Allahabad High Court
Smt. Poonam Gupta W/O Late Rajesh Kumar ... vs Arun Kumar Mishra S/O Indrasen Mishra on 13 November, 2019
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 438 of 2010 Appellant :- Smt. Poonam Gupta W/O Late Rajesh Kumar Gupta Respondent :- Arun Kumar Mishra S/O Indrasen Mishra Counsel for Appellant :- Balendu Shekhar Counsel for Respondent :- Anil Srivastava,Hari Prasad Srivastava Hon'ble Jaspreet Singh,J.
Heard Sri Balendu Shekhar, learned counsel for the appellant as well as Sri Anil Srivastava, learned counsel appearing for the respondent no. 2.
The instant appeal under Section 173 of the Motor Vehicles Act. 1988 has been preferred against the award dated 30.11.2009 passed by the ADJ, Court No. 13/Acting as MACT in C.P. No. 319 of 2005 wherein a sum of Rs. 3,14,200/- along with 6% interest has been awarded in favour of the claimants.
The submission of learned counsel for the appellant is that the Tribunal has erred in failing to take note of the fact that the notional income of the deceased ought to have been taken at Rs. 3,000/- per month whereas the Tribunal has considered it to be at Rs. 2,400/- per month. It has been submitted that in view of the above, the finding in so far as issue no. 4 is concerned stands vitiated for the reason that the amount of income as determined by the Tribunal is against the settled principles, coupled with the fact that the future prospects of the deceased has not been taken note of since he was only 35 years of age. Apart from the fact that the non-pecuniary damages which has been settled by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC Page 680 has also not been taken note of and in view thereof the amount which has been awarded is grossly inadequate apart from the fact that the interest of 6% which has been awarded is also on the lower side.
Learned counsel for the appellant has drawn the attention of the Court to the notification which has been introduced in the Motor Vehicles Act, 1988 by which the Second Schedule appended to Section 163-A has been amended and in view thereof in case of death a lump sum compensation of Rs. 5 lakhs has been provided.
Learned counsel for the appellant has also submitted that in accordance with the Uttar Pradesh Motor Vehicles Act (11th Amendment) Rules, 2011 the rate of interest in so far as claim petition are concerned ought to be 7% and it has been submitted that in view thereof the award passed by the Tribunal needs to be enhanced.
Per contra, Sri Anil Srivastava, learned counsel appearing for the respondent no. 2 has submitted that the appellant is not entitled to the benefit of either the amendment made in the second Schedule appended to Section 163-A and further it has been submitted that since the petition before the Claims Tribunal was under Section 163-A, accordingly, the plea raised by the appellant that his income was Rs. 42,000/- per month and a finding having been returned in the issue no. 4 which has not been assailed by the appellant will not come to the aid of the appellant and he is not entitled to the same. It has further been submitted that the interest awarded by the Tribunal is appropriate and the award does not require any interference.
The Court has heard the learned counsel for the parties and also perused the record.
In order to test the submissions of the learned counsel for the parties, briefly the facts giving rise to the appeal are being noted hereinafter:-
One Sri Rajesh Kumar Gupta on 03.05.2004 was travelling with his friend Sri Divendra Tripathi in Indica Car No. UP 32 AG 9676 and travelling from Faizabad to Lucknow. At around 07:00AM when they had reached near Rutauli Police Station, Village Besar at that relevant time a person namely Rohit suddenly came in front of the aforesaid vehicle which was being driven by Sri Divendra Tripathi and in order to save the person, the car of Sri Divendra Tripahi turned turtle. On account of the aforesaid accident, Sri Rajesh Kumar Gupta suffered injuries and died on the spot. It was stated that he was a taxi driver and was able to earn Rs. 3,500/- per month. He is survived by his wife and a minor child. It is in view thereof that the claim petition No. 319 of 2005 came to be filed under Section 163-A of the Motor Vehicles Act, 1988.
The Claim Petition was contested by filing a written statement both by the owner as well as the Insurance Company. It was pleaded in the written statement that the accident did not occur on account of the rash and negligent driving rather on account of a person having come in front of the vehicle suddenly which caused the accident and despite all efforts made by the driver Sri Divendra Tripathi, the car had overturned. It was also stated that the vehicle was duly insured with the Oriental Insurance Company and that the owner and driver did possess a valid and effective driving license. Similar pleas were adopted by the Insurance Company, however, it took the defence that as far as the insurance is concerned, the same shall be subject to the verification of the policy and other documents. On the pleadings of the parties, the Tribunal framed four issues.
