Allahabad High Court
Smt. Vimla Devi And 4 Ors. vs United India Insurance Co. Ltd. And 2 ... on 25 February, 2022
Author: Vivek Varma
Bench: Kaushal Jayendra Thaker, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved on 09.02.2022 Delivered on 25.02.2022 Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 3659 of 2018 Appellant :- Smt. Vimla Devi And 4 Ors. Respondent :- United India Insurance Co. Ltd. And 2 Ors. Counsel for Appellant :- .,Akhilesh Chandra Srivastava,Ramesh Chandra Pathak Counsel for Respondent :- Sushil Kumar Mehrotra,Girish Kumar Srivastava,Neeraj Chandra Srivastava,Snehil Srivastava & Case :- FIRST APPEAL FROM ORDER No. - 2679 of 2015 Appellant :- United India Insurance Co. Ltd. Respondent :- Smt. Vimla Devi And 6 Others Counsel for Appellant :- Sushil Kumar Mehrotra Counsel for Respondent :- Ramesh Chandra Pathak,Akhilesh Chandra Srivastava,Snehil Srivastava Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Vivek Varma,J.
1. Heard Shri Aditiya Singh Parihar, learned counsel for the claimants and Shri S. K. Mehrotra, learned counsel for the Insurance Company. None appears for owner or driver of the vehicle.
2. Both these appeals arise out of the same award/decree. The First Appeal From Order No. 3659 of 2018 is preferred by the original claimants for enhancement of compensation whereas First Appeal From Order No. 2679 of 2015 has been filed by the Insurance Company with which the vehicle was insured challenging the findings as far as fixing their liability, compensation granted and on ground of contributory negligence of deceased.
3. Brief facts as culled out from the record are that in the night of 29/30.05.2011 Haridas Gautam, Vijay Gautam and Pankaj Kumar Sharma were returning to their home from Lucknow in a Maruti WagonR car bearing registration no. U.P-51/N-6061 which according to the petitioner was driven by respondent no. 3- Shiv Shankar @ Pappu. On 30.05.2011 at 4:00 a.m when they reached ahead of petrol pump of village Rithiya on Lucknow Main Road driver Shiv Shankar @ Pappu was driving the car rashly and negligently when he saw a vehicle coming from opposite side and with presumption that his car can collide with the coming vehicle he moved his car to very left of his side due to which the car collided with the railing of the road side culvert as a result of which Haridas Gautam and Vijay Gautam sustained several injuries on the other hand Pankaj Kumar Sharma and driver Shiv Shankar @ Pappu sustained minor injuries. Haridas Gautam and Vijay Gautam were taken to the District Hospital for treatment where Haridas Gautam succumbed to his injuries and Vijay Gautam was treated for his injuries.
4. It is an admitted fact that the claimants are legal representative of the deceased. The deceased was 53 years of age at the time of accident. He was working as a Chief Pharmacist in District Women Hospital, Basti. He was survived by his wife, two minor sons and two major daughters. The Tribunal considered his income to be Rs. 26,900/-p.a, deducted 1/4th towards personal expenses of the deceased, granted multiplier of 9 and granted Rs.1,00,000/- towards compensation for loss of consortium, granted Rs. 10,000/- towards for loss of estate, granted Rs. 10,000/- towards funeral expenses and ultimately assessed the total compensation to be Rs. 22,98,900/-.
5. Shri Aditya Singh Parihar, learned counsel for the claimants-appellants has submitted that the tribunal has deducted 20% by way of income tax and other emoluments which is not in consonance with the judgment of Vimal Kanwar and Others Versus Kishore Dan and others ( 2013) 7 SCC 476. Learned counsel has submitted that tribunal has granted multiplier of 9 in-place of 11 which is required to be granted as per the judgement of Sarla Verma Vs. D.T.C, AIR 2009 SC 3104. It is submitted that no amount under loss of future prospect is granted relying on decision of Sarla Verma (supra) as deceased was above 50 years of age.
6. As both the appeals raise different issues we will be obliged to decide all the issues raised in both the appeals as per the judgment of the Apex Court in the case of U.P.S.R.T.C Vs. Km. Mamta and Others, AIR 2016 SC 948. The issues which are raised by the Insurance Company are enumerated as follows:-
(a) The award and decree is bad as it was Vijay Gautam who was driving the vehicle and not Shiv Shankar @ Pappu;
(b) That there is a delay of about 26 months in lodging the F.I.R. and about two and half years delay in filing the claim petition;
(c) That there is no finding to the fact that accident in question occurred due to rash and negligent driving of the driver of Maruti Car and who is liable to pay the claimants;
(d) That the compensation awarded towards consortium and other heads is on the higher side;
(e) The claimants have also challenge quantum of compensation.
