Allahabad High Court
Smt. Tej Kumari Sharma And 4 Others vs Chola Mandlam M.S. General Insurance ... on 19 March, 2021
Author: Ajit Singh
Bench: Kaushal Jayendra Thaker, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 21 Case :- FIRST APPEAL FROM ORDER No. - 2871 of 2016 Appellant :- Smt. Tej Kumari Sharma And 4 Others Respondent :- Chola Mandlam M.S. General Insurance Co. Ltd. And 5 Others Counsel for Appellant :- Amit Kumar Sinha, Deepali Srivastava Sinha Counsel for Respondent :- Pawan Kumar Singh, Sushil Kumar Mehrotra Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajit Singh,J.
1. Heard Sri Amit Kumar Sinha, learned counsel for the appellant and Sri Pawan Kumar Singh, learned counsel for the respondent and Sri Mehrotra for the respondent, perused the judgment and order impugned.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 12.8.2016 passed by Motor Accident Claims Tribunal, Additional District Judge, Court No.04, Aligarh ( hereinafter referred to as 'Tribunal') in MACP No.129 of 2015 awarding a sum of Rs.14,65,000/- with interest at the rate of 7%.
3. Vipin Kumar Sharma, who was a Teacher in Maharshi Vidya Mandir, Aligarh and he sustained injury on 16.12.2014 in an vehicular accident and passed away leaving behind him his widow, two minor daughters aged about 7 and 3 years and aged parents.
4. The accident having taken place on 16.12.2014 is not in dispute. The vehicle was owned by Maharashi Vidya Mandir is also not in dispute. It is not in dispute that the children and teacher namely the deceased Vipin Kumar Sharma were traveling in the mini bus having registration number U.P.-81 BT-1948. When this bus reached near a place known as Raja Ka Bhatta, Agra Road, one another mini bus bearing registration number U.P.-81 BT-2190 dashed the mini bus in which he received severe injury.
5. It is very clear that the deceased was not driving the said mini mus. The Tribunal framed issues and decided Issue no.1 that the driver of the mini bus U.P.-81 BT-1948 was driving rashly and negligently and dashed with mini bus in which the deceased had boarded. During the treatment Vipin Kumar Sharma succumbed to the injuries.
6. As far as Issue nos. 2 & 3 are concerned, the Tribunal returned the findings which have attained finality as the Insurance Company driver and owner have not challenged those findings.
7. We are called upon to decide the compensation awarded to the heirs of the deceased decided in issue no.4. The first error which is apparent on the face of record is that the Tribunal considered that the amount to be paid to the appellants should be decided as per Section 163 A IInd Scheduled of Motor Vehicles Act, 1981.
8. Unfortunately, the Tribunal lost sight of fact that the petition was under Section 166 and not under Section 163 A of the Motor Vehicle Act, 1988. The Tribunal in issue no.4 mentions that the claimants had claimed Rs.50,000/- under the head of no fault liability, Rs.50,00,000/- under the head of future prospect, Rs.25,00,000/- under the head of pain, shock and suffering and Rs.1,00,000/- for loss of consortium and Rs.1,00,000/- for loss of love and affection towards minor children and had demanded Rs.78,50,000/- for the death of the sole bread winner of the family.
9. It is an admitted position of fact that the appellant examined PW-1 i.e. widow of the deceased, who in her deposition deposed that the deceased was M.Sc.(Bio) and B.Ed. and was earning Rs.13,000/- per month. He had even applied for getting service in a Government school as he had cleared the exam of TET necessary for getting Government job. The deceased was also having a secondary income by doing private tuition. PW-3- Om Prakash Mishra was examined to prove the income of the deceased who had brought with him all the documentary evidence which showed that the deceased was earning Rs.12,000/- in the initial period but just before his death, his income was Rs.13,000/-.
10. He was an intermediate teacher. On what basis the Tribunal considered his income to be Rs.10,000/- is not known. He deducted the amount of bus rent and that is how he came to the conclusion that his income can be considered to be Rs.10,000/- and during leave his pay would be deducted.
11. This fallacy in the finding of fact is sought to be assailed by the appellant and it is submitted by the counsel for the appellant that the income should be considered as Rs.13,000/- per month. The Tribunal considered the fact that there were four dependents and deducted 1/4th amount towards future loss of income.
