Allahabad High Court
Smt. Neelam Gupta And 2 Others vs United India Insurance Co. Ltd And 2 ... on 2 August, 2021
Author: Subhash Chand
Bench: Kaushal Jayendra Thaker, Subhash Chand
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 37 Case :- FIRST APPEAL FROM ORDER No. - 545 of 2021 Appellant :- Smt. Neelam Gupta And 2 Others Respondent :- United India Insurance Co. Ltd And 2 Others Counsel for Appellant :- Ankur Mehrotra Counsel for Respondent :- Amit Singh Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Subhash Chand,J.
1. Heard Shri Ankur Mehrotra, learned counsel for the appellants and Sri Amit Singh, learned counsel for the respondent-insurance company.
2. This appeal, at the behest of the claimants, challenges the judgment dated 03.01.2020 passed by Presiding Officer Motor Accident Claims Tribunal, Ghaziabad (hereinafter referred to as 'Tribunal') in Claim Petition No.464 of 2010 awarding a sum of Rs.27,19,838/- with interest at the rate of 7% as compensation.
3. The accident is not in dispute. The respondents concerned have not challenged the liability imposed on them. The issues to be decided are the quantum of compensation awarded and whether deceased was also negligent in causing the accident. The deceased along with the claimants were going for worshipping at the temple of Kaila Devi on the fateful day i.e. 7.7.2010 when the deceased who was driving the Maruti Wagon R No UP 14 R 5355 was driving the vehicle on its correct side at about 11 hours when the vehicle reached Village Bada Gaon, Vehicle No.RJ 34 G 0950 being driven on wrong-side rashly and negligently dashed with the Maruti Car. The driver due to accidental injuries was in critical condition and no local hospital admitted him, he was shifted to Appolo Hospital Delhi where he succumbed to the injuries. The claimants contended that the accident occurred due to the negligence of driver of the other vehicle. The FIR was lodged against the driver of the offending vehicle. The deceased was an Engineer by profession in LG Electronic India Private Limited and was having a salary of Rs.31,184/- per month. The deceased was a bachelor and was 26 years of age. The deceased left behind him his father, mother and sister. The driver and the owner of the other vehicle involved in the accident did not appear before the tribunal nor they have appeared before this Court.
4. It is submitted by learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income which is required to be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and in view of U.P. Motor Vehicles Rules, 1998 (hereinafter referred to as the U.P. Rules, 1998). It is further submitted that amount under non-pecuniary heads which is granted and the interest awarded by the Tribunal are on the lower side and requires enhancement. It is submitted that the issue of negligence also requires to be redetermined. The tribunal considered the deceased to be contributor of accident have taken place despite the fact that the driver who is the author of the accident against whom the charge sheet had been laid did not appear nor stopped into witness box. It is further submitted that as the deceased was survived by his parents and sister, the deduction towards personal expenses of the deceased should be 1/3rd as per U.P. Rules, 1998 and not half and other pecuniary benefits should not have been reduced from income of deceased. In support of his submission, learned counsel for the appellants has relied on the judgment of the Supreme Court titled Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830. It is submitted that the Supreme Court's decision was cited before the tribunal but tribunal has deducted bonus, maintenance allowance, PF and gratuity from commuptable income holding that they are not part of the salary and, therefore, the tribunal held that the same cannot be considered to be part of the income. The tribunal added 40% to the salary, which should be 50%. It is submitted by learned counsel for appellant that most unfortunately, the tribunal has considered the judgment of Sandeep Khanduja v. Atul Dande and Ors., (2017) 3 SCC (Crl) 178. The claim petition was not filed under Section 163-A of the Motor Vehicles Act, 1988 (referred as the Act) Act but was filed under Section 166 of the Act and hence, it appears that the learned tribunal has granted multiplier of 18. The tribunal deducted 30% holding the deceased to be also negligent.
5. Learned counsel for the respondent submitted that the compensation awarded by the Tribunal is just and proper and does not call for any enhancement rather the multiplier awarded by the Tribunal is on higher side and it is required to be reduced.
6. It is submitted by learned counsel for appellants that the learned Tribunal should have gone by the judgment in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and the decision circulated in FAFO No.199 of 2017, National Insurance Company Limited v. Luv Kush and another. It is submitted that the tribunal has relied on the Rules whereas the judgment of the Apex Court in Sandeep Khanduza is for petitions under Section 163-A of the Act. The Tribunal has granted multiplier of 18 and therefore the same may be not disturbed. The non pecuniary compensation could not have been granted as per the schedule to the Act which has been found to be faulty by the Apex Court. It has to be as per the judgments of Supreme Court decision in Pranay Sethi (Supra) where it is held that parents are entitled to filial consortium, funeral charges and for love and affection. The judgment in Pranay Sethi (Supra) though has been considered by the learned tribunal has misguided itself by relying on Rule 4 of the U.P. State Motor Vehicle Rules, 2011 which could not be done as the tribunal is under an obligation that it should have considered grant of filial consortium and other pecuniary benefits, no doubt the rule if they provide for a better compensation and provide for beneficial and liberal interpretation they can be relied on but if the benefit is less compared to the judicial pronouncement, they will not prevail and, therefore, also the judgment of the tribunal requires modification.
7. Heard the learned counsels for the parties.
8. The issue of negligence has to be decided from the perspective of the law laid down by the Courts.
9. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance. Negligence can be both intentional or accidental which can also be accidental. More particularly, term negligence connotes reckless driving and the injured of claimants 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.