After considering the oral and documentary evidence, the Tribunal while considering issue no. 2 came to the conclusion that the death of Sri Rajesh Kumar Gupta occurred on account of the accident which was caused with the use of the vehicle in question bearing No. UP 32 AG 9676. While considering the issue no. 2, it found that the driver of the offending vehicle did possess a valid and effective driving license and also that the vehicle in question was duly insured and with the aforesaid finding the issue no. 3 was decided.
Considering the grant of compensation, the Tribunal found that since no evidence was lead on behalf of the appellant to substantiate that the deceased was earning Rs. 3,500/- per month, accordingly, taking a holistic view of the matter, the Tribunal took notional sum of Rs. 2,400/- per month as notional income and thereafter it deducted 1/3rd towards personal expenses and applying the multiplier of 16 came to the amount of Rs. 3,07,200/- to which it added a sum of Rs. 5,000/- towards consortium and Rs. 2,000/- towards funeral expenses and thus a total sum of Rs. 3,14,200 was awarded along with 6% interest.
It is this award which has been assailed for the purpose of seeking enhancement.
After hearing the learned counsel for the parties and from the perusal of the record it is not in dispute that on 22.05.2018, the Government of India has brought in an amendment in the second Schedule appended to Section 163-A of the Motor Vehicles Act, 1988. The second Schedule after the amendment made on 22.05.2018 reads as under:
The Second Schedule (See Section 163-A) Schedule for Compensation for third party fatal accidents/injury cases claims.
1. (a) Fatal Accidents:
Compensation payable in case of Death shall be five lakh rupees.
(b Accidents resulting in permanent disability.
Compensation payable shall be = [Rs. 5,00,000 x percentage disability as per Schedule 1 of the Employee's Compensation Act, 1923 (8 of 1923)]:
Provided that the minimum compensation in case of permanent disability of any kind shall not be less than twenty five thousand rupees.
(c) Accidents resulting in minor injury:
A fixed compensation of twenty five thousand rupees shall be payable:
2. On and from the date of 1st day of January, 2019 the amount of compensation specified in the clauses (a) to (c) of paragraph (1) shall stand increased by 5 per cent annually.] From the perusal of the same, it indicates that in case of fatal accident which has caused death, a lump sum of Rs. 5 lakhs has been provided as compensation in the aforesaid Schedule. The question now is whether in the present case where the accident occurred on 03.05.2004 and the claim petition was decided on 30.11.2009, the Schedule which has been amended w.e.f. 22.05.2018 can be made applicable or not.
The aforesaid proposition need not detain this Court much longer, inasmuch as, it is settled that as far as compensation cases are concerned, the revision which is made by the amemdment from time to time or the changes which are introduced and are made applicable on the date when the appeal is being decided, the same can be taken note of by the Court.
This Court is fortified in its view and draws strength from the decisions of the Apex Court in the case of Union of India Vs. Rina Devi reported in 2019 (3) SCC 572 and the relevant portion reproduced hereinbelow:-
15.1. (i) Whether he quantum of compensation should be as per the prescribed rate of compensation as on the date of application/incident or on the date of order awarding compensation;
Answering the same, the Apex Court held as under:-
16. In Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] , this Court considered the question whether the compensation to be applied would be as per rules applicable on the date of the order or as per the rules in force at the time of accident or the untoward incident. Reversing the view [Union of India v. Rathi Menon, MFA No. 1292 of 1998, order dated 12-8-1999 (Ker)] taken by the Kerala High Court that the liability to pay compensation arises as soon as accident happens and not when the quantum is determined, this Court held that liability is to pay compensation "as may be prescribed" which means as on the date of the order of the Tribunal. This Court observed that if interpretation placed by the Kerala High Court was to be accepted and the claimant was to get compensation in terms of market value which prevailed on the date of the accident, the money value of the compensation will be reduced value on account of lapse of time. The revision of rate by the Central Government may itself show that the money value has come down. The Tribunal must apply the rate applicable as per the rules at the time of making of the order for payment of compensation. [Rathi Menon v. Union of India, (2001) 3 SCC 714, paras 29 & 30] This Court distinguished the judgments of the larger Bench in Pratap Narain Singh Deo [Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 : 1976 SCC (L&S) 52] , P.A. Narayanan v. Union of India [P.A. Narayanan v. Union of India, (1998) 3 SCC 67] and Maghar Singh v. Jashwant Singh [Maghar Singh v. Jashwant Singh, (1998) 9 SCC 134] . It was observed that Pratap Narain Singh Deo [Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 : 1976 SCC (L&S) 52] and Maghar Singh [Maghar Singh v. Jashwant Singh, (1998) 9 SCC 134] were judgments under the Workmen's Compensation Act where the scheme was different as in the said Act there was a provision for interest and penalty if deposit was not made. The judgment in P.A. Narayanan [P.A. Narayanan v. Union of India, (1998) 3 SCC 67] was relied upon to support the view that therein compensation was awarded even though accident was of a date much earlier to the rules providing for compensation.
