Allahabad High Court
Babunandan And Another vs Baggal Yadav And Others on 3 May, 2023
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Neutral Citation No. - 2023:AHC:117032
Court No. - 35
Case :- FIRST APPEAL FROM ORDER No. - 4050 of 2017
Appellant :- Babunandan And Another
Respondent :- Baggal Yadav And Others
Counsel for Appellant :- Sunil Kumar,Daya Shankar
Counsel for Respondent :- Ashok Kumar Srivastava,Pradeep Kumar Sinha
Hon'ble Ajay Bhanot,J.
I. INTRODUCTION:
1. The instant appeal arises out of an award made by the learned Motor Accident Claims Tribunal/Additional District Judge, Azamgarh1 in Motor Accident Claim Petition No. 04 of 2022 dated 01.02.2007 by partly allowing the claim of the claimants.
II. Case of the claimants and respondents before the learned tribunal:
2. Briefly the case of the claimants before the learned tribunal was that the deceased died of injuries sustained in an accident which occurred on 02.01.1998, and was caused by the rash and negligent driving of the driver of truck bearing Registration No. UP 52A/2047. The offending vehicle was insured by respondent no. 3-Insurance Company. On the fateful day, the deceased was returning his house from the school when he met with the accident. The claimants are the parents of the deceased Shyam Narayan. The deceased was 18 years of age at the time of his death.
III. Compensation awarded by the learned tribunal:
3. The learned tribunal in the impugned judgement dated 01.02.2007 awarded compensation which is depicted in the tabulated form hereunder:
Sr.No.
Heads
Amount Awarded by the tribunal
1.
Monthly Income
500/-
2.
Annual Income
6000/-
3.
Deduction towards personal expenses
1/3 of 6000= 2000
4.
Multiplier
5.
Total loss of dependancy
2000x11 = 22000/-
6.
Conventional Heads
(a) Loss of consortium
(b) loss of Estate
(c) Funeral Expenses
4500/-
7.
Total compensation
22000+4500= 26500-
8.
Interest
6%
4. The claimants seek enhancement of compensation by means of the instant appeal.
IV. Submissions of learned counsels for the parties:
5. Sri Daya Shankar, learned counsel for the claimants submits that the compensation was not rightly calculated. The learned tribunal erred in law and incorrectly calculated the income, applied an illegal multiplier and neglected to award future prospects which is in teeth of the law laid by Supreme Court in New India Assurance Co. Ltd. vs. Urmila Shukla and others2 as well as National Insurance Company Ltd. vs. Pranay Sethi and others3. The claimants were entitled to a higher amount.
6. Shri Pradeep Kumar Sinha, learned counsel for the Insurance Company does not satisfactorily dispute the said submissions.
V. Issue for Consideration:
7. After advancing their arguments, learned counsels for the respective parties agree that only the following question falls for consideration in these appeals:
Whether the learned tribunal erred while determining the compensation under these heads: income, future prospects, application of multiplier, conventional heads and interest? If yes, the amount to which the claimants are entitled?
VI. Issue of income of the deceased:
8. The question of income of a child while determining compensation to be paid is a vexed question of facts and law. In many cases the children are entirely dependant on their parents and are not earning. Moreover, even if they are earning, the documentary evidence to support such facts is hard to come by.
9. The Motor Vehicles Act bifurcates children into two categories, namely children below the age of 15 years and those above that age. In a former class, a notional income of Rs. 15,000/- per annum is stipulated in the statute. However, the sum was enhanced to Rs. 30,000/- per annum by various judicial authorities. Children above 15 years of age are treated as a separate class by the legislature. This is evident from the multiplier system in Schedule II of the Motor Vehicles Act read with Sarla Verma (Smt) and others Vs. Delhi Transport Company and another4 which govern calculation of income of a deceased child in the latter category.
