Allahabad High Court
Smt. Heerakali And 4 Ors. vs Ram Gopal Duey And 2 Ors. on 14 October, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- FIRST APPEAL FROM ORDER No. - 1248 of 2017 Appellant :- Smt. Heerakali And 4 Ors. Respondent :- Ram Gopal Duey And 2 Ors. Counsel for Appellant :- Dileep Kumar,D.K.Chandel,D.K.S.Chandel,Indrajeet Singh Counsel for Respondent :- Krishna Shanker Chaudhary,Sudhanshu Behari Lal Gour Connected With Case :- FIRST APPEAL FROM ORDER No. - 1806 of 2015 Appellant :- National Insurance Co. Ltd. Respondent :- Smt. Heerakali And 6 Others Counsel for Appellant :- S.B.L. Gour Counsel for Respondent :- Indrajeet Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. These are two connected First Appeals From Order (hereinafter referred to as 'FAFO'), filed against same judgement and award dated 9.4.2015, passed by Motor Accidents Claim Tribunal/Additional District Judge, Court No. 1 Pilibhit (hereinafter referred to as 'Tribunal') in MACP No. 216 of 2013 (Smt. Heera Kali and Others Vs. Ram Gopal and Others). FAFO No. 1806 of 2015 (National Insurance Co. Ltd. Vs. Smt. Heerakali And 6 Others) has been filed by defendant Insurance Company challenging correctness of impugned judgement and award whereas, FAFO No. 1248 of 2017 has been filed by Claimant Appellants being dissatisfied with the impugned judgement and award passed by Tribunal.
2. It transpires from record that on 13.9.2013, Radha Krishna husband/father of claimant-appellants 2, 3, 4 and 5 (hereinafter referred to as 'claimants') was going from Pilibhit to Bisalpur on his motorcycle with Registration No. UP 26 K 7661. When he reached near Devi Brick Field, village Jasauli he stopped his motorcycle on his side of road and parked it beyond metalled road. He is thereafter alleged to have started conversation from his mobile. At this time, a four wheeler vehicle of Tata Magic make bearing No. UP 25 AT 9731 collided with motorcycle of Radha Krishna resulting in damage to motorcycle and also causing grave and serious injuries to Radha Krishna, on account of which, he died. The said accident is alleged to have been caused on account of rash and negligent driving by driver of Tata Magic. Aforesaid accident was alleged to have been witnessed by passers by as well as those who were standing near the place of occurrence.
3. In respect of above mentioned accident, an F.I.R. was lodged against driver of vehicle i.e. Tata Magic and registered as Case Crime No. 118 of 2013, under sections 279, 337 and 338 IPC. Subsequently, Section 304 IPC was also added.
4. Post mortem of dead body of deceased was conducted at Government Hospital, Bareily.
5. On account of death of Radha Krishna, his dependants/ legal heirs filed MACP No. 2016 of 2013 (Smt. Heera Kali and four Others Vs. Ram Gopal Dubey and two others) impleading Ram Gopal Dubey Defendant-1 owner of vehicle of Tata Magic make, Defendant No.2 Nathu Singh driver of vehicle of Tata Magic Make and Defendant-3 Insurance Company.
6. Claimants claimed that they are entitled to compensation on account of death of Radha Krishnan in a road accident. They also claimed compensation for funeral expenses, compensation towards loss of estate, compensation towards loss of companionship and compensation towards medical expenses of deceased.
7. Claim filed by claimants was contested by defendant-respondents (hereinafter referred to as 'defendant'). Defendant-1 Nathu Lal owner of vehicle filed his written statement and denied allegations made in claim petition. In fact Defendant-1 denied the factum of accident, having been caused by vehicle belonging to him i.e. Tata Magic bearing Registration No. UP 25 A T 9731. Apart from above, it was also pleaded that the owner of motorcycle, driver of motorcycle and Insurance Company have not been impleaded as defendant's in claim petition. Disputed vehicle of Tata Magic make was insured with National Insurance Company and on the date of accident aforesaid vehicle was duly insured. Apart from above, all documents pertaining to vehicle of Tata Magic were complete in all respects. Defendant-2 is the driver of vehicle, who was having valid and effective driving license on the date of alleged accident. No accident was caused by defendant No.2. However, in case, Tribunal comes to conclusion that claimants are entitled for compensation then liability to pay same is upon Defendant-3, Insurance Company.