17. The learned ASG for the appellant submitted that view in Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] stands watered down by subsequent decisions especially in Thazhathe Purayil Sarabi [Thazhathe Purayil Sarabi v. Union of India, (2009) 7 SCC 372 : (2009) 3 SCC (Civ) 133 : (2009) 3 SCC (Cri) 408 : 2010 TAC 420] , Mohamadi [Mohamadi v. Union of India, (2019) 12 SCC 389 : 2010 SCC OnLine SC 19] and Kalandi Charan Sahoo [Kalandi Charan Sahoo v. South-East Central Railways, (2019) 12 SCC 387 : 2017 SCC OnLine SC 1638] . Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] was premised on the basis that there was no law for interest and there will be injustice if compensation was paid at money value which had got reduced by the time the compensation was paid. Factually interest was awarded in Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] . It was on that basis that judgments in the Workmen Compensation cases were held to be distinguishable though the said judgments are of larger Benches [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 33] . Subsequently in Thazhathe Purayil [Thazhathe Purayil Sarabi v. Union of India, (2009) 7 SCC 372 : (2009) 3 SCC (Civ) 133 : (2009) 3 SCC (Cri) 408 : 2010 TAC 420] it has been held by this Court, after referring to Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] , that right to claim compensation accrued on the date of the incident though compensation is computed on the date of the award of the Tribunal. To compensate for loss of money value on account of lapse of time and for the denial of right to utilise the money when due, interest was required to be paid. [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 26] Accordingly, this Court directed payment of interest on the awarded sum from the date of application till the date of recovery. This view was followed in Mohamadi [Mohamadi v. Union of India, (2019) 12 SCC 389 : 2010 SCC OnLine SC 19] . In Kalandi Charan Sahoo [Kalandi Charan Sahoo v. South-East Central Railways, (2019) 12 SCC 387 : 2017 SCC OnLine SC 1638] , without any specific discussion on the legal issue involved, direction was issued for payment of compensation which was applicable at the material time and the same was assumed to be of Rs 4 lakhs. In that case, the accident took place in the year 2005 and the award of the Tribunal was in 2009 i.e. prior to 1-1-2017.
18. The learned Amicus has referred to judgments of this Court in Raman Iron Foundry [Union of India v. Raman Iron Foundry, (1974) 2 SCC 231, para 11] and Kesoram Industries [Kesoram Industries and Cotton Mills Ltd. v. CWT, (1966) 2 SCR 688, para 33 : AIR 1966 SC 1370] to submit that quantum of compensation applicable is to be as on the award of the Tribunal as the amount due is only on that day and not earlier. In Kesoram Industries [Kesoram Industries and Cotton Mills Ltd. v. CWT, (1966) 2 SCR 688, para 33 : AIR 1966 SC 1370] , the question was when for purposes of calculating "net wealth" under the Wealth Tax Act, 1957 provision for payment of tax could be treated as "debt owed" within the meaning of Section 2(m) of the said Act. This Court held that "debt" was obligation to pay. The sum payable on a contingency, however, does not become "debt" until the said contingency happens. The liability to pay tax arises on such tax being quantified. But when the rate of tax is ascertainable, the amount can be treated as debt for the year for which the tax is due for purposes of valuation during the accounting year in question. There is no conflict in the ratio of this judgment with the principle propounded in Thazhathe Purayil Sarabi [Thazhathe Purayil Sarabi v. Union of India, (2009) 7 SCC 372 : (2009) 3 SCC (Civ) 133 : (2009) 3 SCC (Cri) 408 : 2010 TAC 420] that in the present context right to compensation arises on the date of the accident. In Raman Iron Foundry [Union of India v. Raman Iron Foundry, (1974) 2 SCC 231, para 11] , the question was whether a claim for unliquidated damages does not give rise to "a debt" till the liability is determined. It was held that no debt arises from a claim for unliquidated damages until the liability is adjudicated. Even from this judgment it is not possible to hold that the liability for compensation, in the present context, arises only on determination thereof and not on the date of accident. Since it has been held that interest is required to be paid, the