Allahabad High Court
Akhilesh Kumar Anand vs Rahul Mishra And Another on 18 April, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 2019 of 2021 Appellant :- Akhilesh Kumar Anand Respondent :- Rahul Mishra And Another Counsel for Appellant :- Pradip Kumar Shukla Counsel for Respondent :- Ajay Singh Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Oral Judgment by Hon'ble Ajai Tyagi, J.)
1. This appeal challenges the judgement and award dated 10.01.2019 passed by Motor Accident Claim Tribunal/Additional District Judge, Court No.11, Kanpur Nagar in MACP No.370 of 2014 (Akhilesh Kumar Anand Vs. Rahul Mishra and others), whereby the learned Tribunal has awarded Rs.6,82,000/- as compensation on account of death of the wife of the claimant/appellant in a road accident with rate of interest 7% per annum.
2. Heard Shri Pradip Kumar Shukla, learned counsel for the appellant and Shri Ajay Singh, learned counsel appearing on behalf of respondents.
3. Brief facts of the case are that a claim petition was filed by appellant on account of death of his wife in a road accident before the learned Tribunal, in which averments are made that on 04.11.2011 at about 10:30 am the deceased was standing besides road near bus stop within the jurisdiction of police station- Kotwali, District- Fatehpur. All of sudden a Tata Safari bearing No.UP 78 BH 2707 came from behind, which was being driven rashly and negligently by its driver. The aforesaid vehicle hit the deceased from behind and the deceased sustained serious injuries. She died on 10.11.2011 during treatment in hospital.
4. The owner and insurance company of the offending vehicle filed their respective statements, in which they denied the accident. Learned Tribunal held that driver of the offending vehicle was negligent and responsible for the accident and awarded the said compensation.
5. In this appeal, the accident is not in dispute. The liability of the insurance company to pay the compensation is also not in dispute. The issue of negligence has attained finality. Now there remains only issue of quantum of compensation to be decided in this appeal.
6. Learned counsel for the appellant has submitted that the learned Tribunal has not awarded just compensation. The age of the deceased was 30 years and she was teacher in Rajkiya Balika Ucchatar Madhyamik Vidyalal, Fatehpur. Her salary was Rs.28,381 per month but the learned Tribunal has not relied on the documentary evidence with regard to the salary of the deceased nor the oral evidence is believed and consequently learned Tribunal has assumed the income of the deceased at Rs.3,000/- per month only. It is also submitted that the appellant has filed salary certificate which is duly attested by District Inspector of Schools yet it is not believed by learned Tribunal on the ground that the aforesaid certificate is not proved by calling the concerned employee of the school.
7. Learned counsel for the insurance company vehemently objected the submissions made by the appellant and submitted that merely the filing of salary certificate is not enough unless it is got proved by summoning the concerned employee of the school with record. Hence, the appellant is failed to prove the income of the deceased and the learned Tribunal has rightly assessed the income of the deceased at Rs.3,000/- per month. There is no illegality or infirmity in the impugned judgement which calls for any interference by this Court.
8. With regard to the quantum of compensation, is in relation with the income of the deceased who admittedly was an educated and highly qualified person was a teacher and not laborer the learned Tribunal has added 50% of income for calculating future loss of income and has deducted 1/3 for personal expenses of the deceased. Learned Tribunal has rightly applied the multiplier of 17 as envisaged in the judgement of Hon'ble Apex Court in Smt.Sarla Verma vs. Delhi Transport Corporation [2009 (2) TAC 677 (SC)] . Learned Tribunal has also awarded non-pecuniary damages at Rs.70,000/- as per judgement of Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. Learned Tribunal has granted the rate of interest 7% per annum. It is submitted by learned counsel for the appellant that rate of interest should be enhanced.
9. As far as income of the deceased is concerned, the learned Tribunal has altogether disbelieved the documentary as well as oral evidence in this regard. Although, the salary certificate and the copy of salary payment register are on the record yet the Tribunal has not relied on this documentary evidence merely on the ground that no concerned employee was called by the claimant to prove the salary certificate of the deceased. Hence, it was held that the same cannot be read in evidence and was totally discarded.
