and the deceased reached near village Purgaon under Police Station Soraon, District Allahabad at Handi-Kanpur four lane bye pass at 6.30 a.m., a truck (offending vehicle) No. HR 38 M 6704 came from opposite side at a high speed and collided with the car of the appellants which was being driven slowly and carefully by the deceased Nalin Kumar Awasthi, due to such unfortunate event the Wagon R Car, which was going on its left side was badly damaged, all the appellants were seriously injured and the husband of appellant no.1 Nalin Kumar Awasthi died on the spot.

5. It is submitted by learned counsel for appellants that Tribunal has granted lump sum amount towards future loss of income of the deceased, i.e., Rs.5,00,000/- on the reasoning that Rule 220-A of U.P. Motor Vehicles Rules stipulates so which findings bad and against the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and U.P. Motor Vehicles Rules, 2011. It is further submitted that amount under non-pecuniary heads which is granted and the interest awarded by the Tribunal are on the lower side and requires enhancement. Learned counsel for appellants submitted that deceased was PCS Officer, namely Govt. employee, and was earning Rs.45,495/- per month. It is also submitted that as the deceased was looking after his wife, son, daughter and father, the deduction towards personal expenses of the deceased who was 42 years of age should be 1/4th. The multiplier has to be as per age of deceased, i.e., 42 years and multiplier of 15 as awarded by the tribunal is not in dispute. The tribunal has not assessed the future loss of income and it should be 30% of income as per U.P. Motor Vehicles Rules, 2011 and decision in Pranay Sethi (Supra) or actual future income by increase in Salary as per decision of Apex Court in Sri K.R. Madhusudhan and others Vs. Administrative Officer and another, (2011) 4 SCC 689.

6. Learned counsel for the respondent-Insurance company has submitted that the apportionment of contributory negligence is based on evidence on record. It is further submitted that compensation awarded by the Tribunal is just and proper and does not call for any enhancement as it is just compensation awarded. It is further submitted that on perusal of evidence it is proved that the accident occurred due to contribution of deceased as held by tribunal and no other reasoning or finding is necessary for conferring the said finding in absence to prove.

Issue of Negligence:-

7. While considering the finding of negligence, 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 which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather 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.

8. The principle of contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place.

9. 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."

10. The 10th Schedule appended to Motor Vehicle Act, 1988 contains 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.

11. The procedural provisions, 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.

12. 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, namely deceased or injured.

13. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence, whereas in the case of composite negligence, a person who has suffered would not have contributed to the accident having taken place but the outcome of combination of negligence of two or more other persons. It is only in the case of contributory negligence that the deceased or injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his negligence.

14. Learned tribunal has relied on the following judgments; (i) 2013 JCLR 138 Reliance General Insurance Company Ltd. v. Ravindra Singh; (ii) 2013 (2) JCLR 374 (All) New India Assurance Co. Ltd. v. Prabhavi Devi; and (iii) 2006 (1) TAC 969 (SC) Vijay Kumar Dongar v. Vidyadhar Datt to consider negligence

15. Looking to the factual scenario as it emerges for the reasons given by the tribunal, we cannot accept the submission of the counsel for appellant that deceased was not at all negligent. The findings as well finding qua as contributory negligence cannot be said to be perverse, except the fact that the bigger vehicle has to be held to be contributing 75% instead of 70%.

16. Having heard learned counsels for the parties and considered the factual data, the accident occurred on 05.11.2010 causing death of Nalin Kumar Awasthi who was also 42 years of age and left behind him his wife, son, daughter and father. The Tribunal has assessed the income of the deceased to be Rs.41,008/- per month is not just and proper, it requires to be enhanced. The income as decided by the tribunal requires interference by this Court. The tribunal has also committed error in not considering future prospects in its proper perspective by misinterpreting U.P. Motor Vehicle Rules and personal expenses of the deceased and granting multiplier of 15 as awarded by the tribunal need not requires to be enhanced as per age of the deceased. We are even fortified in our view by the following authoritative pronouncements.

(i) 2008 (3) TAC 661 (SC), Bhakra Base Management Board v. Kamla Agarwal and others;

(ii) 2013 (3) TAC 844 (All), Sunita Devi and others v. Vimal Diwedi and others

(iii) 2013 SAR (Civil) 594 SC, Rajesh and others v. Rajbir Singh and others

(iv) 2013 SAR (Civil) 584 SC, Vimal Kanwar and others v. Kishore Dan and others

(v) National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050;

(vi) Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121

(vii) Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011.

