Allahabad High Court
Smt. Kavita Verma vs Jogendra Singh And Others on 6 April, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 22.03.2022
Decided on 06.04.2022
Court No. - 2
Case :- FIRST APPEAL FROM ORDER No. - 3087 of 2011
Appellant :- Smt. Kavita Verma
Respondent :- Jogendra Singh And Others
Counsel for Appellant :- Ramesh Kumar Shukla
Counsel for Respondent :- Pranjal Mehrotra
With
Case :- FIRST APPEAL FROM ORDER No. - 3086 of 2011
Appellant :- Eshwar Dayal Verma
Respondent :- Jogendra Singh And Others
Counsel for Appellant :- Ramesh Kumar Shukla
Counsel for Respondent :- Pranjal Mehrotra
With
Case :- FIRST APPEAL FROM ORDER No. - 3085 of 2011
Appellant :- Eshwar Dayal Verma
Respondent :- Jogendra Singh And Others
Counsel for Appellant :- Ramesh Kumar Shukla
Counsel for Respondent :- Pranjal Mehrotra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per Hon'ble Dr. Kaushal Jayendra Thaker,J.)
1. Heard Shri Ramesh Kumar Shukla, learned counsel for the appellants and Shri Pranjal Mehrotra, learned counsel for the respondents. None appears for the owner.
2. These three appeals are preferred by the appellants who were the original claimants being dissatisfied with the compensation awarded by the Tribunal. The appeal No. 3087 of 2011 arises out of Claim Petition No. 88 of 2010 which was instituted for the death of Prashant Verma. The F.A.F.O. No. 3086 of 2011 arises out of Claim Petition No. 89 of 2010 decided on 14.04.2011 which was filed for death of Sandeep Verma who died in motor accident and F.A.F.O. No. 3085 of 2011 arises out of the Claim Petition being No. 90 of 2010 seeking compensation for the death of Smt. Vimlesh Verma. All the three appeals arise out of three different awards but the accident arose out of the same accident, hence we decide these appeals together.
3. The facts as revealed go to show that on the fateful day when the vehicle in which the deceased were travelling, at about 2.30 p.m. when their vehicle reached near village Deval a tanker bearing registration no. HR 45-A-4558 which was being driven rashly and negligently by its driver, dashed against the Santro Car in which the deceased were travelling by coming from the opposite direction and wrong side and caused the accident. The accident caused death of three people namely deceased Prashant Verma, his younger brother Sandeep Verma and mother Smt. Vimlesh succumbed to the injuries on the spot.
4. At the time of accident deceased Prashant Verma was hale and hearty young man of 30 years and used to carry on bullion business and used to earn Rs. 2,00,000/- per annum. He was also an income tax payee and used to file his income tax returns which are on record for the year of accident and prior there to. The claimants who are widow two years son and one months daughter claimed Rs. 82,25,000/- as compensation. Sandeep Verma the younger brother was unmarried and was engaged in his business of coaching institute and was also preparing for his I.A.S. examination, his income tax return showed that his income was Rs. 1,60,000/- per annum but strange enough the Tribunal considered the income to be Rs. 15,000/- per annum and deducted 1/2 granted multiplier of 5 as per the age of the father and granted Rs. 4,500/- for non pecuniary damages. This computation is under challenge as according to the counsel for appellant the income tax returns have been ignored and the judgment of Apex Court in Srala Verma (intra) directing to grant compensation as per the age of the deceased has also been ignored, which requires re computation. The third petition is by the husband for the death of his wife whose income has been considered to be Rs. 2,000/- per month and has deducted 1/3 amount for personal expenses and granted multiplier of 5 which is also against the decision of Apex Court and granted meagre amount towards non pecuniary damages. According to the counsel for the appellants the compensation and rate of interest requires to be re evaluated.
5. The parties are referred to as appellant/appellants/claimants and respondent/Insurance Company.
6. The appeals raise sole issue of compensation to be granted to the appellant/appellants for death, by this Court. The accident herein having taken place on 08.01.2010 whereby three persons died on the spot is not in dispute. The vehicle being insured with the respondent is not in dispute. The driver of the offending vehicle has been held to be negligent is not in dispute. The tanker driver has been held to be rash and negligent in causing the accident is also not in dispute. The Insurance Company has not challenge the findings by the Tribunal and the findings as to their liability have attained finality.
