Allahabad High Court
Smt. Kusum Tiwari And 3 Others vs United India Insurance Company Ltd. ... on 24 May, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2023:AHC-LKO:37106
Court No. - 19
Case :- FIRST APPEAL FROM ORDER No. - 413 of 2022
Appellant :- Smt. Kusum Tiwari And 3 Others
Respondent :- United India Insurance Company Ltd. Thru. Manager,Regional Office, Lko. And 3 Others
Counsel for Appellant :- Sanjay Kumar Rao
Counsel for Respondent :- Ravindra Pratap Singh,Anchal Mishra,Rakesh Kumar Sharma
Alongwith
Case :- FIRST APPEAL FROM ORDER No. - 1121 of 2016
Appellant :- Unite India Insurance Co Ltd Thru Manager Lucknow
Respondent :- Smt Kusum Tiwari And Ors
Counsel for Appellant :- Anchal Mishra
Counsel for Respondent :- Sanjay Kumar Rao, Rahul Srivastava,Ravindra Pratap Singh,Salil Kr.Srivastava
Hon'ble Jaspreet Singh,J.
1. Heard Shri Sanjay Kumar Rao, learned counsel for the appellants and Shri Anchal Mishra, learned counsel for the respondent-Insurance Company. None has put in appearance on behalf of the respondent no.2. Shri R. P. Singh, learned counsel has put in appearance on behalf of the respondent no.3 and none has put in appearance on behalf of the respondent no.4 in FAFO No.413 of 2022.
2. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act by the claimants seeking enhancement in the award dated 29.08.2016 passed by the Motor Accident Claim Tribunal/District Judge-II, Lucknow in Claim Petition No.209 of 2006 (Smt. Kusum Tiwari and others Vs. Virendra Kumar Maurya and others) whereby the Tribunal has awarded a sum of Rs.12,08,000 alongwith 7% interest payable from the date of the petition till the date of final payment and deducting three years interest therefrom.
3. Briefly the facts giving rise to the instant appeals are that Nar Singh Narayan Tiwari, a lawyer by profession, on 05.09.2004 was travelling in his Maruti Van number U P 32 AG 6515 and was on his way to Unchahar while at around 03:00 PM near Police Station Mohanlalganj on the Lucknow-Raebareili road, a mini bus bearing number UP 32 AN 2445 was being driven rashly and negligently which came from wrong side and hit the vehicle being driven by Nar Singh Narayan Tiwari. In the said accident, he suffered grievous injuries while his wife also suffered injuries but later Nar Singh Narayan expired. In view of the death of Nar Singh Narayan, the claim petition was filed by his wife, daughter and two sons as claimants which was registered as Claim Petition No.209 of 2006. The claim came petition to be contested by the Insurance Company as well as the driver and owner Virendra Kumar Maurya. The bus in question was being plied under a contract by the UPSRTC and it belonged to Virendra Kumar Maurya and was being driven by Surendra Kumar Sharma. The bus was said to be insured with the United India Insurance Company Ltd. However, while contesting the claim, amongst other pleas, it was also stated that the accident occurred on account of rash and negligent driving of the deceased and not that of the mini bus.
4. Upon exchange of pleadings, the Tribunal framed five issues and after considering the oral and documentary evidence, it held that the accident occurred solely on account of the rash and negligent driving of the bus bearing number U P 32 AN 2445 and in the said accident the deceased Nar Singh Narayan did not contribute. It also found that as per the version given by the eye-witness, it was the bus driver who was rash and negligent and while overtaking a truck he hit the Maruti Van of the deceased by coming on the wrong side. The bus was found insured with the Insurance Company and its driver also possessed a valid and subsisting driving license. While considering the compensation, the Tribunal considered the income tax returns of the deceased and taking note of the aforesaid, considered the final annual income of the deceased to be Rs.1,60,000/- Considering the age of the deceased to be 53 years applied a multiplier of 11 and thereafter added a small sum towards loss of consortium, loss of estate and funeral expenses and as a result a total sum of Rs.12,08,000/- was awarded alongwith 7% interest.
5. The Tribunal also noticed that the appellants had delayed the proceedings, therefore, it refused to permit interest for three years by means of the award dated 29.08.2016 and it is this award which is under challenge before this Court in the instant appeal seeking enhancement.
6. It will also be relevant to notice that this instant award dated 29.08.2016 became the subject matter of another appeal preferred by the Insurance Company bearing FAFO No.1121 of 2016 (United India Insurance Company Ltd. Vs. Kusum Tiwari and others) which is also listed today alongwith the appeal for enhancement i.e. FAFO No.413 of 2022.