10. The application of multiplier system to children above 15 years is a legislative recognition of the fact that while the children in that age group may not be actually earning and are dependant on their parents but they have achieved a certain employability potential. Employability potential comprises various skills acquired by children through formal education, informal modes or from the socio-economic environment which endows them with the capacity to earn or contribute to the family income. The employability potential grows with the age and is liable to be determined by factoring education, acquisition of vocational skills (may be hereditary),capacity to assist in households chores, etc. Employment potential becomes the basis of computation of income and grant of compensation in such cases.
11. The jurisprudential foundation of grant of compensation was laid by House of Lords in Taff Vale Rly. Vs. Jankins5, wherein the basis of grant of compensation was the expectation of pecuniary benefit and not the actual income which accrues to the deceased.
12. Lord Atkinson in Taff Vale (supra) set forth the legal position thus:
"...all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them."
13. Judicial authorities has cited earlier have fixed 30,000/- per annum as a notional income for grant of compensation in cases of death of minor children. [Ref: Meena Devi Vs. Nunu Chand Mahto @ Nemchand Mahto and others6].
14. While the sum fixed by Supreme Court in Meena Devi (supra) provides valuable guidance in many cases but cannot constitute a judicial standard to be applied as a rule of thumb without consideration of facts and circumstances of a case.
15. Meena Devi (supra) does not absolve the court of the duty to makes relevant enquiries into the facts and evidences to determine the income of the deceased minor child by examining employability potential in light of various factors discussed above.
16. The acquisition of skill is not dependant on a formal training or a certificate attesting such qualification. Skill can be acquired through various means and including informal ways. An environment where such skills are being exercised on a daily basis allows the child to imbibe such skills.
17. Overwhelming majority of our population is engaged in informal sectors of the economy. They do not have well documented evidence of their income. However, courts can apply credible yardsticks to determine the income in such cases. With acquisition of skills and knowledge the children can perform various activities which will fortify the family fortunes. This can take many forms like young students with bright academic records may take tuitions. A student who has developed vocational skills may contribute to the family income by doing related tasks. In addition children may also help out in household chores and agricultural activities.
18. Educational qualification of the deceased was established. His contribution to household chores was proved. These are germane factors to determine the employability potential and fixing the income of deceased.
19. The learned tribunal determined the income at Rs. 6000/- per annum. The finding is perverse. The learned tribunal erred in law by mechanically fixing the income, and failing to make relevant enquiries in this regard.
20. By virtue of his age and education, the deceased had attained a certain employment potentiality which was unlawfully neglected from consideration. The employment potentiality would be the minimum income which a person would draw from market based on his skills and environment.
21. The deceased being a young able bodied and educated adult of 18 years and he had the capacity to take tuitions or impart education to younger children. Hence he will come in the category of skilled worker.
22. In the facts of this case, a minimum wage of Rs.35,000/- per annum is just and equitable amount which can be considered as the income of the deceased.
VII. Future Prospects:
23. The future prospects are liable to be calculated in accordance with the Uttar Pradesh Motor Vehicles Rules, 19987. Rule 220A-3(iii) of the Rules is relevant and is reproduced hereunder:
"(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."
24. The UP Rules, 1998 came up for consideration before the Supreme Court in New India Assurance Co. Ltd. vs. Urmila Shukla and others8. In Urmila Shukla (supra) upon consideration of various judgements including National Insurance Company Ltd. Vs. Pranay Sethi and others9 held:
"10. The discussion on the point in Pranay Sethi was from the standpoint of arriving at "just compensation" in terms of Section 168 of the Motor Vehicles Act, 1988.