12. The deceased was 35 years of age. The Tribunal granted total amount of Rs.14,65,000/- as compensation which comprised loss of income but did not consider granting of any amount for future loss of income and considered Rs.5,000/-, Rs.10,000/- for funeral charges with 7% interest and directed Chola Mandlam M.S. General Insurance Co. Ltd. to compensate the appellant as the vehicle was insured.
13. Counsel for the respondent has tried to contend that the compensation awarded is just and proper.
14. The Tribunal has considered the judgment in Sanobanu Nazirabhai Mirza and another Versus Ahamadabad Municipal Transport Service, 2013 ACJ 2733 and Rajesh and another Vs. Sajveer Singh and another 2013 ACJ 1403 in which the Supreme Court but has not applied ratio laid therein and has also misguided itself in not appreeciating the judgment of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 in its proper prospective. The judgments cited and considered has also been misread while considering the income of the deceased to be Rs.10,000/0 only. He had not added any amount for future loss of income which was supposed to be added as the deceased was a salaried person.
15. It is submitted by counsel for the appellant that the total amount awarded by the Tribunal does not carry any amount for future loss of income which is apparent on the face of record and requires to be interfered with as recently the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, 2017 0 Supreme (SC) 1050 has held that future loss of income should be granted.
16. An alternative submission is made by the counsel for the Insurance Company that the deceased was not having permanent job and, therefore, no future loss of income should be granted and in the alternate, it is submitted that if it has to be granted, it should be not 50% but 40% as he did not have permanent job.
17. It is further submitted that the amount of medical expenses cannot be granted as no bills were produced. It is further submitted that multiplier is just and proper and the rate of interest does not require any change.
18. Hence, this Court feels that as the Tribunal calculated the compensation as income of deceased Rs.10,000/-, 1/4th deducted and therefore available monthly datum figure was Rs.7500/- and granted multiplier of 16.
19. We have carefully gone through the award. This appeal can be disposed of on the basis of the judgment / award of the Tribunalk as record will not be necessary as on the face of the decision itself there are errors which are apparent on the face and so that the insurance company does not have to pay huge amount by way of interest, we finally this appeal today itself as it is appeal of the year 2016.
20. The income of the deceased even as per the Tribunal's award was Rs.13,000/- per month. If we deduct certain deductible amount then also it has to be Rs.12,000/- to which as the deceased had permanent job, 50% will have to be added as the deceased was a salaried person which would come to Rs.18,000/- out of which we would have to deduct 1/4th for the personal expenses of the deceased as he was survived by five persons and we do not disturb the finding of the Tribunal on this aspect. The multiplier granted by the Tribunal is just and proper. The deceased died during the treatment, hence for mental pain shock suffering, the family and widow would be entitled to Rs.25,000/- as additional amount over and above the amount to be granted under non pecuniary heads. As far as non pecuniary damages are concerned, it should be Rs.70,000/- with 10% rise every three years as per judgment of National Insurance Company Limited Vs. Pranay Sethi and others which would be roughly calculated as Rs.1,00,000/-, which is granted to which as there are two minor daughter who have lost their father and the age of 7 and 3 years, we grant additional Rs.50,000/- each to them.
21. Hence, the total compensation payable to the appellants is computed herein below : -
i. Income : Rs.12,000/-
ii. Percentage towards future prospects : 50% namely Rs.6,000/-
iii. Total income : Rs.12,000 + Rs.6,000 = Rs.18,000/-
iv. Income after deduction of 1/4th = Rs.13,500/-
v. Annual income : Rs.13,500 x 12 = Rs.1,62,000/-
vi. Multiplier applicable : 16 vii. Loss of dependency : Rs.1,62,000 x 16 = Rs.25,92,000/-
viii. Amount under non pecuniary damages : Rs.1,00,000/-
ix. Special love and affection for minor : Rs.1,00,000/-
ix. Total compensation : Rs.27,92,000/-
22. The rate of interest at 7% is disturbed.
23. 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."
24. No other grounds are urged orally when the matter was heard.
25. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 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.
26. 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 is not passed because applicants /claimants are neither illiterate or restic villagers.
27. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, 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 claimant 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) while disbursing the amount.
28. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.
Order Date :- 19.3.2021 Mukesh