7. Since the issues involved in the two appeals arise between the same parties, accordingly both the appeals are being decided by this common judgment. For the sake of convenience, the Court shall first take up the appeal preferred by the Insurance Company as that would have an invariable impact on the appeal filed by the claimants for enhancement that is to say that in case if the appeal of the Insurance Company is allowed then that perhaps there may not be any need for enhancement.
8. It is in this background, the counsel for the appellant in FAFO No.1121 of 2016, Shri Anchal Mishra submits that the claimants-respondents had instituted proceedings under Section 163-A of the Motor Vehicles Act, 1988 as shall be evident from the pleadings and perusal of the claim petition. However, the Tribunal has completely misdirected itself in treating the application under 166 of the Motor Vehicles Act, 1988 and even the prayer which has been made in the claim petition as mentioned is that the amount as payable to the claimants in terms of the second schedule be awarded. Thus, there could be no ambiguity in so far as the claim petition is concerned. However, the Tribunal has considered the entire matter in terms of Section 166 of the Motor Vehicles Act, 1988 which has resulted in sheer miscarriage of justice as a result a much higher compensation has been awarded which otherwise was neither sought for by the claimants.
9. Learned counsel for the claimants-respondent, on the other hand, submits that they had filed the petition under Section 166 and it has been mentioned in the claim petition in the nomenclature that it is a petition other than 163-A and it is suggested that other than 163-A would necessarily imply and be referable to Section 166 of the Motor Vehicles Act as there can be no other provision in terms of which the application is filed.
10. It is also urged that the evidence which was led including the statement given by the witnesses which amplified and established that the accident was an outcome for rash and negligent driving of the driver of the mini bus bearing number UP 32 AN 2445. The issue of contributory negligence was also considered in context with the aforesaid as had the petition been under Section 163-A then the issue of negligence pales into insignificance. It is thus urged that the Tribunal has rightly considered and has dealt with the issues subject to the plea of enhancement which has been made by the claimants. It is thus submitted that the appeal of the Insurance Company must fail.
11. The Court has considered the rival submissions and has also perused the material on record having taken note of the claim petition which is on record as Paper No.A-3. It would indicate that the nomenclature clearly states that it is under 'other than Section 163-A' for the grant of compensation. Even the Tribunal while passing the impugned award in the opening sentence has clearly stated that it is a petition other than Section 163-A. This has been necessarily lifted from the claim petition itself.
12. It is in the aforesaid backdrop, it would be seen that the petition was treated under Section 166 and even though a feeble plea to the aforesaid effect was raised in the written statement, yet no specific issue in this regard was framed for the reason that both the parties had gone to trial knowing fully well that the petition was being pleaded and considered under Section 166 of the Motor Vehicles Act.
13. Learned counsel for the Insurance Company could not dispute the fact that at no given point of time, he had ever pressed the aforesaid issue or made any application before the Tribunal for getting an additional issue framed or to press the aforesaid point. In view of the aforesaid, this Court is not inclined to accept the aforesaid contention and for the aforesaid reasons, the contention raised by the learned counsel for the Insurance Company fails. No other point has been pressed by the learned counsel for the appellant in so far as the FAFO No.1121 of 2016 is concerned which shall stand dismissed.
14. Now considering the appeal preferred by the claimants bearing FAFO No.413 of 2022, the submission of the learned counsel for the appellants is that the Tribunal has erred in failing to grant future prospects in respect of the income as a result the award is on a much lower side. It is further submitted that apparently the deceased was survived by his four legal heirs and as such the deduction to be made was 1/4th but the Tribunal has erred in making a deduction of 1/3rd. It is also submitted that the Tribunal ought not have deducted the interest component for three years and this has also caused prejudice to the appellants and for the said reason the award needs to be appropriately reconsidered.
15. Learned counsel for the respondent-Insurance Company while refuting the aforesaid submission has stated that the age of the deceased was of 53 years and the contention raised by the claimants-appellants that future prospects of 20% ought to be granted is not quite appropriate; inasmuch as in the decision of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others, reported in (2017) 16 SCC page 680, it has been held that in so far as person with income above the age of 50 years is concerned, 10% is to be added towards future prospects.
16. It is also submitted that considering the aforesaid other than that there can be no other error; inasmuch as appropriate deduction has been made coupled with the fact that since the claimants themselves were responsible for delaying the proceedings, hence the loss of interest must be borne by the claimants themselves and it cannot be said that the award passed by the Tribunal is not correct.
