Allahabad High Court
Amit Srivastava vs M.D. U.P. S.R.T.C. And 3 Others on 10 May, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 19.4.2022 Delivered on: 10.5.2022 Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 3139 of 2016 Appellant :- Amit Srivastava Respondent :- M.D. U.P. S.R.T.C. And 3 Others Counsel for Appellant :- Adil Jamal Counsel for Respondent :- Vivek Saran Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. Heard learned counsel for the appellants and learned counsel for the respondent.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 06.07.2016 passed by Motor Accident Claims Tribunal/II Additional District Judge, Banda (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.210 of 2014 awarding a sum of Rs.2,80,000/- with interest at the rate of 7% p.a. as compensation.
3. The brief facts as culled out from the record are that on 29/30.6.2011 at around 01:50 A.M., the petitioner was travelling in Bus No. UP 11 T 2707 from Haridwar to Delhi, when the bus reached near Engineering College at Haridwar, Roorkee Road, being driven rashly and negligently by its driver dashed into a stationary truck. In this accident, the petitioner/appellant sustained grievous injuries due to which he became disabled to the tune of 80%. The appellant was a student of MBA and earning Rs.25,000/- p.m.
4. Aggrieved by the impugned judgment appellants has preferred this appeal.
5. The accident is not in dispute. It is also not in dispute that at the time of accident the offending bus was owned by U.P.S.R.T.C. and the driver of the bus was having a valid and effecting driving licence. It is also not in dispute that the bus was being plied on the road with all necessary documents. Hence only the issue of quantum of compensation is to be decided by this Court.
6. Learned counsel for appellant submitted that a very meagre amount is awarded by learned tribunal. Learned counsel submitted that at the time of accident, the appellant was studying in MBA Course. In this accident, due to grievous injuries in his leg, the leg got shortened and the appellant became 80% disabled as per the medical certificate. Learned counsel submitted that if it would not have happened then the appellant could earn at least Rs.25,000/- per month, after completing his study. But learned tribunal did not consider this fact and assumed his income only Rs.3,000/- per month. The appellant is a student of B.Com (Pass) and was doing MBA from a reputed Institution in Dehradun. It is next submitted by learned counsel that due to shortening of leg, appellant is not able to walk freely and he is not able to do his daily routine works properly and his career prospective are also adversely affected due to disability. Learned counsel did not consider all this facts. It is vehemently submitted that the medical board has issued disability certificate to the tune of 80% but the learned tribunal has considered the disability to the tune of 40% only which is not just and proper. Learned counsel for the appellant has relied on the decisions in (i) Syed Sadiq etc v. Divisional Manager, United India Insurance Co. 2014 LawSuit (SC) 27; (ii) Jithendran v. New India Assurance Co. Ltd. and anr., 2021 0 Supreme (SC) 644; (iii) Pradeep Kumar Tripathi v. Satish Kumar and others, 2017 0 Supreme (All) 1661; and (iv) Gangu Ram v. Rishi Pal & Another, 2018 LawSuit (All) 3762, to contend that the tribunal has not granted just compensation. The calculation given by the tribunal is not fathomed by this Court as two how for reduction of 1 inch of lower limb the tribunal has awarded such meagre compensation is granted by the tribunal. The appellant sustained serious injuries which has caused not only physical impairment but lot of mental trauma.
7. Learned counsel for the Insurance Company objected to the submissions made by appellant and submitted that at the time of accident, he was a student, there is no evidence on record that he was earning any amount. Hence, in absence of any evidence to earnings, the learned tribunal has rightly assessed the income of the appellant at Rs.3,000/- per month. It is also submitted that future loss of income has to be considered by the tribunal and grant of multiplier of 18 does not require alteration. It is submitted that there is no illegality and infirmity in the impugned judgment which calls for any interference by this Court.
8. It is an admitted fact that at the time of accident, the appellant was a student of MBA Course and he was also a Commerce Graduate. The educational qualification of the appellant goes to show that he had potential to earn good amount of money after getting his course completed. It is averred in claim petition that the appellant was doing MBA Course from an Institute in Dehradun.
