Bindu Mishra vs Uday Yadav
2024 Latest Caselaw 21056 MP

Madhya Pradesh High Court

Bindu Mishra vs Uday Yadav on 5 August, 2024

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

                                                       1                                                 MA-2526-2018
    IN        THE           HIGH COURT OF MADHYA PRADESH
                                  AT JABALPUR
                                 BEFORE
               HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
                                  MISC. APPEAL No. 2526 of 2018
                                   BINDU MISHRA AND OTHERS
                                            Versus
                                   UDAY YADAV AND OTHERS
Appearance:
         Shri R.P. Mishra - Advocate appearing on behalf of Shri Nitin Kumar
Gupta- Advocate for the appellant.
         Shri Dinesh Kaushal - Advocate for the respondent No.2.

                                      RESERVED ON :                            25.07.2024
                                 PRONOUNCED ON :                               05.08.2024

......................................................................................................................................................
          This appeal having been heard and reserved for judgment, coming
on for pronouncement on this day, the court passed the following:-

                                                         ORDER

This appeal has been filed by the claimants/appellants under Section 173 (1) of the Motor Vehicles Act, 1988 against the award dated 27.02.2018 passed in MACC. No.3400165/2016 (Bindu Mishra and Others Vs. Uday

Yadav and Others) passed by Second Additional MACT, Satna seeking enhancement of compensation, whereas, respondent-Insurance Company has filed cross-objections seeking setting aside of impugned award/reduction of compensation amount/exoneration from liability to pay the compensation.

2 . Learned counsel for the appellants/claimants submits that Tribunal has awarded consortium only to appellant No.1, whereas, Tribunal should 2 MA-2526-2018

have awarded consortium to all the appellants at the rate of Rs.40,000/-. Further, it is also urged that Tribunal has deducted 30% for income tax, whereas, income tax should have been deducted as per prevalent tax rates. In this connection, learned counsel for the appellants has relied upon Smt. Shashi Gupta and Others Vs. Shriman Yadav and Others (M.A.No.2526 of 2020 dated 05.12.2022). Further, after referring to para-19 and 21 of impugned award, learned counsel for the appellants submits that Tribunal has rightly held that deceased comes within the purview of third party. In this connection, he has relied upon New India Assurance Co. Ltd. Vs. Shanti Bopanna and Others 2017 ACJ 2045 SC, AIR 2003 SCC 607. Further, it is also urged that instant accident has occurred on account of rash and negligent

driving of offending vehicle by respondent No.1. On above grounds, it is urged that compensation awarded by the Tribunal be enhanced and cross objections filed by respondent-Insurance Company be dismissed.

3 . Learned counsel on behalf of the respondent/Insurance Company submits that deceased had taken offending vehicle on hire for Departmental work from respondent No.1. Therefore, he will step into the shoes of owner of offending vehicle. Therefore, he will not come within the purview of third party. In this connection, he has relied upon The Oriental Insurance Company Limited Vs. Meena Variyal and Ors, AIR 2007 SC 1609. It is also urged that from evidence on record, it is clearly evident that present accident has occurred not on account of rash and negligent driving by driver of offending vehicle, instead accident has occurred on account of bursting of tyre. For maintaining a claim petition under Section 166 of Motor Vehicle 3 MA-2526-2018

Act. Rash and negligent driving is sine qua non /mandatory requirement. It is also urged that it is claimant, who has to prove factum of rash and negligent driving. In this connection, learned counsel for the respondent has relied upon Surendra Kumar Arora and another Vs. Manoj Bisla (Dr.) and Others, 2012 (3) T.A.C. 353 (S.C.). Therefore, one of the essential requirement for maintaining claim petition under Section 166 of the Motor Vehicle Act is not established.