10. In our view the learned Tribunal has taken hyper technical view which was not required because the compensation to be awarded under Motor Vehicles Act, 1988 has to be assessed by taking holistic approach as the Act is a benevolent piece of legislation. While deciding the claim petition under the aforesaid act, the Tribunal should not take hyper technical view because the standard of proof is not equated with that of civil litigation or criminal law.
11. The Apex court decision in Anita Sharma Vs. New India Assurance Company Ltd, 2021 (1) SCC 171 and Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186, has held that strict proof of all facts is not necessary to decide the motor accident claim petition. The Tribunal should take the holistic view of the matter and the claimant has to establish his/her case on the touchstone of preponderance of probability.
12. The Division Bench of Madhya Pradesh High Court in Reliance General Insurance Co. Ltd. Vs. Subbulakhmi and others passed in CMA No.1482 of 2017 has also expressed the same view with regard to the standard of proof.
13. In Bimla Devi and others Vs. Himachal Road Transport Corporation and others 2009 (2013) SCC 530, also the Apex Court held that the claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.
14. Learned Tribunal has discarded the documentary evidence, filed by the appellant with regard to the salary of the deceased. Learned Tribunal could have invoked the powers under Section 169 of the Motor Vehicles Act, 1988, which gives claims Tribunal all the powers of Civil Courts for the purpose of taking evidence, and enforcing the attendance of the witnesses and compel the discovery and proof of documents and material objects. If the learned Tribunal wanted to get the salary certificate and payment register to be proved, it could have suo moto summoned the concerned employee of the school with original record because it is the duty of the Tribunal to award ''just compensation'.
15. In the case on hand, the appellant has filed the salary certificate of the deceased, which is issued by the Principal of the concerned school, in which the deceased was working as a teacher. In the said certificate the monthly salary of the deceased is shown at Rs.28,581/-. It is also pertinent to mention that District Inspector of School, Fatehpur has sent to the Tribunal a copy of salary payment register, pertaining to the deceased, under his own signature vide letter No.4895 dated 27.11.2018. The copy of salary payment register is also attested by District Inspector of School. Even though, the learned Tribunal has not believed this evidence, which is not the correct appreciation the evidence. Learned Tribunal has itself mentioned in impugned judgement that the salary certificate is filed in original. There is no contention of insurance company that the salary certificate and payment register are fake. The fact that the deceased was working as a teacher is established on record, yet the learned Tribunal has committed an error in equating the deceased with the laborer by assuming the income of the deceased at Rs.3,000/- per month. Learned Tribunal has relied on the judgement of Hon'ble Apex Court in Lakshmi Devi Devi Vs. Mohd. Tabbar and others 2008 (2) TAC 394 (SC) but this decision cannot be applied to the facts of the case in hand because in our case this fact is established on record that deceased was a teacher and was earning and not a laborer. Hence, we are of the considered view that learned Tribunal has fallen in error by equating the deceased with the laborer. The salary certificate shows the salary of the deceased at Rs.28,381/- per month which is confirmed by the copy of payment register, which also shows the payment of salary of the deceased at Rs.28,381/- per month. There is no other dispute except the rate of interest.
16. Hence, the total compensation, in view of the above discussions, payable to the appellants-claimants is being computed herein below:
i.
Income of the deceased Rs.28,381/-
ii.
Percentage towards Future-Prospects (50%) Rs.28,381/- + 50% Rs.14,190/-
iii.
Total Income Rs.28,381/-+ Rs.14,190/- Rs.42,571/-
iv.
Income after 1/3 deduction for personal expenses Rs.42,571/- - Rs.14,190/- Rs.28,381/-
v.
Annual income Rs.28,381/- x 12 Rs.3,40,572/-
vi.
Multiplier applicable 17 vii.
Loss of dependency Rs.3,40,572/- x 17 Rs.57,89,724/-
viii.
Amount under Non-pecuniary Heads Rs.70,000/-
ix Total Compensation Rs.57,89,724/-+Rs.70,000/- Rs.58,59,724/-
17. 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."
18. 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.
19. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The insurance company shall deposit the amount within a period of 8 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.
20. 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.
21. The Tribunal shall follow the guidelines issued by the Hon'ble Apex Court in Bajaj Allianz General Insurance Company Privae 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. Since long time has elapsed, the amount be deposited in the Saving Bank Account of claimant(s) in a nationalized Bank without F.D.R. (Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.) Order Date :- 18.4.2022 Ashutosh Pandey