17. The tribunal has erred in not considering the income and future prospects as per settled legal principles and has misinterpreted Rule 220 of U.P. Motor Vehicles Rules, 2011. Looking to the income of deceased, his income is proved to be Rs.45,000/- p.m. without any deduction except Income Tax and deductible amounts, namely, Rs.3000/- per month would be deductible and same should be considered. The deceased was in age bracket of 40-50 years and he was being PCS Officer and in the judgment of Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830, the Hon'ble Apex Court held that it would be reasonable to say that a person who is a salaried person wages will also get 30% increase in his total income in view of the judgment of Supreme Court in Civil Appeal Nos.242-243, National Insurance Company Ltd v. Birender decided on 13.1.2020. Hence, 30% of the income will have to be added in view of the decision of the Apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Versus Susamma Thomas reported in 1993 (0) AIJEL- SC 9412 reiterated in Pranay Sethi (Supra). Looking to the general trend even in Gobald Motor Service Ltd. and another Vs. R.M.K Veluswami and other, 1962 SCR(1) 929, the addition of 30% can be granted. The tribunal even at the earliest judgment it would not be committed this fallacy.

18. Rule 220A of U.P. Rules, 1998 reads as under:

"220-A. Determination of compensation--

(1) The multiplier for determination of loss of income payable as compensation in all the claims cases shall be applied as per Second Schedule provided in the Act.

(2) Deduction for personal and living expenses of a deceased, shall be as follows--

(i) The deduction towards personal expenses of a deceased unmarried shall be 50% where the family of a bachelor is large and dependent on the income of the deceased, the deduction shall be 1/3 (33.33%).

(ii) The deduction towards personal and living expenses of a married person deceased shall be 1/3rd where dependent family members are 2 to 3 in number, 1/4th where dependent family members are 4 to 6 in number and 1/5th where dependent family members are more than 6 in number.

(3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under--

(i) Below 40 years of age 50% of the salary,

(ii) Between 40-50 years of age 30% of the salary,

(iii) More than 50 years of age 20% of the salary,

(iv) When wages not sufficiently proved 50% towards inflation and price index.

(4) The non-pecuniary damages shall also be payable in the compensation as follows--

(i) Compensation for loss of estate Rs. 5000 to Rs. 10,000.

(ii) Compensation for loss of consortium Rs. 5000 to 10,000.

(iii) Compensation for loss of love and affection Rs. 5000 to 15,000.

 
iv) Funeral expenses, costs of transportation of body
 
Rs. 5000 or actual expenses    whichever is less.
 
v) Medical expenses
 
actual expenses proved to the satisfaction of the Claims Tribunal. 
 
(5)     For determination of compensation in case of injuries, partial or permanent disability provisions of Second Schedule of the Act shall apply:
 

Provided that the Claims Tribunal may also award compensation for future prospects according to sub-rule (3) in case of permanent disability depending upon the nature, extent and its effect on the future of disabled claimants.

6) The rate of interest shall be 7% pendente lite and future till the actual payment."

19. In this backdrop we evaluate the income in view of the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and, the recalculation of compensation would be as follows:

i. Income Rs.42,000/- p.m. (Rs.45,000 - Tax of Rs.3000/- p.m.)

ii. Percentage towards future prospects : 30% namely Rs.12,600/-

iii. Total income : Rs. 42,000 + Rs. 12,600= Rs.54,600/-

iv. Income after deduction of 1/3: Rs.36,400/-

v. Multiplier applicable : 15 (as the deceased was in the age bracket of 41-45 years)

vi. Loss of dependency: Rs.36,400 x 15 = Rs.5,46,000/-

vii. Annual income = Rs. 5,46,000 x 12 =Rs.65,52,000/-

viii. Under the head of non pecuniary damages = Rs.1,00,000/-

ix. Total compensation : Rs.66,52,000/-.

20. 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 7 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."

21. The recent judgment of the Apex Court in Kurvan Ansari Alias Kurvan Ali Vs. Shyam Kishore Murmu, 2021 (0) AIJEL-SC 67995 will also have to be looked into.

22. We deem it fit to rely on the judgment of the Apex Court in the case of A.V. Padma and others Vs. R. Venugopal, 2012 (3) SCC 378 wherein the Apex Court has considered the judgment rendered in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas and others, AIR 1994 SC 1631.

23. 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 (supra), the order of investment is not passed because applicants /claimants are neither illiterate nor rustic villagers.

24. 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.

25. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount along with additional amount within a period of 12 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.

26. Record be transmitted to tribunal.

27. Recently the Gujarat High Court in case titled the Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No.4800 of 2021 decided on 05.04.2022, it is held that interest awarded by the tribunal under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act, 1961

28. 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 11 years have elapsed since occurrence of accident, the amount be deposited in the Saving Account of claimants in Nationalized Bank. The amount shall be credited in the said account without investment.

29. We are thankful to learned counsel for the parties for ably assisting this court in getting this old appeal disposed of.

Order Date :- 31.5.2022

A.N. Mishra