9. This above fact is not controverted by the insurance company. Keeping in view the judgment of the Apex Court recently in Oriental Insurence Company Limited Versus Meena Variyal and others, 2007(2) T.A.C. 417 (SC) and as per judgment in Meena Pawaia & ors. Vs. Ashraf Ali & ors, 2021 LawSuit (SC) 743 it is held that potentiality to earn should be kept in mind by the tribunal at the time of assessing the income of the injured/deceased.
10. The educational qualifications and family background have also to be taken into consideration. The Apex Court in Basanti Devi and another v. Divisional Manager, The New India Assurance Company Ltd. and others., Civil Appeal Nos.7435-7436 of 2021 has held this. Hence with regard to the educational qualifications and potentiality of the appellant to earn after getting the course of MBA completed, we hold the income of the appellant would be at least Rs.10,000/- per month in the year of accident. Appellant sustained grievous injuries in the accident. Hon'ble Apex Court in case titled Kajal Vs. Jagdish Chand reported in 2020 (0) AIJEL-SC 65725 has quoted the law laid down in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 in which it is held as below:-
"16. In Raj Kumar v. Ajay Kumar and Others7, this Court laid down the heads under which compensation is to be awarded for personal injuries.
"6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i)Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Nonpecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
11. It is also submitted that the amount under the non-pecuniary heads and the interest awarded are also on the lower side and requires to be enhanced in view of the following authoritative pronouncements:
(i) Sanjay Kumar v. Ashok Kumar and another, (2014) 5 SCC 330;
(ii) Syed Sadiq and others v. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735;
(iii) V. Mekela v. M. Malathi and another, (2014) 11 SCC 178; and
(iv) Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011
(v) Har Babu v. Amrit Lal and others, 2019 (2) T.A.C. 718 (AI), these judgments will also strengthen our view that 25% should be add as future loss of income.
12. Appellant sustained severe injuries in lower part of his right leg and the leg got shortened. Medical board under Chief Medical Officer, Banda had issued disability certificate to the tune of 80% for particular part of body. Appellant was the student of MBA, he was not doing such type of work so as to affect his functional disability to the tune of 80%. The learned Tribunal has assessed his functional disability to the tune of 40% which is just and proper, hence we maintain it being his whole body functional disability.
13. As far as the medical bills of the appellant are concerned, only the photocopies of medical bills are filed on record and it is fairly submitted by learned counsel for appellant before the tribunal that original medical bills were submitted in U.P. Gram Panchayat for that he has received the payment from the Bank. Hence, the learned Tribunal has rightly refused to make the payment of medical bills.
14. The tribunal has awarded Rs.10,000/- for pain and suffering which are on the lower side, hence the appellant shall be entitled to Rs.50,000/- for pain, shock and suffering. Learned tribunal has awarded Rs.10,000/- for special diet and transportation which we maintain. The tribunal has not awarded any sum for loss of amenities. When the appellant has got his right leg shortened and sustained 40% functional disability, he would have certainly lost some amenities in life for which we grant Rs.50,000/-
15. On the basis of above discussions, the amount of compensation payable to the appellant is computed herein-below.
i. Annual Income : Rs.1,20,000/-
ii. Percentage towards future prospects : 40% which would be Rs.48,000/-
iii. Total income (i+ii) : Rs.1,68,000/-
iv. Multiplier applicable : 18 v. Loss of dependency: (Rs.168,000 x 18)=Rs.30,24,000/-
vi. Permanent disability at the rate of 40% = Rs.12,09,600/-
vii. For pain, shock and suffering : Rs.50,000/-
viii. For Special diet : Rs.10,000/-
ix. For loss of amenities : Rs.50,000/-
x. For all other non pecuniary damages : Rs.80,000/-
xi. Total compensation (vi+vii+viii+ix+x) : Rs.14,00,000/- (in rounded figure)
16. 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 V/s. Venugopal, Reported in 2012 (1) GLH 6 (SC), 442, the order of investment is not passed because applicants /claimants are neither illiterate nor rustic villagers.
17. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount.
18. 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.
19. 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."
20. 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-UPSRTC 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.
21. 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.
22. 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 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.
23. We are thankful to learned counsels for the parties for ably assisting this court in getting this old appeal disposed of.
24. Record be sent back to tribunal below forthwith.
Order Date :-10.5.2022 A.N. Mishra