17. The Court has considered the rival submissions and have also perused the record in this context.
18. As already noticed above, the issue regarding the occurrence of the accident, the negligence as well as the liability of the Insurance Company to subrogate the award has not been challenged. The mode in which the Tribunal had considered and decided the claim petition was the sole issue which was raised by the Insurance Company in his appeal which has already been dismissed. Thus, the findings having attained finality. The only issue now before this Court is to determine as to whether the compensation as made by the Tribunal is just and proper.
19. It is in this backdrop and noticing the fact that the deceased was a practicing layer, an income tax payee having filed his returns wherein the income was shown as Rs.1,60,000/- and he was admittedly survived by his wife, a daughter and two sons, thus in the aforesaid backdrop, if the net income of Rs.1,60,000/- is taken and noticing the dictum of the Apex Court in the case of Pranay Sethi (supra) for future prospects then the same was liable to be incorporated/added at the rate of 10%.
20. What this Court finds that apart from this 10% towards future prospects which is to be added the Tribunal has completely ignored the issue of consortium. Consortium which has been granted by the Tribunal is very meager and in a narrow compass. This aspect has very been elaborately dealt with by the Apex Court in the case of Magma General Insurance Company Ltd., Vs. Nanu Ram 2018 SCC OnLine SC 1546 wherein the Apex Court has found that where upon a death, the claimants can be entitled to different types of consortium that is to say, upon a death of a person, his wife can claim spouse consortium, the children can claim parental consortium and where a parent is also available they can also claim filial consortium.
21. It is in this backdrop, if the award is seen, it would be found that the Tribunal has completely ignored this aspect of the matter. It is in this view where the claimant no.1 namely Kusum Tiwari is entitled for spouse consortium, the claimants no.2, 3 and 4 being the daughter and sons of the deceased can also equally claim parental consortium. In this view of the matter, each of the claimant would be entitled to a sum of Rs.40,000/- for loss of spouse and parental consortium. Towards loss of the estate and funeral expenses, the amount shall stand enhanced as sum of Rs.15,000/- shall be payable towards loss of estate and Rs.15,000/- under the separate head. In this view of the matter, the award is being re-determined by this Court as under:-
Income = Rs.1,60,000/- annual
Add:- 10% towards future prospects:- =Rs.16000/-
Total Income = Rs.1,76,000/- annual
Less:- (1/3rd ) = Rs.58,666/-
(deduction for 4 number of dependents
on personal expenses)
Thus total income = Rs.1,17,334/- annual
Age = 53 years
Multiplier = 11
Thus compensation payable = Rs.1,17,334x11=12,90,674/-
Add:- Spouse consortium = Rs.40,000/-
Parental consortium (four children) = Rs.40,000x4=1,60,000/-
Loss of estate = Rs.15,000/-
Funeral expenses = Rs.15,000/-
Total
------------------------------------------------------
Thus, total compensation Rs.15,20,674/-
payment shall be
------------------------------------------------------
21. In so far as the issue of interest is concerned, from the perusal of the record, it indicates that though the matter was pending before the Tribunal and on occasions, the claimants had sought time to lead evidence. However, the record does not indicate that there is any such glaring latches on the part of the claims which may dis-entitled them to claim interest for a complete period of three years. It will also be relevant to notice that in case if the Tribunal found that the claimants were seeking unnecessarily adjournments, it had the right of imposing costs or in the alternate could have closed the opportunity, but while doing so, it could still proceed with the trial. However, while granting the adjournment without making any other observations the deprivation of interest for a period of three years does not appear to be justified. Considering the facts and circumstances, this Court finds that the observations made by the Tribunal of not granting interest for a period of three years does not seem to be justified.
22. In view of the aforesaid, the appeal is partly allowed. The appellants-claimants shall be entitled to a total sum of Rs.15,20,674/- alongwith interest at the rate of 7% per annum from the date of the application till the date of actual payment. Any amount paid to the claimants shall be adjusted from the aforesaid sum and the remaining sum shall be paid to the claimants-respondents within 60 days from the date of the copy of this judgment is placed before the authority concerned. Any amount deposited by the appellants before this Court, shall also be remitted to the Tribunal to be released in favour of the claimants-respondents.
23. In view of the aforesaid, FAFO No.1121 of 2016 shall stand dismissed. FAFO No.413 of 2022 shall stand partly allowed in the aforesaid terms and the award dated 29.08.2016 passed in Claim Petition No.209 of 2006 shall stand modified to the aforesaid extent. Subject to the aforesaid, there shall be no order as to costs. The record of the Tribunal shall be remitted to the Tribunal concerned.
(Jaspreet Singh, J.) Order Date :- May 24th, 2023 ank/-