10. The principle of contributory negligence has been discussed time and again. A person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place.
11. 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.
20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).
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
12. The latest decision of the Apex Court in Khenyei (Supra) 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 minimised if he had taken care. In this case the deceased was driver of vehicle. The learned tribunal has lost the sight of one aspect that the truck came on the wrong side which is clear from the deposition of eye witness. The tribunal has considered the sight plan which is not contradictory to the version given by the eye-witness. The tribunal believed the eye witness, the FIR and charge sheet is filed against the driver of the other vehicle. The driver of the other vehicle did not sustain any injury. The statement recorded on 17.7.2010 of one of the claimants is also very clear who has categorically mentioned that accident occurred due to rash and negligent driving of the other vehicle driver.
13. We hold that the driver of the other vehicle came on the wrong side. The site plan shows and has stated that the son was driving his vehicle at normal speed but they also told to drive the vehicle at a moderate speed. We hold the driver namely deceased to be 20% was travelling negligence we modify the findings to the said effect.
Compensation:-
14. Having heard the counsels for the parties and considered the factual data, the accident occurred on 07.07.2010 causing death of Abhishek Gupta who was 26 years of age and left behind him, parents and unmarried sister. The Tribunal has assessed the income of the deceased to be Rs.25,462/- per month. The deceased was Senior Engineer in LG Electronics. PW-1 who is the father of deceased stated that the deceased was working as Senior Engineer in LG Electronics India Private Ltd, Greater NOIDA at a very young age. PW-2, Panchgopal who is the Assistant Manager Department HR of LG Electronics Private Ltd. stated that deceased was employed on the post of Senior Engineer-11 from 19.9.2007 to 7.7.2010. On 7.7.2010 that is on the faithful day when the accident occurred, the deceased succumbed to the injuries. The deceased was in the pay band of Rs.37,4212/- and he was also entitled for bonus. His income tax was also deducted. At the time of his initial appointment, his basic salary was Rs.10,100/- per month and bonus was depending on performance of his work, HRA was Rs.5,050/- per month. Medical Allowance was Rs.1250/- per month, Maintenance Allowance was Rs.3200/- per month, LTA was Rs.10,000/- per month, PF was Rs.1212/- per month and gratuity deduction was Rs.412/- per month, when the deceased passed away his basic salary was Rs.15,558/- per month. The income according to counsel for appellant has not properly been calculated. The submission that the deceased was Senior Engineer in LG Electronics is not in dispute even if we consider the income of the deceased in the year 2010 and even if we go by the judgments of the Apex Court wherein it has been held that income as on date of accident would be applicable. It is submitted that income be considered to be Rs.30,000/- per month. The tribunal has considered the income to be Rs.25,000/- and has misdirected itself and has misinterpreted the judgment titled Raghuvir Singh Matolya & Ors. v. Hari Singh Malviya & Ors., Law 2009 (2) ACCD 1120 SC.
15. The recent judgement of Vimal Kanwar (Supra) wherein para 19 & 20 of the said judgment the Apex Court has held as follows:-
"19. The first issue is "whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction." The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. The following was the observation and finding of this Court:
"35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual."
20. The second issue is "whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction." "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as "Pecuniary Advantage" that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act."
16. The judgement of Vimal Kanwar (Supra) will permit us to upturn the said finding. The amount to be added would be 50% as he was below the age of 40 years and though may not be in government job. The deceased was bachelor as direction of the Apex Court 50% has been deducted. To which as the deceased was in the age bracket of 26-30 years, 50% of the income will have to be added as future loss of prospects in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and U.P. Rules, 1998. As far as deduction towards personal expenses of the deceased is concerned, it should be 1/2 as the deceased was a bachelor. The Tribunal considered the multiplier of 18 which is bad as per the decision in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 will have to be followed. The judgment of Sandeep Khanduja (supra) can't be made applicable, hence multiplier of 17 would be admissible. The amount for non pecuniary damages would be Rs.15,000/- for loss of funeral expenses, Rs.40,000/- for loss of filalial consortium with 10% increase every three years. The rounded figure would be Rs.50,000/- for the mother and father both as per Section 140 of the Motor Vehicles Act.
17. The total compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) read with and U.P. Rules, 1998 is computed herein below:
i. Income Rs.30,000/- p.m. ii. Percentage towards future prospects : 50% namely Rs.15,000/-
iii. Total income : Rs. 30,000 + Rs.15,000 = Rs.45,000- iv. Income after deduction of 1/2 : Rs.22,500/-
v. Annual income : Rs.22,500 x 12 = Rs.2,70,000/-
vi. Multiplier applicable : 17 (as the deceased was in the age bracket of 26-30 years) vii. Loss of dependency: Rs.2,70,000 x 17 = Rs.45,90,000/-
viii. Amount under non pecuniary heads : Rs.50,000/-
ix. Total compensation : Rs.46,60,000/-
18. The amount will stand reduced by 20% as we have considered the negligence of the driver of car. Fresh award widhdrawn by the tribunal in the Claim Petition No. 464 of 2010.
19. 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."
20. 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 along with additional 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.
21. 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.
22. 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.
23. 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 along with additional 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.
24. 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.
25. This Court is thankful to both the counsels to see that the matter is disposed of.
Order Date :- 2.8.2021 A.N. Mishra / Ram Murti