Allahabad High Court
Smt. Pushpa Gupta And Anr. vs Regional Manager Shri Ram General ... on 10 April, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 20
Case :- FIRST APPEAL FROM ORDER No. - 1002 of 2015
Appellant :- Smt. Pushpa Gupta And Anr.
Respondent :- Regional Manager Shri Ram General Insurance Co.Ltd. & Ors.
Counsel for Appellant :- Sanjay Kumar Srivastava
Counsel for Respondent :- Dinesh Kumar
Hon'ble Jaspreet Singh,J.
1. Heard Sri Sanjay Kumar Srivastava, learned counsel for the appellants and Sri Dinesh Kumar, learned counsel for the respondent no.1.
2. The instant appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 seeking enhancement of the award dated 31.08.2015 passed by the Motor Accident Claims Tribunal / District Judge, Sultanpur in Claim Petition No.113 of 2012 (Smt. Pushpa Gupta and another Vs. Ajay Kumar Singh) wherein on account of motor accidental death of Sri Harish Kumar Gupta, a sum of Rs.85,814/- has been awarded alongwith seven percent interest to the claimants.
3. The submission of learned counsel for the appellants is two fold:-
I) That the tribunal has erred in apportioning 20% of the liability on the deceased, holding him to have contributed to the alleged accident. Whereas, there was clear evidence to the effect that the accident was solely caused on account of rash and negligent driving of the offending truck bearing no. UP 44 T 1148. It is also submitted that the basis of recording a finding against the appellants on account of contributory negligence is the site plan which was furnished alongwith the charge sheet prepared by the police officers while investigation. It is submitted that mere site plan cannot be made the basis of holding contributory negligence in absence of any other corroborative evidence. In the instant case, it was clearly established by the evidence of two witnesses including the appellant no.1 who was in the car in question at the time when the accident occurred and another eye witness Chandrajeet Yadav that the accident occurred on account of rash and negligent driving of the offending truck. It is thus submitted that the finding of contributory negligence recorded by the tribunal is erroneous and deserves to be set aside.
II) The other submission of the learned counsel for the petitioner is that the tribunal has grossly erred while deducting the amount of pension received by the appellants from the compensation determined and this deduction is not permissible in law and thus there is a clear error committed by the tribunal.
It is also urged that the tribunal has failed to grant any non pecuniary damages on account of loss of estate, funeral expenses and loss of consortium and in the aforesaid circumstances, the award requires to be enhanced apart from the fact that the interest which has been awarded is also on the lower side.
4. Per contra Sri Dinesh Kumar, learned counsel for the respondent no.1 while controverting the aforesaid submissions submits that it was a clear case of contributory negligence and one of the witnesses being interested witness, her testimony could not have been treated to be sacrosanct and the manner in which the accident has occurred, it clearly indicated the negligence of the car driver and for the aforesaid reason 20% has been apportioned on the car driver, which cannot be said to be erroneous. Learned counsel for the insurance company, however, fairly conceded that insofar as the deduction of the pension is concerned, the same is clearly not permissible and is also against the settled principles of law as laid down by the Apex Court and he further submits that the non pecuniary benefits have been crystallized by the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others; (2017) 16 SCC 1050, accordingly, in view thereof the Court may redetermine the compensation.
5. Having heard learned counsel for the parties and from perusal of material on record, there are certain brief facts which are relevant to be noticed for adjudication of the controversy involved in the instant case.
6. It is the case of the appellants that on 28.10.2011 at around 09:00 PM, the deceased was driving his Alto car wherein appellant no.1 was also traveling with him from Jaunpur to Sultanpur on Jaunpur-Sultanpur Road and as the said car reached Giri Dhaba, in Village Bedupara, at that time a truck bearing no. UP 44 T 1148 which was being driven rashly and negligently by the respondent no.3 Jaglal Yadav came on the wrong side and dashed against the car wherein the husband of the appellant no.1, namely, Harish Kumar Gupta suffered grievous injuries which led to his death. Other occupants of the car, which included appellant no.1, Pushpa Gupta, Anurag Singh, Anand Kumar and Reena also sustained injuries, who were taken to the hospital. It is in this context that the claim petition was filed which was registered as C.P. No.113 of 2012.