premise on which Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] is based has changed. We are of the view that law in the present context should be taken to be that the liability will accrue on the date of the accident and the amount applicable as on that date will be the amount recoverable but the claimant will get interest from the date of accident till the payment at such rate as may be considered just and fair from time to time. In this context, rate of interest applicable in motor accident claim cases can be held to be reasonable and fair. Once concept of interest has been introduced, principles of the Workmen Compensation Act can certainly be applied and judgment of the four-Judge Bench in Pratap Narain Singh Deo [Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 : 1976 SCC (L&S) 52] will fully apply. Wherever it is found that the revised amount of applicable compensation as on the date of award of the Tribunal is less than the prescribed amount of compensation as on the date of accident with interest, higher of the two amounts ought to be awarded on the principle of beneficial legislation. Present legislation is certainly a piece of beneficent legislation.
19. Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] and Kalandi Charan Sahoo [Kalandi Charan Sahoo v. South-East Central Railways, (2019) 12 SCC 387 : 2017 SCC OnLine SC 1638] stands explained accordingly. The four-Judge Bench judgment in Pratap Narain Singh Deo [Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 : 1976 SCC (L&S) 52] holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given.
This aspect of the Second Schedule as amended by the Amending Act of 2018 was dealt by a Division Bench of the Calcutta High Court in the case of Urmila Haider Vs. New India Assurance Co. Ltd. reported in 2018 SCC Online Cal 11751 and the relevant paragraphs reads as under:-
66. However, the Supreme Court in the earlier part of the said decision categorically held:
"Once concept of interest has been introduced, principles of Workmen Compensation Act can certainly be applied and judgment of 4-Judge Bench in Pratap Narain Singh Deo (supra) will fully apply".
87. Taking into consideration that interpretation of a beneficent legislation was involved, the Supreme Court evolved a formula for awarding compensation in a manner that would benefit the heirs of a deceased victim.
116. Sub-section (3) of Section 163-A confers power on the Central Government to amend the Second Schedule keeping in view the "cost of living" by notification in the Official Gazette, from time to time. While in a proceeding under Section 166 of the Act interim relief could be claimed under Section 140 on the principle of 'no-fault' liability, the law does not recognise interim relief if a tribunal is approached under Section 263-A. The relief that is granted, if at all the claim case so permits, is a final relief. If the tribunal is approached in early 2008 with a claim for a death occurring in late 2007 and the tribunal decides the claim application following the old schedule after the notification amending the old schedule was issued, say on May 23, 2018, would the compensation that is awarded be sufficient to take care of the cost of living in May, 2018 and onwards? It can never be ignored that the legal heirs of the deceased victim have to live in the future, when the cost of living would increase manifold, and not in the past when it was much on the lower side. In the absence of any interim compensation being payable, the claimants may have survived with whatever little they could manage either by engaging in any avocation or with the blessings of others or even by lending. The compensation that is finally determined to be payable would provide them the means for their sustenance in future. If the legal heirs are made to accept the compensation determined on the basis of the cost of living in late 1994 as per the old schedule, which the Supreme Court as far back as in 1996 while deciding Trilok Chandra (supra) found to be defective and in 2013 has observed in Puttamma (supra) to have become redundant, irrational and unworkable, it would be a cruel joke for them to have compensation determined on the basis of the old schedule, being a pittance, having been left high and dry with the death of possibly the sole bread winner in the family, and not administered justice upon application of the new schedule.
