Madhya Pradesh High Court
The New India Insurance Company Ltd. vs Smt. Sumitra Choudhary on 18 November, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 18th OF NOVEMBER, 2022
MA-02195-2012
BETWEEN:-
1. SMT. SUMITRA CHOUDHARY W/O LATE
GOVINDDAS CHOUDHARY, AGED ABOUT 38
YE A R S , R/O H.NO. 108/A LAL BAHADUR
SHASTRI NAGAR BEHIND DAMOH NAKA BUS
STAND, P.S. GOHALPUR, JABALPUR (MADHYA
PRADESH)
2. SHUBHAM CHOUDHARY S/O LATE GOVINDDAS
CHOUDHARY, AGED ABOUT 17 YEARS, R/O
H.NO. 108/A LAL BAHADUR SHASTRI NAGAR
BEHIND DAMOH NAKA BUS STAND, P.S.
GOHALPUR, JABALPUR (MADHYA PRADESH)
3. ANJANI S/O LATE GOVINDDAS CHOUDHARY,
AGED ABOUT 15 YEARS, OCCUPATION: MINOR,
R/O H.NO. 108/A LAL BAHADUR SHASTRI
NAGAR BEHIND DAMOH NAKA BUS STAND, P.S.
GOHALPUR, JABALPUR (MADHYA PRADESH)
4. KAMLA BAI W/O KARANLAL CHOUDHARY,
AGED ABOUT 55 YEARS, R/O H.NO. 108/A LAL
BAHADUR SHASTRI NAGAR BEHIND DAMOH
NAKA BUS STAND, P.S. GOHALPUR, JABALPUR
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI RAKESH KUMAR SAHU, ADVOCATE)
AND
1. NIRMAL SINGH S/O GURUDEV SINGH, AGED
ABOUT 40 YEARS, R/O VILLAGE AHMEDGARH,
P.S. MANDI, DIST. SANGROOR, (PUNJAB)
2. BALVINDAR SINGH S/O GURDEV SINGH
CHHAPAR ROAD VILLAGE AHMEDGARH PS
Signature Not Verified
SAN MANDI DISTT. SANGROOR (PUNJAB)
Digitally signed by ANURAG SONI
Date: 2022.11.18 18:29:18 IST 3. NEW INDIA INSURANCE COMPANY LIMITED
INFRONT OF BHANWARTAL GARDEN RUSSEL
2
CHOWK JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DINESH KOSHAL, LEARNED COUNSEL FOR THE
RESPONDENT NO.3)
MISC. APPEAL No. 2195 of 2012
BETWEEN:-
THE NEW INDIA INSURANCE COMPANY LTD.
OCCUPATION: INFRONT OF BHAWARTAL
GARDAN THROUGH ASSISTANT MANAGER
NEW INDIA ASSURANCE COMPANY LTD.
DIVISIONAL OFFICE 290 NAPIER TOWN,
JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI DINESH KOSHAL, ADVOCATE)
AND
1. SMT. SUMITRA CHOUDHARY W/O LATE
GOVIND DAS CHOUDHARY, AGED ABOUT 28
YE A R S , PURANI BASTI WARE HOUSE KE
PEECHE KAJARWARA THANA KENT JABALPUR
(MADHYA PRADESH)
2. SUBHAM CHOUDHARY S/O GOVINDAS
CHOUDHARY, AGED ABOUT 8 YEARS, PURANI
BASTI WARE HOUSE KE PEECHE KAJARWARA
THANA KENT JABALPUR (MADHYA PRADESH)
3. ANJANI D/O GOVINDAS CHOUDHARY, AGED
ABOUT 7 YEARS, PURANI BASTI WARE HOUSE
KE PEECHE KAJARWARA THANA KENT
JABALPUR (MADHYA PRADESH)
4. KAMLABAI W/O KARANLAL CHOUDHARY,
AGED ABOUT 45 YEARS, PURANI BASTI WARE
HOUSE KE PEECHE KAJARWARA THANA KENT
JABALPUR (MADHYA PRADESH)
5. NIRMAL SINGH S/O GURUDEV SINGH, AGED
ABOUT 40 YEARS, VILLAGE AHAMASD GARH
THANA MANDI DISTT. SANGRUR, PUNJAB
Signature Not Verified
6. BALBINDER SINGH S/O GURUDEV SINGH
SAN
Digitally signed by ANURAG SONI
CHAPPAAR ROAD VILLAGE AHMAD GARH
Date: 2022.11.18 18:29:18 IST
THANA MANDI DISTT. SANGROOR PUNJAB
3
.....RESPONDENTS
(SHRI RAKESH KUMAR SAHU, LEARNED COUNSEL FOR TEH
RESPONDENT NOS. 1 TO 4-CLAIMANTS)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
These appeals have been filed by the claimants and the Insurance Company respectively being aggrieved of award dated 12/03/2012 passed by learned Motor Accident Claims Tribunal, Jabalpur in Claim Case No.100/2010.