Issue (a) and (c) As far as the facts go it is an admitted position that the driver was one Shiv Shankar @ Pappu to whom the owner had entrusted the vehicle but from the evidence on record it is proved that the charge sheet was laid against Vijay Gautam who was also injured in the accident. The oral testimony of the driver D.W.-1- Shiv Shanker also corroborates this fact, in that view of the matter the finding of fact that the vehicle was been driven by Shiv Shankar @ Pappu could not be permitted to stand. Infact the said finding is contrary to the statement and testimony of the driver of the vehicle that he was not driving the vehicle at the time when the accident took place could not be disbelived just because he was a licensed driver. The fact Shiv Shankar @ Pappu was in the vehicle only would not make him liable as driving the vehicle in absence of any other evidence being led. In that view of the matter we hold that the vehicle was being driven by the Vijay Gautam. The factum of knowledge that vehicle was driven by Vijay Gautam and not by Shiv Shankar @ Pappu and to take benefit of this fact, we would have to peruse Section 147 and Section 149 of the Motor Vehicle Act, 1988. Section 147 read with Section 149 of Motor Vehicle Act, 1988 read as follows:-
147. Requirements of policies and limits of liability. --
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:--
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.--
(1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (l) of section 147 (being a liability covered by the terms of the policy) 1[or under the provisions of section 163A] is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non- disclosure of a material fact or by a representation of fact which was false in some material particular.
(3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub-section (1), as if the judgment were given by a Court in India: Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2).
(4) Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of section 147, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person.
(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.
(6) In this section the expression "material fact" and "material particular" means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be. Explanation.--For the purposes of this section, "Claims Tribunal" means a Claims Tribunal constituted under section 165 and "award" means an award made by that Tribunal under section 168.
In view of the provisions 147 and 149 of the M.V. Act, the insurance company has not proved that the owner has entrusted the vehicle to Vijay Gautam or the owner was aware that Vijay Gautam would drive the vehicle. It is evident from the factual data that owner had entrusted the vehicle to a person who was qualified to drive the vehicle. It is not known whether she was put to question regarding the vehicle being driven by Shri Gautam. The fact that the O.D claim was granted for which Shri Aditiya Singh Parihar has relied on the following two decisions: F.A.F.O No. 404 of 2013 and F.A.F.O No. 410 of 2013 decided by Division Bench of this Court on 06.02.2013, so as to contend that recovery rights could not be granted and in alternative it is submitted that even if it has to be granted on ground that there was breach of policy condition which caused accident with a rider that the appellant insurance company shall prove as held by the Apex Court in Singh Ram Vs. Nirmala and others, AIR 2018 SC 1290 that the owner was aware that the vehicle was drived by Vijay Gautam as it is not proved by the insurance company that Vijay Gautam had no license to drive the vehicle and therefore having not proved that Vijay Gautam did not have any driving license, this Court in view of the judgment of the Apex Court grants recovery rights but with this rider that it will be incumbent of the insurance company to prove that Vijay Gautam who was driving the vehicle had no license to drive the said vehicle and over and above that vehicle owner was aware that Vijay Gautam was driving the said vehicle with her explicit permission. It is not the case of the insurance company that the driver had no valid license, the owner and P.W.-1 have deposed that the vehicle was driven by Shiv Shankar @ Pappu who had a valid driving license. Even in case where it has been found that the driving license was fake the Courts in Singh Ram (Supra) have directed the insurance company to pay the compensation and recover from the owner cum driver. In our case the owner is on a much better ground. In the case of Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Ltd. and others, AIR 2018 SC 3736, the driver who was not possessing a valid driving license the insurer was held liable to pay compensation and recover the same from the owner. Our case is covered by judgment of Ram Chandra Singh Vs. Rajaram and others, AIR 2018 SC 3789 and therefore in this matter when the execution is filed, the question of liability of the owner to repay the Insurance Company will have to be examined by the tribunal.
Issue (b) The finding not being perverse is not disturbed as there is no period for filing claim petition and the claimants being in shock F.I.R. was filed belatedly.
The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply.
The principle of contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place.
The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under:
"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.
19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."
emphasis added The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
emphasis added The latest decision of the Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 Law Suit (SC) 469 has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimized if he had taken care. In this case the deceased was not the author or the co-author of the accident. Hence, the ground that driver was not negligent is rejected.
As far as the question of negligence of deceased is concerned, it is case of composite negligence and therefore the driver, the owner and the insurance company would be liable to pay compensation as the deceased was not the author of the accident with recovery rights given to insurance company.
Issue (d) Compensation to be awarded and as raised by claimants that compensation granted is inadequate and requires enhancement.
The deceased was Chief Pharmacist which is an admitted position of fact, his income has been considered Rs. 26,900/-p.m by the tribunal. The tribunal has not added any amount on the head of future loss of income by assigning reasons. On the basis of judgement of Sarla Verma Vs. D.T.C, AIR 2009 SC 3104 was considered by the tribunal. Shri Aditiya Singh Parihar, learned counsel appearing for the claimants contended that tribunal has granted multiplier of 9 in-place of 11 which is required to be granted as per the judgement of Sarla Verma (supra).
