Allahabad High Court
Ravi Shanker Tiwari And Another vs Praveen Kumar Jain And 3 Ors. on 2 February, 2018
Author: Irshad Ali
Bench: Bala Krishna Narayana, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 4 Case :- FIRST APPEAL FROM ORDER No. - 2548 of 2013 Appellant :- Ravi Shanker Tiwari And Another Respondent :- Praveen Kumar Jain And 3 Ors. Counsel for Appellant :- Ram Singh Hon'ble Bala Krishna Narayana,J.
Hon'ble Irshad Ali,J.
(Delivered by Hon'ble Irshad Ali,J.) Heard learned counsel for the parties.
The instant First Appeal From Order has been filed challenging the judgement and order dated 25.5.2013 passed in Motor Accident Claim Petition No. 262 of 2011 by Motor Accident Claim Tribunal, deciding the claim set up by the appellant of Rs. 11,74,000.00 by awarding Rs. 1,26,500.00 with the interest @ 6% per annuam.
Brief facts of the case are that the son of the appellant claimant was returning from Chitrakoot on 1.6.2011 on a motorcycle bearing registration no. U.P. 71 L-2292 along with his friend Amarjeet Singh and at Fatehpur Lucknow by-pass crossing, P.S. Kotwali while he was on the way to his village Adampur at about 12.00 hours, due to rash and negligent driving of the truck bearing registration no. U.P. 78 N-4611, the truck collided with his motorcycle due to which the son of the appellant and Amarjeet Singh were seriously injured and in a serious condition Parul Tiwari (deceased) was admitted in a hospital at Kanpur where he died during treatment on 8.6.2011. The tribunal on examination of evidence, material on record and on the basis of the age of the parents of Parul Tiwari (deceased) has awarded compensation of Rs. 1,26,500.00.
Learned counsel for the appellant submitted that the multiplier applied on the basis of the age of the parents of the deceased is not legally sustainable in law in fact multiplier should have been selected on the basis of the age of deceased and in support of his argument, he relied upon the judgement in the case of Managing Director Banglore Metropolitan Transport Corporation Vs. Sarvo Jamma 2008 (2) TAC 756. Next submission of learned counsel for the appellant is on the point of notional income of the deceased Parul Tiwari is that the deceased was unmarried and meritorious student and the income of the deceased Parul Tiwari should have been fixed by taking into consideration the minimum wages of Rs. 250/- per day which comes to the Rs. 7,500/- per month. Thus, the assessment of income made by the tribunal as Rs. 300/- is not justifiable in law and on this issue he relied upon the judgement of Division Bench of this Court in the case of Oriental Insurance Company Ltd. Vs. Shashi Devi and Others 2015 (3) T.A.C. 339 (ALL.) and submitted that the minimum income should have been fixed as Rs. 4,500/- per month on notional basis and after deduction of 1/2 towards the personal expenses, the compensation should have been awarded. He further submitted that the tribunal has committed a manifest error of law while passing the impugned judgement in not considering the claim for the grant of future prospect in the present case. Learned counsel for the appellant next submitted that under the conventional head the claimant-appellant have been awarded only Rs. 20,000/-. The claimant-appellants are entitled to get under the aforesaid head Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate.
We have heard the learned counsel for the parties and perused the impugned judgement and award as well as material brought on record.
The submission of learned counsel for the appellant that the multiplier should have been applied in the case of the deceased taking into consideration the age of the deceased Parul Tiwari has substance in the judgement relied upon by the learned counsel for the appellant in the case of Managing Director Banglore Metropolitan Transport Corporation Vs. Sarvo Jamma (supra), it has been held that while considering the multiplier, the age of the deceased is relevant consideration and the age of the deceased at the time of death was 21 years. Accordingly, in view of the judgement in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another 2009 (6) SCC 121 as well as in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others 2017 ACJ 2700, the multiplier of 18 is applicable.
Next argument of learned counsel for the appellant is that the notional income of the deceased should have been Rs. 4,500/- and not Rs. 3,000/- and has relied on the judgement of Apex Court in the case of Oriental Insurance Company Ltd. Vs. Shashi Devi and Others (supra) in which the issue has been considered and has been held that minimum income on notional basis should be Rs. 4,500/- per month. Thus, we hold that the Tribunal has committed error in fixing the notional income of the deceased. The notional income of the deceased should have been Rs. 4,500/-. Thus, to the said extent, the order of the tribunal is not sustainable in law. The notional income of the deceased is hereby fixed as Rs. 4,500/-. The tribunal committed apparent error in not awarding any amount towards the future prospects of the deceased while determining his income. The deceased at the time of his death was aged about 21 years and his notional income assessed by the tribunal as Rs. 500/- per month, tribunal while determining his income ought to have added 40% of his notional income towards future prospects as ruled by constitutional Bench in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others (supra).
On the issue of payment of conventional head to the claimant-appellants in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others (supra), the Hon'ble Apex Court in paragraph 61(VIII) has held that the reasonable figures on conventional heads, namely, loss of estate and funeral expenses should be Rs. 15,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. Paragraph 61 of the aforesaid judgement is quoted herein below :-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was 48 between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years".
Accordingly, we allow the appeal and set aside the judgement and award dated 25.5.2013 passed by the Tribunal and enhanced the compensation awarded by the Tribunal in the following manner :-
Sl. No. Heads Calculation i Income Rs. 4,500/- per month ii 40% of (i) above to be added as future prospects (Rs. 4,500 + 1,800) = Rs. 6,300/- per month iii 1/2 of (ii) deducted as personal expenses of deceased. Rs. 6,300-3,150 = Rs. 3,150/- per month iv Compensation after multiplier of 18 (Rs. 3,150 x 12 x 18) = Rs. 6,80,400/-
v For non-pecuniary damages (Funeral Expenses and loss of estate) Rs.15,000+15,000=Rs. 30,000/- vi Total compensation Rs. 7,10,400/-
In view of the above, the compensation of Rs. 1,26,500/- awarded by the Tribunal is enhanced to Rs. 7,10,400/-. The Insurance Company is directed to pay the enhanced amount to the claimant-appellants @ 7% simple interest per annuam from the date of presentation of claim petition before the Tribunal. In view of the aforesaid observation and direction, the appeal succeeds and is allowed. No order as to costs. Order Date :- 2.2.2018 Manoj