7. The claim petition came to be contested by the owner as well as driver of the offending truck. It was said that the said truck was duly insured with Sri Ram General Insurance Company Limited who is the respondent no.1 before this Court. The plea was taken by the respondent i.e. the truck driver and the owner that there was no negligence on part of the truck driver rather one tanker which was also plying on the said road, on account of a tyre burst, hit the truck bearing no. UP 44 T 1148 as a result the tyre of this truck got dislodged and the truck got disbalanced, as a result the car being driven by Sri Harish Kumar Gupta coming from the opposite direction hit the said truck which caused the accident. It was also pleaded that the truck driver did posses the requisite driving license. It was also pleaded that if at all any compensation is awarded, the same shall be serviced and paid by the insurance company.
8. Upon the exchange of pleadings, the tribunal framed five issues, however, two relevant issues for the purposes of adjudication of the instant appeal were regarding the contributory negligence as well as the extent of compensation to be paid to the appellants. The parties led their respective evidences both oral and documentary and the tribunal while dealing with issue no.1 and 4 together. While determining as to who was responsible for the accident, to say whether the accident occurred in the manner as stated by the claimants or as indicated by the truck owner and driver that a tanker had hit the truck in question which in turn caused the accident and the other component was to determine as to whether the car being driven by Sri Harish Kumar Gupta also contributed to the accident.
9. The tribunal noticing that on behalf of the claimants, the appellant no.1, Smt. Pushpa Gupta was examined as witness, who was traveling in the car alongwith her husband and she clearly deposed before the tribunal that the accident occurred on account of negligent driving of the truck driver. The version as presented by the truck driver was reiterated when the respondent no.3, Jaglal Yadav appeared in the witness box and supported his version. The trial court concluded that since both, the appellant no.1 as well as the respondent no.3, were interested witnesses and in their cross examination nothing adverse could be elicited apart from the fact that they both corroborated their versions hence complete reliance on their testimony was not appropriate. The tribunal further recorded that another eye witness, namely, Chandrajeet Yadav, who is an independent witness and was standing at side of the road and had witnessed the said accident, clearly deposed that the accident was an outcome of negligent driving of the truck bearing no. UP 44 T 1148. After having noticed the aforesaid, the tribunal went a step further and also determining the role of the car, relied upon the site plan prepared by the Investigating Officer and found that though large part of the negligence was that of the truck driver but since the car owner was also not exactly on the left side of the road, it appears that he was also negligent and in this view of the matter, it recorded a finding that both the truck driver as well as the car driver contributed to the accident while the major liability would lie on the truck driver apportioning 80% of the liability and 20% was apportioned on the car driver.
10. The tribunal thereafter while dealing with the issue no.5 found that the age of the deceased was about 50 years and was a government servant drawing the salary of Rs.25,201/- per month, it appropriately took the said income as the base and after deducting 1/3rd for the dependency and adopting the multiplier of 11, came to the conclusion of awarding a sum of Rs.2,01,608/-, however, the tribunal also took the view that since the appellant no.1 was drawing a pension on account of death of her husband, therefore, the amount received by her as pension be deducted and it is thereafter awarded a sum of Rs.85,814/- alongwith 7% interest. It is in view thereof that the award dated 31.08.2015 is under challenge before this Court.
11. Considering the submissions made by learned counsel for the appellants, this Court finds that insofar as the issue of contributory negligence is concerned, the tribunal has merely relied upon the site plan which is available on record. The tribunal noticed that while the truck was initially on its right side but at the point of the accident, it was much more on the right side of the road after having passed the center line. It also noticed that as per site plan the car was also on its correct side but at the point of the accident, it was slightly on the right side. The manner in which the trial court has considered this issue of contributory negligence does not inspire confidence inasmuch as the site plan could not be made the basis of recording the finding of contributory negligence. There ought to have been other corroborative evidence available on record to enable the tribunal to arrive at such a finding.
12. In the instant case, it would be noticed that apart from the appellant no.1, who was also traveling in the car and had witnessed the accident and she had clearly deposed that the car was on its correct side, whereas the offending truck bearing no. UP 44 T 1148 had digressed from its side and coming on the right side of the road, hit the offending car from the opposite direction. This fact was also duly corroborated by the other eye witness, Sri Chandrajeet Yadav and the tribunal also came to the conclusion that there was no occasion to discard the testimony of Sri Chandrajeet Yadav. Once the statement of the claimant, namely, Pushpa Gupta and the eye witness Chardajeet Yadav had already established the issue of negligent driving by the truck driver, coupled with the fact that even if at all the tribunal may have been cautious in assessing the testimony of the appellant no.1 but the fact remains that the version stood fully corroborated by the independent eye witness and, therefore, ignoring the same, a finding could not have been recorded to the contrary merely on the basis of site plan that too when the site plan was not proved. Since there was no other witness which had raised the issue or could have corroborated the factum of contributory negligence, this Court finds that the finding recorded by the tribunal apportioning 20% liability on car owner is absolutely erroneous and this Court is fortified in this view in light of the decision of the Apex Court in the case of Jiju Kuruvila & Ors vs Kunjujamma Mohan & Ors; (2013) 9 SCC 166.