117. We are, thus, of the clear view that while deciding claim applications under the 1988 Act, be it under Section 166 or Section 163-A, the ordinary rule of litigation that the rights of the parties stand crystallized on the date of commencement of litigation and the right to relief should be decided by reference to the date on which the plaintiff entered the portals of the Court, may not apply. The claim applications under Section 166 and Section 163-A, for a limited purpose, form a class of its own in the sense that contrary to other jurisdictions where the Court considering the facts and circumstances proceeds to grant relief to the suitor either wholly or partially but not in excess of what is claimed, the tribunals functioning under Section 165 of the 1988 Act are under no compulsion to award compensation restricted to the claimed amount before it at the instance of the claimants. If any authority is needed, one may profitably refer to the decision in Nagappa v. Gurdayal Singh: (2003) 2 SCC 274, which also arose out of a claim application under Section 163-A of the 1988 Act.
118. The scheme relating to grant of compensation under Chapters XI and XII of the 1988 Act being beneficial legislation, a liberal construction has always been resorted to. Padma Srinivasan (supra) is one decision where, to give effect to an amendment in Section 95 (2) of the 1939 Act, the date of the accident was considered relevant. However, one can hardly overlook that a decision is an authority for what it decides and not what logically follows therefrom. We thoughtfully refuse to consider the date of the accident to be relevant now, in respect of a claim application under Section 163-A. As we have noticed earlier, the age and earning of the victim on the date of his death under the old schedule were relevant considerations for determining compensation based on selection of the appropriate multiplier but the date of death and the earning capacity of the victim presently have lost all relevance with the introduction of the new schedule.
125. Therefore, the conclusion seems to be inescapable that while deciding pending claim applications/appeals post May 22, 2018, the new schedule ought to be applied by the tribunals/this Court for determining compensation payable to the legal heirs of an accident victim or to the victim himself regardless of whether the new schedule is beneficial to them or not. The issue framed in paragraph 12 is, accordingly, answered.
In view of the above, it would be noted that in terms of the aforesaid amendment introduced in the Second Schedule which replaces the entire structured formula which was prevalent in the earlier Second Schedule appended to Section 163-A. From the aforesaid, it would also reveal that the concept of non-pecuniary damages has been taken away and a complete lump sum amount in case of fatal accident causing death for which a lump sum of Rs. 5,00,000/- has been provided. Earlier, the compensation was being calculated on the structured formula thereafter the interest and the amount towards the non-pecuniary damages was granted by the Court and with fixing the non-pecuniary damages by the Apex Court in the case of Pranay Sethi (Supra) the claimants were entitled to be same, however, as the appellant has relied upon the amendment incorporated in the year 2018 in the Motor Vehicles Act, 1988 and has urged that the same is applicable in the present circumstances, Thus, this Court has no hesitation to hold that as far as the applicability of the Second Schedule is concerned, the same shall apply, however, the submission of learned counsel for the appellant to the extent that upon the aforesaid sum of Rs. 5,00,000/-, the appellants/claimants should also be granted non-pecuniary damages as fixed by the Apex Court in the case of Pranay Sethi (supra) does not find favour with this Court.
The entire premise upon which the new Schedule has been amended gives no reason to doubt that as far as death cases are concerned one lump sum amount is to be granted upon which the claimants may be entitled to the interest, however, apart from the lump sum, there is no scope to grant any further amount towards the non-pecuniary damages as it would be seen that earlier in the second schedule an amount was mentioned towards grant of non-pecuniary damages even though meager which in certain decisions of the Apex Court was termed as redentant and now with the new substitution of the IInd Schedule as per the amendment of 2018, there is no provision for grant of any sum towards non-pecuniary damages. The legislature has introduced the amendment after the decision of the Apex Court in the case of Pranay Sethi (Supra) and if wanted to provide for non-pecuniary damages it could have provided so in the schedule, however, it has not been done and it appears to be purposefully to provide one composite amount as lump sum in case of fatal accidents and injury cases covered under Section 163-A of the Motor Vehicles Act, 1988 and to make the grant of amount of compensation relevant in today's scenario.
Thus, in view of the above, this Court provides that the appellant shall be entitled to a total sum of Rs. 5,00,000/- along with interest at the rate of 7% per annum from the date of the application till the date of its actual payment. Any amount already paid by the Insurance Company to the appellants shall be adjusted from the aforesaid sum and the claimants shall be entitled to the balance thereof.
In view of the above, the award dated 30.11.2009 is modified to the above extent and the appeal is partly allowed. There shall be no order as to costs.
The lower court record shall be remitted to the court concerned within a period of two weeks from today.
[Jaspreet Singh, J.] Order Date: 13.11.2019 Asheesh