While going through the record, it is clear that the income of the deceased was Rs. 34,000/- p.m and from the salary slip it is clear that Rs. 6000/- p.a was to be deducted as income tax. The slab in the year 2011 was not 20% for a person earning less than Rs. 5 lacs per annum as other tax deduction would also have been claimed by the deceased.
The tribunal in our view has committed a error in granting multiplier of 9 despite the fact that it has relied on the judgement of Sarla Verma (supra) and has reproduce the tabulation. The age of the deceased was in the age bracket of 51-55 years, the tribunal took the view and come to the conclusion that as per the judgment of Sarla Verma (supra) no amount be added to the income where the person is above 50 years. In our case we would fall back on the rules and the recent judgment of the Apex Court in National India Assurance Co. Ltd. Vs. Urmila Shukla, 2021 ACJ 2081, to add future loss of income. The tribunal even considered the salary certificate of the deceased where the income mentioned to be was Rs. 34,086/-p.m., the tribunal deducted house rent allowance and deducted 20% by way of income tax which according to counsel for the appellants was not in consonance with the judgment of Vimal Kanwar and Others Versus Kishore Dan and others ( 2013) 7 SCC 476. We in principle agree with the learned counsel for claimants as even in the salary certificate only Rs. 500/- p.m has been deducted towards tax at source. The deduction could be Rs. 6000/- p.a and some amount can be deducted as per decision titled Vimal Kanwar and Others Versus Kishore Dan and others ( 2013) 7 SCC 476. Learned counsel for claimants has heavily relied on the judgments decided by Division Bench of this Court on 06.02.2013 in F.A.F.O No. 404 of 2013 and F.A.F.O No. 410 of 2013 and contended that deceased was a third party covered by the policy and therefore, whether recovery rights are granted or not would make no difference to him as the Insurance Company would be liable to the third party.
This takes this Court to the quantum of compensation grantable to claimants. The Apex court decision in Malarvizhi & Ors Vs. United India Insurance Company Limited and Another, 2020 (4) SCC 228 and United India Insurance Co. Ltd. Vs. Indiro0 Devi & Ors, 2018 (7) SCC 715. and in The Oriental Insurance Company Ltd. Vs. Mangey Ram and others, 2019 0 Supreme (All) 1067 and the recent judgment of the Apex Court in New India Assurance Company Vs. Urmila Shukla decided by the Apex Court on 6.8.2021 reported in MANU/SCOR/24098/2021 and Kirti and others vs oriental insurance company ltd reported in 2021(1) TAC 1. will enure for the benefit of the claimants.
7. It could not be culled out from record that on what basis, the Tribunal has deducted certain pecuniary benefits from the income of deceased. The income of the deceased in the year of accident and looking to his job has to be considered to be Rs. 32,000/- per month as the deceased was in the age bracket of 51-55 years, 20% as future loss of income requires to be added in view of U.P. M.V rules and decision in Urmila Shukla (Supra) as the deceased was survived by his wife, two minor sons and two major daughters who were unmarried 1/4th could have been the expenses borne on himself. The claimants would be entitled to multiplier of 11 and not 9 as per the judgment of National Insurance Company Ltd. Vs. Pranya Sethi 2017 (13) SCALE. Rs. 1,20,000/- granted for non pecuniary damages is not disturbed.
8. Hence, the total compensation payable to the appellants is computed herein below:
i. Income Rs 32,000/-p.m ii. Percentage towards future prospects : 20% namely Rs. 64,00/- p.m iii. Total income : Rs. 32,000 + Rs. 64,00 = Rs. 38,400/- p.m iv. Income after deduction of 1/4th : Rs. 28,800/- p.m v. Annual Income : Rs. 28,800 x 12 = 3,45,600/- p.a vi. Multiplier applicable : 11 vii. Loss of dependency: Rs.3,60,000 x 11 = Rs.38,01,600/-
viii. Amount under non-pecuniary head : 1,20,000/-
ix. Total compensation : Rs. 39,21,600/-
9. 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."
10. In view of the above, both the appeals are allowed. Compensation is recalculated. Award and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondents shall jointly and severally be liable to pay the amount to the claimants.
11. Having held that the Insurance Company can recover the amount from the owner and driver if it is proved that the owner was aware and had given the vehicle to Shri Haridas Gautam to drive and that Haridas Gautam had no license to drive the vehicle the recovery rights are given, are these facts being proved by Insurance Company.
12. The respondent-Insurance Company shall deposit the additional amount after recalculating within a period of 12 weeks from today with interest at the rate of 7.5% per annum 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.
13. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 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 claimants for any financial year exceed Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' (T.D.S) 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 no T.D.S shall be deductible.
14. The registry of 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.
15. 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 (SC), 442, the order of investment be passed by tribunal seeing the disbursement status of applicants /claimants.
16. Record be sent back to tribunal forthwith.
17. This Court is thankful to both the learned Advocates for ably assisting this Court.
Order Date :- 25.02.2022/PS