8. Defendant-3, Insurance company also filed its written statement denying allegations made in claim petition. According to Insurance Company no accident took place on 13.9.2013 at 2:30 pm near Devi Brick Field situate on Pilibhit Bisalpur Road. Vehicle No. UP 25 AT-9731 of Tata Magic make was not being driven rashly or negligently. In case it is proved that accident did take place, the same was on account of rash and negligent driving as well as mistake of the driver, driving motorcycle no. UP 26 K 7661; driver of aforesaid motorcycle was not having valid and effective license; driver of motorcycle was contributory liable for the said accident. Income of deceased was not Rs. 20,600/- from salary and Rs. 30,000/- from agriculture; defendant No.1 owner of vehicle had given vehicle to such person who was not having valid and effective license, as such, Defendant-2 Nathu Singh was not having valid and effective license on the date of accident nor the papers of vehicle of Tata Magic make were complete in all respects; consequently, vehicle Tata Magic was being driven contrary to terms of Insurance policy and therefore, defendant No.3 Insurance Company is not liable to pay any compensation.
9. On pleadings of parties, Tribunal framed following issues for consideration:
(I) Whether on 13.9.2013 at around 2:30 pm Radha Krishna while travelling from Pilibhit to Bhisalpur on his motorcycle bearing Registration No. UP 26 K 7661, stopped near Devi Brick Field, Vilalge Jasauli and thereafter parked his motorcycle beyond the metalled Road. While he was chatting a Tata Magic bearing Registration No. UP 25 AT 9731, which was being driven rashly and negligently by its driver collided with the standing motorcycle damaging the same and also injuring Radha Krisha, who ultimately, succumbed to the same.
(ii) Whether there is defect of non joinder of necessary and proper parties in the claim petition, inasmuch as owner, driver and insurer of the motorcycle involved in alleged accident, have not been impleaded as defendants.
(iii) Whether on the date and time of accident, driver of Tata Magic No. UP 25 AT 9731 was having valid and effective driving license.
(iv) Whether on the date and time of accident, Tata Magic No. UP 25 AT 9731 was duly ensured and whether the aforesaid vehicle was being driven contrary to terms of insurance policy, if yes, its effect.
(V) Whether there was contributory negligence on the part of deceased Radha Krishna in the accident.
(VI) To what relief are claimants entitled for. If yes, then how much is payable to each of claimants.
10. After aforesaid issues were framed, parties went to trial. Claimant appellants in order to prove their case, adduced Usha Devi, widow of deceased Radha Krishna as P.W.1, Uma Shanker as P.W.2 and Pradeep Kumar Verma as P.W.3. Apart from above, Claimants also filed documentary evidence, which has been detailed in paragraph 6 of impugned judgement. Defendants did not adduce any witness to prove their defence but filed only documentary evidence as is explicit from paragraph 7 of impugned judgement.
11. Issue nos. 1 and 5 were decided together. Tribunal held that accident which occurred on 13.9.2013 at 2:30 pm near Devi Brick Filed on Pilibhit-Bisalpur Road was caused by Tata Magic No. UP 25 AT 9731. The said accident occurred on account of rash and negligent driving by the driver of Tata Magic No. UP 25 AT 9731. There was no contributory negligence on the part of the driver of motorcycle i.e. Radha Krishna deceased.
12. In respect of issue No.2, it was concluded by Tribunal that there is no defect in claim petition by not impleading owner/driver and insurer of motorcycle bearing no. UP 26 K 7661 as accident was caused due to mistake of driver of Tata Magic vehicle and also on account of rash and negligent driving by driver of aforesaid vehicle. As such, owner, driver and insurer of motorcycle bearing No. UP 26 K 7661 are neither necessary nor proper parties in the claim petition.
13. While deciding, issue No.3 Tribunal concluded that on the date and time of accident, driver of Tata Magic Vehicle i.e. Defendant-2 was having valid and effective licence. As such, aforesaid issue was decided against Defendant-3 Insurance company.
14. Issue No.4 was decided in favour of Defendant-1 owner of vehicle i.e. Tata Magic No. UP 25 AT 9731. Tribunal upon consideration of material on record held that aforesaid vehicle was duly insured with Defendant-3, Insurance Company; on the date of accident vehicle was covered under Insurance Policy; all the documents pertaining to aforesaid vehicle, were valid, complete and effective on the date of accident; as such, aforesaid vehicle was not being run contrary to Insurance Policy.