Claimants ground for filing of appeal is that Tribunal has applied incorrect multiplier of 16 as the age of the deceased at the time of the incident was 32 years, therefore, multiplier of 17 should be applied.
Shri Dinesh Koshal, learned counsel appearing for Insurance Company has raised two grounds, namely the contributory negligence and another of non deduction of income tax by the Tribunal while making computation.
As far as grounds raised by the claimants' counsel is concerned, no ground is made out to show indulgence in the matter. As per the law laid down by Supreme Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Anr, (2009) 6 SCC 121 multiplier of 16 will be applicable in as much as Tribunal has mentioned in Para-15 of the award that date of birth of deceased Govind Das Choudhary was 01/07/1978. He met with an accident on 03/09/2010 i.e. he was 32 years of age, therefore, multiplier of 16 cannot be altered. There is no other infirmity in the impugned award calling for indulgence except that Tribunal has awarded only a sum of Rs.20,000/- under the head of non-pecuniary compensation, which will stand enhanced to Rs.70,000/-. Thus, there will be addition of Rs.50,000/- to the amount awarded by the Tribunal Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2022.11.18 18:29:18 IST subject to following discussion.
4As far as appeal of the Insurance Company (M.A.No.2195/2012) is concerned, Shri Dinesh Koshal fairly admits that there is no evidence led by the Insurance Company to prove the aspect of the contributory negligence. However, he places reliance on a judgment of Supreme Court in Raj Rani & Others Vs. Oriental Insurance Co. Ltd. & Others, 2009 (4) T.A.C. 385 (S.C.), but is not able to point out from this judgment that even in absence of any evidence to point out aspect of contributory negligence, Courts are liable to record a finding of contributory negligence on its own. In absence of any such material being available on record, this aspect of contributory negligence is not made out.
As far as aspect of income tax is concerned, that has an appeal. On the date of the accident i.e. 03/09/2010 for the financial year 2010-11 and assessment year 2011-12 income up to Rs.1,60,000/- is exempted from payment of income tax and thereafter from Rs.1,60,001/- to Rs.5,00,000/-, 10% income tax is payable. Over the calculated income tax 3% income tax surcharge is payable. Tribunal has considered income of the deceased at Rs.16,983/- per month or Rs.2,03,796/- per annum. Since first Rs.1,60,000/- is exempt from income tax, therefore, income tax including cess deductible will be Rs.4,511/-. Thus, when this income tax is reduced, then after permissible deductions net dependency comes out to Rs.1,86,325/-. Since deceased was having a fixed regular income, 50% as has been added by the Tribunal is to be added taking total dependency to Rs.2,79,487.50. Out of this 1/4th is to be deducted towards living expenses of the deceased, leaving net dependency to Signature Not Verified SAN Rs.2,09,616/- and when multiplier of 16 is applied total pecuniary compensation Digitally signed by ANURAG SONI comes out to Rs.33,53,856/-, over and above which a sum of Rs.70,000/- is Date: 2022.11.18 18:29:18 IST payable under the head of last rites, loss of estate and loss of consortium to the 5 wife. Besides this two of the children are entitled to a sum of Rs.80,000/- under the head of loss of love and affection in the light of law laid down by Supreme Court in the case of United India Insurance Company Ltd. vs. Satvindar Kaur @ Satwinder Kaur [2020 SCC Online SC 410]. Learned Tribunal has also awarded a sum of Rs.7,937/- under the head of treatment. Thus, total compensation will comes out to Rs.35,11,793/- against a sum of Rs.34,63,000/- awarded by the learned Claims Tribunal. Thus, there will be addition of Rs.48,793/-, to which claimants will be entitled to, but this additional amount will not fetch interest for a period of five year i.e. the period of delay in filing the appeal and will carry interest @ 6% except for this period of five years for the remaining period till the date of actual payment. Other terms and condition of the award shall remain intact.
In above terms, appeals are disposed of.
Record of the Tribunal be sent back.
(VIVEK AGARWAL) JUDGE as Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2022.11.18 18:29:18 IST