4. After referring and relying upon Shyamwati Sharma and Others Vs. Karam Singh and others, (2010) 12 SCC 378 and Ranjana Prakash and others Vs. Divisional Manager and others, 2011 (4) T.A.C 11 SC, it is urged that Tribunal has rightly deducted 30% as income tax. Further, relying upon judgment of Jammu and Kashmir and Ladakh at Srinagar in National Insurance Company Limited Vs. Mst. Aisha Bano and Ors. Mac App No.33 of 2022, CM No.6083 of 2022 and CM No.3307 of 2023, it is urged that interest on future prospects cannot be awarded from date of filing of claim petition. On future prospects, interest can be awarded only from the date of award. On above grounds, it is urged that cross objections filed by respondent/Insurance Company be allowed and appeal filed by the claimants be dismissed.

5. I have heard learned counsel for the parties and perused record of the case.

6. In view of rival submissions of both the parties, following issues arises for determination of this Court:-

4 MA-2526-2018

(i) whether in the instant case, it is established that accident occurred on account of rash and negligent driving of offending vehicle ?

(ii) whether learned Tribunal has wrongly deducted 30% as income tax ?

(iii) whether, as deceased had taken vehicle from respondent No.1/ had hired vehicle from respondent No.1, deceased would step into the shoes of owner of offending vehicle and, therefore, claimants are not entitled to receive compensation, in view of law laid down in Meena Variyal (Supra).

(iv) whether interest on future prospects is to be awarded from date of filing of claim petition or from the date of award ?

7. Now above issue will be dealt with one by one.

ISSUE NO (i) whether in the instant case, it is established that accident occurred on account of rash and negligent driving of offending vehicle ?

8 . Perusal of FIR (Ex.P/1) reveals that therein, it is mentioned that driver of offending vehicle was driving the vehicle speedily and negligently and rear tyre of car got burst and on account of the same, vehicle overturned. In final report (Ex.P/7), it is mentioned that on account of excessive speed, rear tyre got burst and on account of the same, car overturned. FIR (Ex.P/1) have been lodged by applicant witness Pradeep 5 MA-2526-2018 Kumar Gupta and eye witness of the incident. Applicant witness Pradeep Kumar Gupta has clearly deposed that speed of offending vehicle was excessive and it was being driven rashly and negligently.

9. FIR (Ex.P/1) has been lodged by applicant witness Pradeep Gupta, immediately after the accident. It is correct that applicant witness Pradeep Gupta has admitted in his cross-examination that on account of bursting of rear tyre, offending vehicle, became unbalanced/could not be controlled that's why, offending vehicle got overturned. Applicant witness Pradeep has also deposed that it is correct that if there was no bursting of tyre of offending vehicle, then, present accident could not have occurred.

10. In this Court's opinion, just on the basis of above deposition of applicant witness Pradeep Gupta, it cannot be said that offending vehicle was not being driven rashly and negligently/ speedily/ at excessive speed. It is well established that a witness testimony is to be read as a whole and not in piecemeal.

11. In this Court's opinion, if Pradeep Gupta's testimony is read and assessed as a whole, then, from testimony of Pradeep Gupta, it is clearly established that at the time of accident, offending vehicle was being driven rashly and negligently/speedily and at excessive speed and on account of the same, tyre of offending vehicle got burst and vehicle overturned. On above point, Pradeep's testimony stands corroborated from FIR (Ex.P/1) and final report (Ex.P/7).

12. Thus, in the instant case, from evidence on record, it is clearly 6 MA-2526-2018 established that at the time of accident, offending vehicle was being driven rashly and negligently and on account of the same, accident occurred. In view of factual difference, principle laid down in Surendra Kumar (Supra) does not help Insurance Company in any manner whatsoever. Therefore, submissions of learned counsel for the respondent/Insurance Company with respect to above are rejected.

ISSUE NO (ii) whether learned Tribunal has wrongly deducted, 30% as income tax ?

1 3 . So far as deduction of 30% for income tax is concerned, it is correct that with respect to above, learned Tribunal has relied upon Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another (2009) 6 SCC 121, Shyamwati Sharma and Others Vs. Karam Singh and Others (2010) 12 SCC 378 and Ranjana Prakash and Others Vs. Divisional Manager and Others 2011 (4) T.A.C. 11 SC.