15. Issue No.6 relates to income of deceased, quantum of deduction to be made from income of deceased towards personal expenses, claim of claimants under different heads. On behalf of Claimants, it was pleaded that deceased was working as Gram Panchayat Adhikari under the State Government. At the time of accident deceased was posted as Gram Panchayat Adhikari at Dilsanda Blok, District Pilibhit. Monthly income of deceased was Rs. 20,600/- from salary and additional income of Rs. 30,000/- per month from Agriculture. As such, monthly income of deceased was Rs. 50,600/-. Tribunal concluded that even after death of deceased, agricultural activity is being carried on by heirs of deceased, as such, there is no loss of agricultural income. Consequently, monthly agricultural income of deceased has to be excluded while calculating monthly income of deceased. Claimants filed pay certificate of deceased (Paper No. 66 Ga 1) to establish that total income of deceased was Rs. 20,905/- and after deduction, net salary payable to deceased was Rs. 19,805/-. Insurance company relying upon General Manager and Others Vs. N. Ramadevi and Others, 2008 ACC 358, pleaded that compensation has to be determined on the basis of carry home pay of deceased. Consequently, tribunal concluded that as per pay certificate, monthly salary of deceased shall be Rs. 19,805/-.
16. Having determined monthly income of deceased, second issue which fell for consideration before Tribunal was whether it is legal and natural heirs of deceased, who are entitled to compensation or it is dependents who are entitled for compensation. On behalf of Claimants, five persons were shown as dependants. Claimant-1 Smt. Heera Kali is mother of deceased, Claimant-2 Smt. Usha Devi is widow of deceased, Claimant-3 and 4 Harish Kumar and Avanish Kumar are minor sons of deceased, whereas Claimant-5 Anita Devi is married daughter of deceased. Claimants relied upon Manjari Bera Vs. Oriental Insurance Company Ltd. and Others, 2007 ACJ 1279 (SC), to buttress their contention that married daughter has also been held to be dependent of deceased father, for the purpose of payment of compensation under Motor Vehicles Act, 1988 (hereinafter referred to as 'Act 1988'). Reliance was also placed upon judgement of Apex Court in Branch Manager National Insurance Company Ltd Vs. Samoothi and Others, 2014 ACJ 1454, wherein it was held that married daughter is also entitled to payment of compensation under Act 1988 upon death of her father. Tribunal upon evaluation of pleadings, evidence as well as case law submitted by parties, concluded that even a married daughter is entitled to payment of compensation under Motor Vehicles Act.
17. In order to decide multiplicand, Tribunal concluded that since number of dependants/legal heirs of deceased is more than four, therefore, deductions have to be made to the extent of ¼ towards personal expenses as laid down by in Sarla Verma (Smt.) Vs. Delhi Transport Corporation and Another, 2009 (6) SCC 121. Consequently, Tribunal upon deduction of ¼ amount from monthly carry home salary of deceased i.e. Rs. 19,805/- arrived at conclusion that multiplicand shall be Rs. 19,805 - ¼ i.e. Rs. 14,853.75/- paise/-.
18. Having decided the multiplicand, Tribunal proceeded to decide multiplier which is to be applied on the above mentioned multiplicand. Again placing reliance upon Sarla Verma (Smt.) (Supra), Tribunal applied multiplier of 12 treating age of deceased in the slab of 46-50 years. As such, Tribunal determined Rs. 2,37,660/- as yearly income of deceased.
19. According to Tribunal since age of deceased fell within the slab of 46 to 50 years, therefore claimants are entitled to 30 % of yearly income of deceased towards future prospects while calculating amount of compensation payable as per scheme of section 166 of Act 1988. Accordingly, Tribunal awarded Rs. 71,298/- towards future prospects.
20. Tribunal awarded various amounts to Claimants as per the provisions of U.P. Motor Vehicles amended Rules, 2011. Tribunal awarded a sum of Rs. 5000/- towards funeral expenses. Rs. 5000/- towards loss of estate. Rs. 5000/- towards loss of companionship and Rs. 5,000/- towards loss of love and affection. Tribunal further awarded a sum of Rs. 78,904/- towards medical expenses.
