Allahabad High Court
Smt. Rahisa Begum Since Deceased And ... vs Sri Susheel Chandra Gupta And Another on 2 September, 2021
Equivalent citations: AIRONLINE 2021 ALL 2677
Author: Subhash Chand
Bench: Kaushal Jayendra Thaker, Subhash Chand
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 13.08.2021 Delivered on 02.09.2021 Court No. - 37 Case :- FIRST APPEAL FROM ORDER No. - 724 of 2010 Appellant :- Smt. Rahisa Begum Since Deceased And Another Respondent :- Sri Susheel Chandra Gupta And Another Counsel for Appellant :- Mohd. Naushad Siddiqui Counsel for Respondent :- Subash Chandra Srivastava,Dinesh Chandra Srivastava Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Subhash Chand,J.
(Per Hon'ble Subhash Chand,J.)
1. Heard Sri Mohd. Naushad Siddiqui, learned counsel for appellant and Sri Dinesh Chandra Srivastava, learned counsel for insurance company.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 02.09.2009 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.16, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 560 of 2006 awarding a sum of Rs.9,500/- with interest at the rate of 7.5% as compensation, under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as M.V. Act).
3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The Insurance Company has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded.
4. The facts as they are collated go to show that the deceased was having a permanent job. The Tribunal unfortunately did not compute the income, multiplier, had granted Rs.9,500/-. The Tribunal has held that the wife of the deceased Hasim Ali died and son of the deceased Kasim Ali is the sole claimant, he is major and married person, the learned Tribunal held that Kasim Ali was not dependant on the deceased and has held no amount under other heads could be granted and has misread the judgment and the learned Tribunal has held that the claimant is entitled only for the loss of estate. These findings are assailed on the ground that the provisions of Section 166 of the M.V. Act, 1988 and that the judgment of this Court in The Oriental Insurance Company Ltd. Vs. Mangey Ram and others, 2019 0 Supreme (All) 1067 and the recent judgment of the Apex Court in New India Assurance Company Vs. Urmila Shukla decided by the Apex Court on 6.8.2021 as far as compensation to be paid is concerned has to be applied for grant of compensation. The Apex Court has held that the claimants even if they are major sons their rights would not be diminished. The right in a motor accidents claim case arise on the date the accident occurs, the subsequent happenings will not bring an end to the right of the legal heirs. The widow being the first legal heir would be entitled to receive compensation as per the M.V. Act.
5. It is submitted that the order is perverse and against the well settled principles of law. The learned Tribunal has misread the judgment of the Allahabad High Court in which he has placed reliance. The term dependent has not found place in the Act. For computing compensation legal representative has to be seen whether son is dependent on the father or not has no relevance.
6. The counsel for respondent has stated that no fault can be found as with the decision of Tribunal, the sole surviving claimant is not dependant on the deceased. The case of contributory negligence is rightly decided as the Car was being driven by the deceased, which hit the tanker for which site plan was believed by the Tribunal and finding him negligent does not need interference.
7. Having heard the learned counsel for the parties, issue of negligence be considered from the perspective of the law laid down.
8. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured 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.
9. The principle of contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place.
10. 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
11. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
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 not the author or the co-author of the accident. On facts, the deceased was not plying the vehicle. Hence, the deduction of 50% from the compensation awarded is bad and is set aside.
13. The issue which has been decided by the Tribunal, as far as issue no.1 is concerned, the court below has come to the conclusion that driver of the offending vehicle has not come to the right side. The finding of fact regarding contributory negligence of the driver of the Maruti Car, we are of the considered opinion that the submissions made by the counsel for the claimant-appellant do not satisfy the conscious in this regard and that the findings as far as contributory negligence of the deceased is concerned, it cannot be interfered with. However, the contribution of the deceased in the accident would be 25% and not equal as the vehicles were of unequal magnitude. The deceased was himself driving the vehicle. The tanker dashed the car from the front side. The driver of the Truck had not appeared before the Tribunal. The P.W.2 Shiv Singh, is the eye witness of the accident, hence his evidence is relevant, which is reproduced as under:
"P.W.2-Shiv Singh, who is said to be eye witness of the occurrence, has stated that on 14.04.2006 at 9.45 p.m., near Dixit Market, Kalpi Road, Kanpur, he was standing and then, saw that a Tanker No. UP-78-T-6419 being driven rashly and negligently by it's driver, hit the Maruti Car No. UP-78-AD-1768 coming on wrong side from front side, as a result of which the driver of the alleged Maruti Car was seriously injured and the alleged Maruti Car was also badly damaged. Such accident was occurred due to rash and negligent driving of the Tanker's driver, who at fault. He had got lodged the FIR of this occurrence. The police also recorded his statement regarding the accident in question."