14. It is settled law that from gross income/salary of deceased, statutory deductions, including income tax, are to be made for arriving at net/actual income of deceased. Only issue is whether income tax can be deducted at a flat rate of 30% without having regard to income of deceased. In this Court's considered opinion, income tax cannot be deducted at a flat rate of 30% without having any regard to annual income of deceased. This is

also evident from decision of this Court in Smt. Mayankaram Omar and Others Vs. K.B. Koteshwar Sant and Others passed in M.A.No.2593 of 2018 decided on 19.09.2022.

7 MA-2526-2018

15. In this Court's opinion, Hon'ble Apex Court in Ranjana Prakash (Supra) and Shayamwati Sharma (Supra) has not laid down any absolute/inflexible rule that in each and every case, 30% is to be deducted under the head of income tax.

16. Another issue before this Court is whether income tax is to be deducted from annual income of deceased without adding future prospects or after adding future prospects. With respect to above, it would be appropriate to refer relevant paras of Sarla Verma (Supra) and Pranay Sethi (Supra).

17. Hon'ble Apex Court in para-20 and 24 of Sarla Verma (Supra) has held as under:-

"20. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects.

24.............In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax")...........

8 MA-2526-2018

18. Hon'ble Apex Court in Pranay Sethi (Supra) has held as under:-

"59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax."

19. Thus, from principle laid down in Sarla Verma, (Supra) which has been affirmed by Hon'ble Apex Court in Reshma Kumari and Others Vs. Madan Mohan and another, 2013 ACJ 1253 and Pranay Sethi (Supra), it is evident that percentage of "actual income/salary" is to be added as future prospects and "actual income /salary" is to be read as "actual salary" less income tax. Hence, income tax is not to be deducted from deceased's annual income after adding future prospects to the annual income of deceased. Income tax is to be deducted from annual income of deceased without adding any future prospects.

20. As per salary slip Ex.P/18 and 19 and findings recorded by learned Tribunal deceased's annual income comes to Rs.7,52,928/-.In the instant case, accident occurred on 12.02.2016. Therefore, income tax is to be calculated at the rate that were prevalent in the year 2015-2016.

21. Applicant witness Vinod has been cross-examined by respondent 9 MA-2526-2018

Insurance Company and in para-8 of cross-examination, this witness has deposed that salary upto Rs. 2,50,000/- is exempted from income tax, from Rs.2,50,000 to 35,00,000, income tax is to be deducted at the rate of 10% and from Rs.5,00,000/- to Rs.10,00,000/- income tax is to be deducted at the rate of 20%. Leaned counsel for the appellant/claimants has submitted that Rs.54,690/- is to be deducted as income tax.

22. In view of above submission of learned counsel for the appellant, Rs.54,690/- is to be deducted as income tax, appears to correct. Thus, after deducting Rs.54,690/- as income tax and to Rs.3,000/- as professional tax, net/ actual annual income of deceased comes to Rs.6,95,238/-.

23. In view of age of deceased, 50% is to be added as future prospects. After adding 50% (Rs.3,47,619/-) as future prospects, deceased's income comes to Rs.10,42,857/-. In view of number of dependents, one fourth is to be deducted for personal and living expenses. After deducting one fourth personal and living expenses, annual dependency comes to Rs.7,82,143/-.

24. As per findings recorded by Tribunal in para-13 of impugned award, appellant Bindu, wife of deceased, has got compassionate appointment and she is receiving Rs.15,660/- approximately per month as salary. Hence, in view of Smt. Sushila Dhurve & Others Vs. Sukhlal Dhurve and Others passed in M.A.No.2350 of 2020 by order dated 10.07.2024, it would be appropriate to apply lower multiplier of 14. After applying multiplier of 14, total dependency comes to Rs.1,09,50,002/-.

10 MA-2526-2018

25. Further, appellants being parents/wife/son/daughter of deceased, all appellants are entitled to receive consortium at the rate of Rs.40,000/-. They are also entitled to receive Rs.15000/- each for loss of estate and funeral expenses.