13. Now coming to the other issue which has been raised regarding deduction of the pension from the compensation amount, as already noticed above Sri Dinesh Kumar, counsel for the insurance company had fairly stated that this course adopted by the tribunal is not all correct and is also against settled legal principles.
14. In this regard, this Court is reminded of the decision of the Apex Court in the case of Sebastiani Lakra vs. National Insurance Company Ltd., 2018 SCC Online Page 1924, wherein this issue came to be considered by the Court and it has been held as under:-
"13. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to ''just compensation' under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.
14. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures etc.. The tortfeasor cannot take advantage of the foresight and wise financial investments made by the deceased.
15. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted."
15. The aforesaid aspect has also been considered by Division Bench of this Court in the case of Geeta Singh and Ors. Vs. United India Insurance Co. Ltd. And Ors.; MANU/UP/1947/2016, which has been held as under:-
"19. In our view, a widow is entitled for family pension as per service condition of her deceased husband. Such benefit she is entitled to get even in case of natural death of her husband. The State Government gives the benefit of family pension to the heirs of its employee, under the terms and condition of service contract. Thus amount received as family pension has no co-relation with the accidental death. Thus according to us such amount is not liable to be deducted from the compensation amount, which the widow is entitled under the Motor Vehicles Act. In our view, if such amount will be deducted from the compensation granted under the Motor Vehicles Act, the same will amount to providing benefit to the torfeasor, which is not justified. Under the said circumstance, we are of the considered view that family pension to the tune of Rs.16,420/-, which the claimant No. 1 is receiving from the State Government, as per service condition of her deceased husband, is not liable to be deducted from the actual monthly income of the deceased. In that view of the matter, the aforesaid finding of the learned Tribunal cannot be sustained."
16. Considering the settled dictum of the Apex Court which has been followed by this Court including in the case of Renu Yadav Vs. Central Transport; (2019) SCCOnLine All 3752, it will be clear that the manner in which the tribunal has determined the compensation is grossly erroneous.
17. However, taking note of the fact that the income of the deceased was Rs.25,201/- per month and his age was 50 years, the appropriate multiplier would be of 11 to which the future prospects is to be added and making a deduction for dependency of 1/3rd and adding the non pecuniary benefits as stated by the Apex Court in the case of Pranay Sethi (Supra) and further explained by the Apex Court in the case of Magma General Insurance Company Ltd., vs. Nanu Ram, 2018 SCC OnLine SC 1546, this Court re-determines the compensation as under:-
A. Income = Rs. 25,201/- p.m.
B. Add: Future Prospect @ 40% = Rs. 10,080/- p.m.
C. Income: Income after adding
future prospect = Rs. 35281/- p.m.
D. Net income after deduction 1/3 = Rs. 23,521/- p.m.
Age = 50 years
Multiplier = 11
Thus compensation payable = Rs. 23,521 x 12 x 11 = 31,04,772/-
Conventional head of
consortium, funeral expenses
and loss of Estate = Rs. 70,000/-
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Thus, total compensation
payable shall be = Rs. 31,74,772/-
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18. In view of the aforesaid, the appeal is allowed. Subject to the aforesaid, the award dated 31.08.2015 passed in Claim Petition No.113 of 2012 shall stands modified. The appellants shall be entitled to the total compensation as re-determined by this Court. The appellants shall also be entitled to the interest on the aforesaid sum at the rate of 7% per annum from the date of the application till the date of payment. Any amount received by the appellants shall be adjusted from the aforesaid sum.
19. The respondent no.1 is directed to pay the outstanding sum in terms of this judgment to the appellants within a period of three months. In the aforesaid facts and circumstances, there is no order as to costs. The record of Tribunal be returned expeditiously.
Order Date :- 10.4.2023
Saurabh