21. Mr. Dilip Kumar Singh Chandel, learned counsel for Claimants has challenged impugned judgement and award by submitting that Tribunal while deducting ¼ amount from income of deceased has firstly calculated yearly income i.e. Rs. 2,37,660/- by treating monthly income of decease as Rs. 19,805/-, thereafter, on the basis of aforesaid yearly income, 30 % was granted towards future prospects i.e. Rs. 71,298/-. Both the amounts i.e. 237660 and 71298 were added together i.e. Rs. 3,08,958/- and ¼ deduction was made from aforesaid amount of Rs. 308958 i.e. Rs. 7,07,240 which is illegal. According to learned counsel for claimants, ¼ amount should be deducted from multiplicand and not from the gross upon adding yearly income and 30% future propects. It is next contended that Tribunal has wrongly applied multiplier of 12, whereas, correct multiplier applicable in present case as per judgement of Apex Court in Sarla Verma (Smt.)(Supra) will be 13. He further submits that as per aforesaid judgement Claimants are entitled to Rs. 15,000/- towards funeral expenses whereas, Tribunal has awarded only Rs. 5000/-. Further under the heading loss of estate, Tribunal has awarded Rs. 5,000/- whereas, according to aforesaid judgement claimants are entitled to Rs. 15,000/-. Tribunal has awarded Rs. 5000/- towards loss of companionship and Rs. 5000/- towards loss of love and affection whereas according to judgement of Apex Court in Sarla Verma (Smt.)(Supra), Claimants are entitled to Rs. 40,000/- towards loss of consortium. Therefore, claimants are entitled to additional payment of Rs. 40,000/- under aforesaid head.
22. Mr. S.B.L. Gaur, learned counsel for Insurance Company has opposed the submissions made by learned counsel for appellant. According to counsel for Insurance Company, there is no occasion for making any enhancement in the amount of award awarded by Tribunal. To the contrary, the amount awarded by Tribunal to claimants is liable to be reduced as deduction should have been made to the extent of 1/3 and not ¼ as claim petition shall be maintainable only on behalf of widow and two minor children of deceased.
23. Before proceeding to evaluate, submissions urged on behalf of claimants, it would be appropriate to reproduce the chart depicting the calculation made by Tribunal for determining compensation payable to Claimants:-
"¼1½ e`rd dh LkHkh dVkSfr;ksa ds ckn okf"kZd vk; ¾ 2]37]660¾00
¼2½ Q~;wpj izkLiSDV~l 30 izfr'kr $ ¾ 71]298¾00
¼3½ dqy vk; ¾ 3]08]958¾00
¼4½ O;fDrxr [kpksZ ij gksus okyh dVkSrh 1@4 ¾ 77]240¾00
¼5½ [kpksZ dh O;fDrxr dVkSrh ds ckn izfrdj ¾ 2]31]718¾00
x.kuk gsrq vk;
¼6½ 12 ds xq.kkad ls xq.kka djus ij izfrdj ¾ 27]80]616¾00
¼7½ nkg laLdkj ij gksus okyk O;; ¾ 5000¾00
¼8½ lEink gh gkfu ds fy, /kujkf'k ¾ 5000¾00
¼9½ lgp;Z dh gkfu ds fy, /kujkf'k ¾ 5000¾00
¼10½ izse vkSj Lusg dh gkfu ¾ 5000¾00
¼11½ ;kph ds bykt ij O;; gqbZ /kujkf'k ¾ 78904¾00
dqy izfrdj dh /kujkf'k ¾ 28]79]520¾00
¼vV~BkbZl yk[k] mU;klh gtkj] ikap lkS chl½
(1) Annual income of the deceased after all deductions = 2,37,660=00
(2) Future prospects 30 percent + = 71,298=00
(3) Total Income = 3,08,958=00
(4) ¼ deduction on personal expenses = 77,240=00
(5) Income for calculation of compensation
after deduction of personal expenses = 2,31,718=00
(6) Compensation on multiplying by multiple of 12 = 27,80,616=00
(7) Expense on cremation = 5000=00
(8) Amount for loss of property = 5000=00
(9) Amount for loss of cohabitation (shachar) = 5000=00
(10) Loss of love and affection = 5000=00
(11) Amount incurred on treatment of the petitioner =78904=00
Total amount of compensation = 28,79,520=00
(Twenty lakh, seventy thousand, five hundred twenty)"
(English translation by Court)
24. It is an undisputed fact that the law with regard to applicability of relevant multipliar stands crystallized by judgement of Apex Court in Sarla Verma (Smt.) (Supra). Apex Court in aforesaid judgement has held that in case deceased falls within the age group of 46 to 50 years, then in that eventuality, multiplier applicable shall be 13. Therefore, Tribunal has erred in applying multiplier of 12.