7. None of the grounds which were raised so as to avoid the liability have found favour with the Tribunal.
8. General submissions by the learned counsel for the appellants the legal heirs of deceased are that though the income tax returns have been filed they have been brushed aside by the Tribunal holding they are not proved by the Income Tax Officer. The learned counsel for the appellants has submitted that this finding is perverse and is against the record. It is submitted that the respondents have not proved that the said documents are either fake or not filed before the department. It is further submitted that PW-1, PW-2 and PW-3 have all testified about the income tax returns being filed just because total income of the firm has not been produced, the Tribunal can not hold that the deceased has to be considered to be earning Rs. 100 or less per day. In that view of the matter the learned counsel has submitted that said finding is against the decision of this Court. This court in case of Smt. Anamika Bhardwaj And Others Vs. Ashok Gulati And Others in F.A.F.O. No. 3251 of 2010 has held that income tax returns should be considered as proof of income. We are fortified in our view by the decision of the Apex Court titled Malarvizhi & Others Vs. United India Insurance Company Limited & Anr. reported in AIR (2020) SC 90. The judgment in Sunita and Others Vs. Rajasthan State Road Transport Corporation and Another 2019 (SC) 994 would enure for the benefit of the appellant/appellants herein, as strict trappings of Civil Procedure Code, 1908 cannot be made applicable to proceeding under such beneficial piece of legislation as has been done by the Tribunal in accepting the submission of the counsel for Insurance Company that the income cannot be fixed on the basis of income tax return this reasoning is bad in eye of law.
FAFO NO. 3085 OF 2011 (DECEASED SMT. VIMLESH VERMA)
9. The F.A.F.O. No. 3085 of 2011 relates to the death of the wife of the appellant the deceased as per the testimony of this witness deceased was 52 years of age at the time of accident. The Tribunal has considered the income of the deceased (house wife) to be Rs. 2,000 per month as the Tribunal held that the income tax return was not proved and as there were no income tax return filed for the assessment year prior to the one produced and prior to death the same could not be relied upon.
10. This court in case of Smt. Anamika Bhardwaj And Others (Supra) has held that income tax returns should be considered as proof of income. The Tribunal in the year 2011 very strangely did not fallow the judgment of the Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 Lawsuit (SC) 613 for grant of multiplier. The Tribunal again relied on the schedule of Motor Vehicles Act 1988 appended for guidance for Section 163-A of the Motor Vehicles Act whereas the Claim Petition was preferred under Section 166 of the Motor Vehicles Act, 1988. The judgment in Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 Lawsuit (SC) 613 categorically mentioned that the age of the deceased is in the age bracket of 56 to 60 years multiplier of 9 should be applied, even if we go by the second schedule the multiplier of 8 would be admissible and not 5. This entire computation will have to be reworked the reason being the Apex Court in decisions referred herein above has held that income tax return if has been filed, the same has to be considered to be a guiding principle for considering the income of the deceased. The finding of fact that the said document has to be thrown in waste paper does not portray benefiction which a Motor Accident Claims Tribunal should show, while deciding compensation matter which was a certified copy of order is known as income tax statement of the deceased. The learned counsel submitted that the Tribunal even if did not accept the income tax return the Tribunal ought to have at least applied the principle admissible on death of house wife as enunciated in Lata Wadhwa and others reported in AIR 2001 SC 3218, even if there was no documentary evidence produced. There is no reason assigned as to why the Tribunal does not accept the oral testimony of the husband the deceased was 52 years of age and comes to the conclusion that postmortem report should be accepted and held are to be 60 years. May that as it may be the Tribunal has committed error in not considering the income tax return or the statement of the income of the deceased which proved that the income of the deceased was Rs. 1,49,800/- per annum. In the case of Anita Sharma Vs. New India Assurance Co. Ltd. (2021) 1 SCC 171 and in case of Vimla Devi and Others Vs. National Insurance Company Limited and another, (2019) 2 SCC 18 and the fact that way back in Puttum and Others Vs. K.N. Narayan Reddy AIR 2014 (SC) 706 the Apex Court has held that the schedule is unworkable there are faults in a schedule despite that the Tribunal relied on the same. The Tribunal relied on the schedule despite to the fact that the Tribunal was pointed out the decision in Sarla Verma (Supra). The judgment in Vimla Devi (Supra) would apply to the facts of this case. We are fortified in our view by the decision of the Apex Court in Malarvizhi & Others (Supra) would which ensure for the benefit of the appellant herein, as strict trappings of Civil Procedure Court be made applicable. Hence the income of the deceased has to be considered Rs. to be Rs. 1,49,000/- per annum out of which Rs. 20,000/- has to be deducted by way of income tax we consider the age of the deceased to be 56 years and upturn the finding of the Tribunal that the deceased was 60 years of age when she passed away. To the income which we have considered, 10% will have to be added for future loss of income as the husband is the sole dependent and she had major children who were married, from the said amount 1/2 will have to be deducted and not 1/3 for personal expenses, the multiplier would be 9 to which looking to the year of the accident Rs. 70,000/- would be admissible for non pecuniary damages the interest would be as decided herein below:-
(i). Annual income after deduction of income tax= Rs. 1,29,000/-.
(ii). 10% for future loss of income =Rs. 1,29,000+12,900=1,41,900/-.
(iii). Deduction for personal expenses 1/2 = 1,41,900-70950=70950.
(iv). Multiplier applicable=9
(v). Loss of dependency Rs. 70,950X9=6,38,550/-.
(vi). Amount under non pecuniary heads Rs. 70,000/-
(vii). Total compensation Rs. 6,38,550+70,000=7,08,550/-.