11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid." (emphasis supplied)
25. The Uttar Pradesh Motor Vehicles Rules, 1998 were not under consideration before the Supreme Court in Pranay Sethi (supra) or Sarla Verma (Smt) and others Vs. Delhi Transport Company and another10. Future prospects in Pranay Sethi (supra) were determined without noticing the U.P. Rules,1998. This fact was adverted to in Urmila Shukla (supra):
"8. It is submitted by Mr. Rao that the judgment in Pranay Sethi does not show that the attention of the Court was invited to the specific rules such as Rule 3(iii) which contemplates addition of 20% of the salary as against 15% which was stated as a measure in Pranay Sethi. In his submission, since the statutory instrument has been put in place which affords more advantageous treatment, the decision in Pranay Sethi ought not to be considered to limit the application of such statutory Rule."
26. The U.P. Rules,1998 are statutory in nature and their operation is not stymied by Pranay Sethi (supra). The U. P. Rules, 1998 have the force of law and shall apply with full force in appropriate cases. The U.P. Rules, 1998 are more beneficial for the claimants than the provisions made in Pranay Sethi (supra) for them. The holdings in Pranay Sethi (supra) can not dilute the advantages conferred by U.P. Rules, 1998 upon the eligible beneficiaries.
27. In this wake, this Court finds that the claimants/respondents are entitled to 50% enhancement in wages under the head of future prospects as contemplated in the UP Rules, 1998. The necessary changes in the award shall be accordingly made.
VIII. Application of Split Multiplier:
28. The age of the deceased was 18 years at the time of the accident. The applicable multiplier as per Sarla Verma (Smt) and others Vs. Delhi Transport Company and another11 read with Pranay Sethi (supra) is 18.
IX. Calculation of Conventional Heads:
29. The amount determined under conventional heads in the impugned award is at variance with Pranay Sethi (supra). The conventional heads were fixed in Pranay Sethi (supra) by holding as under:
"54. ......The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- funeral expenses should be Rs. 15,000/-, Rs. 40,000/- And Rs. 15,000/- respectively."
30. The figure under conventional heads determined in Pranay Sethi (supra) shall be applicable to the facts of this case. The award is modified accordingly.
X. Interest:
31. Interest of 7% and the manner of payment decided by the learned tribunal is just and lawful and does not call for interference.
XI. Determination of Compensation to which claimants are entitled:
32. In wake of the preceding discussion, the amount of compensation to which the claimants are entitled and are hereby awarded, is tabulated hereunder:
i. Date of Accident - 02.01.1998
ii. Name of Deceased - Shyam Narayan
iii. Age of the deceased - 18 years
iv. Occupation of the Deceased - Student
v. Income of the deceased - 35000/- per annum
vi. Name, Age and Relationship of Claimants with the deceased:
Sr. No.
Name
Age
Relation
1.
Babunandan
Father
2.
Pyari Devi
Mother
vii. Computation of Compensation
Sr. No.
Heads
Amount (in Rupees)
Annual Income (A)
Rs. 35000/-
2.
Future Prospects (B)
50% of 35000/-
= 17500/-
3.
Annual Income + Future Prospects
(A+B=C)
35000 + 17500
= 52,500/-
4.
Deduction towards personal expenses (D) (50% of C)
50% of 52,500/-
= 26,250/-
5.
Annual Loss of dependancy (E)
(C-D = E)
26,250/-
6.
Multiplier (F)
7.
Total loss of dependancy
(E x F)
26,250 x 18
= 4,72,500/-
8.
Conventional Heads:
(a) Loss of consortium
(b) Loss of Estate
(c) Funeral Expenses
70,000/-
9.
Total compensation
5,42,500/-
10.
Interest
7%
XII. Conclusion and Directions:
33. In view of the above, the appeal is partly allowed.
34. The amount of compensation to which the claimants have been awarded shall be deposited by the Insurance Company within a period of three months before the learned tribunal. Thereafter the learned tribunal shall release the amount to the claimants without delay. The amount already disbursed to the claimants (if any) shall be adjusted.
35. The amount deposited by the appellant before this Court shall be transmitted to the learned trial court which shall release the same in favour of the claimants.
Order Date :- 03.05.2023
Rishabh/Dhananjai