25. Further, in above mentioned judgement, Court has also formulated the quantum of compensation payable towards funeral expenses, loss of estate and loss of consortium. Accordingly, as per aforesaid judgement, claimants are entitled to receive Rs. 15,000/- towards funeral expenses, whereas Tribunal has awarded only Rs. 5000/-. As such, claimants are entitled to additional sum of Rs. 10,000/- payable towards aforesaid head. Tribunal has awarded a sum of Rs. 5,000/- towards loss of estate, whereas according to above quoted judgement, claimants are entitled to a sum of Rs.15,000/-. As such, claimants are entitled to additional sum of Rs. 10,000/- towards payment under aforesaid head. Tribunal has awarded a sum of Rs. 5,000/- towards loss of companionship and Rs. 5,000/- towards loss of love and affection. No amount has been awarded towards loss of consortium. Consequently, Claimants are entitled to Rs. 40,000/- towards payment under aforesaid head.
26. Tribunal has awarded 30 % of income of deceased towards future prospects. Percentage awarded by Tribunal towards loss of future prospects is as per judgement in Sarla Verma (Smt.) (Supra). The only question up for consideration is "whether 30% has to be awarded out of the salary of deceased or after deduction towards personal expenses from monthly salary of deceased". As per judgement of in Sarla Verma (Smt.) (Supra) case, compensation towards future prospects has to be calculated from monthly income of deceased after deduction towards personal expenses. In present case number of dependents is 4 , therefore, ¼ deduction has to be made from monthly salary. As such monthly salary of deceased shall be 19,805- 1/4= 14,854. This monthly income of Rs. 14,854/- when multiplied by 12 will give the yearly income of deceased as Rs. 1,78,248/-. Multiplying aforesaid yearly income of deceased with multiplier of 13 which is applicable in present case as per Sarla Verma (Smt) (Supra), amount of compensation payable shall be 1,78,248 x 13 = 23,17,224/-. As such, claimants shall be entitled to 30% of Rs. 23,17,224 i.e. Rs. 6,95,167/- towards future prospects.
27. On behalf of Insurance Company, it was vehemently urged that claim petition could have been filed only on behalf of widow and two minor sons of deceased. Consequently, deduction to the extent of 1/3 towards personal expenses should have been made by Tribunal, instead of 1/4. We have already considered the aforesaid issue and held that even married daughter of deceased can claim compensation. Consequently, the number of Claimants has to be on the principle of dependants and not legal and natural heirs and representatives. Therefore, claim petition filed by married daughter also was maintainable. Consequently, the number of Claimants becomes four, Tribunal rightly deducted ¼ of monthly income towards personal expenses of deceased. No other point has been pressed on behalf of defendant Insurance Company.
28. In view of discussions made herein above, FAFO No. 1248 of 2017 filed by claimants is liable to succeed partly, it is, accordingly allowed in part. Judgement and award rendered by Tribunal in MACP No. 216 of 2013 (Smt. Heerakali and Others Vs. Ram Gopal and Others) is hereby modified. Claimants shall be entitled to compensation to the tune of Rs. 23,17,224/- plus a sum of Rs. 6,95,167/- towards future prospects. Tribunal has already awarded a sum of Rs. 27,80,616/-, therefore, from 23,17,224+ 6,95,167= 30,12,391/- a sum of Rs. 27,80,616 shall be deducted i.e. Rs. 2,31,775/-, which is the balance amount payable towards compensation. Rs. 10,000/- towards funeral expenses, Rs. 10,000/- towards loss of estate, Rs. 40,000/- towards loss of consortium along with interest at the rate of 9% from date of application upto date of payment. Defendant-3 National Insurance Company Ltd. shall deposit aforesaid amount with Tribunal within a period of one month from today. FAFO No. 1806 of 2015 filed by Insurance Company is liable to be dismissed. It is accordingly dismissed.
Order Date :- 14.10.2019 Arshad