FAFO NO. 3086 OF 2011 (DECEASED SANDEEP VERMA)
11. Sandeep Verma was running coaching classes and was preparing for his I.A.S examination the Tribunal has considered his income in the year 2010 to be Rs. 15,000/- per annum based on schedule as if it was a petition under 163-A we have assigned reason that the same is bad in foregoing paragraphs by assigning reason that though he was income payee, the income tax return was for the year 2010 and that is also not relied on. The Tribunal has held that as there is no statement of income of the previous years, therefore, the same has not been believed. The Tribunal has not considered the concept of potential of the young boy who had cleared his I.A.S. preliminary exam and also was doing business, even, if we discard the certificate of income, his income can be considered to be Rs. 10,000/- per month to which as he was self employed 40% will have to be added which is not added by the Tribunal. Hence, Rs. 10,000+4,000=Rs. 14,000/- and the father and mother were dependent upon him 1/2 can be deducted. The multiplier granted by the Tribunal was 5 as per section 163-A of the Motor Vehicles Act on the basis of the age of the father which is not permissible the age of the deceased will have to be considered even in the year of the decision namely the judgment on the basis of decision of Munna Lal Jain And Another Vs. Vipin Kumar Sharma and Others reported in (2015) 6 SCC 347. The multiplier would be 17 as the deceased was 28 years of age to which Rs. 40,000/- under the head of non pecuniary damages will have to be granted to the father with interest.
(i). Annual income = Rs. 10,000X12=1,20,000/-.
(ii). Future loss of income @ 40%=Rs. 48,000/-.
(iii). Total income Rs. 1,20,000+48,000=1,68,000.
(iv). Income after deduction of 1/2 for personal expenses=84,000-.
(iv). Multiplier applicable=17
(v). Loss of dependency Rs. 84,000X17=14,28,000/-.
(vi). Amount under non pecuniary heads Rs. 70,000/-
(vii). Total compensation Rs. 14,28,000+70,000=14,98,000/-.
FAFO NO. 3087 OF 2011 (DECEASED PRASHANT VERMA)
12. Third matter relates to the death of Prashant Verma who had a jewellery shop who was an income tax payer whose income tax return was filed as document C-15. He was survived by his widow aged 28 years, son of 2 years and daughter of 1 month and his father who was also dependent upon him. The Tribunal very strange enough in this matter also discarded the income tax returns which was filed and proved by the widow of the deceased where the total gross income was shown to be Rs. 1,97,800/- per annum, which can safely be considered to be Rs. 1,50,000/- per annum as income tax can be deducted per annum. The deceased was below the age of 50, hence 40% will have to be added to the said income. As he was survived by his widow and two minor children and father 1/3 will have to be deducted and the multiplier of 17 granted is maintained. The Tribunal could not have held that his income should be that of a labourer. The deceased was a B.Sc. graduate that because documents about his degree were not filed it cannot be held that he was a labourer. The oral testimony of widow and father testified this fact. The certified copy of income tax return was already filed. The Tribunal granted Rs. 2,000/- for funeral expenses, Rs. 5,000/- for loss of consortium and Rs. 2,000/- for loss of estate, the petition is decided on 14.04.2011 namely after the judgment in Sarla Verma (Supra). We would have to recalculate the compensation Rs. 50,000/- each to two minor children as filial consortium who lost their father at a tender age. A sum of Rs. 1 Lakh to the widow in addition to Rs. 59,000/- granted by the Tribunal for loss of love affection and consortium and for losing her husband at a young age of 28 with two children to maintain. Rs. 15,000 for funeral expenses as per the judgment of Apex Court National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 2017 LawSuit (SC) 1093, under non pecuniary damages, the father is adequately compensated in the other two matters hence in this matter out of total compensation Rs. 50,000/- be paid to the father of the deceased.
(i). Annual income = Rs. 1,50,000.
(ii). Future loss of income @ 40%=Rs. 60,000/-.
(iii). Total income Rs. 1,50,000+60,000=2,10,000.
(iv). Income after deduction of 1/3 deduction for personal expenses=Rs. 1,40,000/-.
(iv). Multiplier applicable=17
(v). Loss of dependency Rs. 1,40,000X17=23,80,000/-.
(vi). Amount under non pecuniary heads Rs. 50,000+50,000+1,00,000+15,000=2,15,000/-.
(vii). Total compensation Rs. 23,80,000+2,15,000=25,95,000/-.
13. 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 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."
14. Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.
15. In view of the above, these appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company. shall deposit the amount within a period of 08 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.
16. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [2007(2) GLH 291] and this High Court in 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 claimants 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) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.
17. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. Vs 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.
18. While parting the request to Registrar General to show our concerned to the learned Tribunal about the method in which the matters were decided. We request the Tribunal in the State to consolidate the matter given consolidated the judgment and award in matters there were more than two claim petitions.
19. We request the Registrar General to send the copy of this order to the learned Tribunal so that in future he may more cautious.
Order Date :- 06.4.2022 Vikram