26. Thus, total compensation comes to Rs.1,11,80,002/- (Rs.1,09,50,002/- + Rs.2,00,000/- + Rs.30,000/-)

ISSUE NO. (iii) whether, as deceased had taken vehicle from respondent No.1/ had hired offending vehicle from respondent No.1, deceased would step into the shoes of owner of offending vehicle and therefore claimants are not entitled to receive compensation in view of law laid down in Meena Variya (Supra).

27. From averments made in claim petition as well as written statement filed by owner of offending vehicle, it is evident that deceased and owner of offending vehicle were acquainted with each other, prior to the accident and they were having family relations and on account of the same, deceased had taken offending vehicle from respondent No.1, owner of offending vehicle.

28. With respect to present issue, it would be appropriate to reproduce relevant part of Insurance policy (Ex.P/22) which is as under:-

Schedule of Premium

Own Damage Liability Basic OD Cover Basic TP Cover 11 MA-2526-2018 Compulsory PA cover for Owner Driver, LL cover for Paid Driver NCB (20%) OD Premium in 3447 TP Premium in 1482

29. It is also evident from Ex.P/22 that it is a "Private Car Package Policy." At the time of accident, deceased was travelling inside the car. Therefore, in view of Insurance Policy (Ex.P/22), being a "Private Car Package Policy" respondent-Insurance Company is liable to pay the compensation.

30. Hence, in view of above, principle laid down in Meena Variyal (Supra) does not help respondent/Insurance Company in any manner whatsoever.

ISSUE NO. (iv) whether interest on future prospects is to be awarded from date of filing of claim petition or from the date of award ?

31. In the instant case, accident occurred on 12.02.2016. Award has been passed on 27.02.2018 and present appeal is pending since 2018. Learned counsel for the respondent/ Insurance company has not drawn this Court's attention to any statutory provision of law or pronouncements of Hon'ble Apex Court or co-ordinate Bench of this Court so to show that interest on future prospects should be awarded from the date of award and not from the date of filing of claim petition.

32. In this Court's opinion, there is an underlying object for grant/award of interest on compensation. A person is entitled for compensation immediately/within a reasonable period/after/ death/ 12 MA-2526-2018 injury/damage in an accident arising out of use of motor vehicle. But if such compensation is not paid immediately after the accident/within reasonable period of accident, and a person etc. is compelled to file a claim petition for the same, only then in such a situation a Court/Tribunal grants/award interest on compensation for delay in payment of compensation. Thus, interest is granted/awarded for delayed/deferred payment of compensation.

33. Similarly, in case of death, a claimant/person becomes entitled for "Future Prospects" also along with other amount, immediately after the accident and the same is required to be paid to claimant immediately after the accident/within reasonable period of accident, along with other amount. Hence, there is no justification for not awarding interest on "Future Prospects" from the date of filing of claim petition. This Court does not agree with principle laid down in Mst. Aisha Bano (Supra). Therefore, submissions of learned counsel for the respondent with respect to above are also rejected. In this Court's opinion, interest on future prospects is also to be awarded from the date of filing of claim petition.

Conclusions:-

34. Hence, in view of discussion in the foregoing paras,

appellant/claimants are entitled to receive enhanced amount Rs. 22,16,002/- (Rs.1,11,80,002/- - Rs.89,64,000/-) and enhanced amount shall carry simple interest at the rate of 6% per annum. Others findings of Tribunal shall remain intact.

35. Hence, in view of discussion in the foregoing paras, appeal filed by appellants/claimants is partly allowed to the extent as indicated hereinabove 13 MA-2526-2018 and cross objections filed by respondent/Insurance Company are disallowed.

36. Appeal filed by appellant and cross objections filed by respondent are disposed of accordingly.

(ACHAL KUMAR PALIWAL) JUDGE

vai VAISHALI AGRAWAL 2024.08.06 10:25:04 +05'30'