"In this very case, the driver of the offending vehicle i.e. Tanker's driver was the most important witness of the alleged accident but he has not dared to come in the witness box. In the absence of any unexpected development, it was for him to explain as to how the accident took place but no such explanation has been given by him in respect of the alleged accident. Under these circumstances, I have no valid reason to disbelieve the statements of the witnesses, who have examined in the court in respect of the accident in question, particularly, when no oral or documentary evidence has been adduced on behalf of the opp. parties.
From the perusal of the site-plan paper no.21-C, it reveals that the mark ''A' has been shown as the place of occurrence. It is crystal clear that the tanker was being driven by it's driver on wrong side of the road, hit the Maruti Car on front side. There is head on collision between two vehicles involved in the alleged accident.
From the discussions made above, I come to the conclusion that the accident in question was occurred due to contributory negligence on the part of the drivers of both the vehicles involved in the alleged accident, on the alleged date, time and place."
14. The driver of the Tanker did not appear before the Tribunal despite that the learned Tribunal has returned the finding that deceased was also negligent. The judgments of Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and others decided on 05.08.2002 in Appeal (Civil) No. 5436 of 1994, (2) Raj Rani and others Vs. Oriental Insurance Company Limited and others decided on 06.05.2009 in Civil Appeal No. 33-3318 of 2009 (Arising out of SLP ( C) Nos. 2792-27793 of 2008) and (3) Archit Saini Vs. Oriental Insurance Company Ltd. And others, 2018 ) AIR (SC) 1143, will also permit us to revaluate the percentage of the negligence of the deceased. The reason being the Tanker was being driven in rash and negligent when hit the Maruti Car, just because there was head collision of both the vehicles involved, only because of that it cannot be said that drivers of both the vehicles had contributed to the accident having taken place. We are unable to accept the submissions of the counsel for respondents that the deceased was more negligent but we uphold the finding of negligence of the driver of the Maruti Car, but we cannot hold him negligent even to the tune of 10%. From the attending circumstances also and the findings of fact no reasons are given why in last paragraphs the learned Tribunal has returned the finding that drivers are negligent.
15. The Tribunal has held that the deceased too was negligent in driving the vehicle. The reasoning given by the Tribunal to hold the deceased negligent and that he had contributed to 50% of the accident is perverse, just because there was collision of two vehicles, and that the driver of the car was having valid driving license and the registration of the vehicle was there and just because the the license of the deceased was not produced before the Tribunal, it cannot mean that he was negligent. The ocular version of P.W.3 on the contrary goes to show that the deceased was driving his Maruti Car on his correct side. Thus, the finding on facts is not only bad in law but is perverse, therefore, we hold that the Tribunal has committed an error in holding the deceased to have contributed to the accident having taken place. The vehicle involved in the accident is Car and Tanker. This finding of Tribunal is perverse because the driver of Tanker has not been stepped in witness box. The Tanker was driven on the road on wrong side, despite that without assigning any reason negligence to the tune of 50% is attributed, is perverse. The Tribunal is expected to give reasons for the finding it arises that.
COMPENSATION:-
16. Learned counsel for appellant has relied on the decision of the Apex Court titled as Montford Brothers of St. Gabriel and another Vs. United India Insurance and another, 2014 1 ACC 461 and on the judgment of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and the learned counsel for respondent has relied on the decision of Apex Court in National Insurance Company Ltd. Vs. Birender and others, 2020 LawSuit (SC) 26, so as to contend that the dependents of the deceased, who has received benefits would not be entitled for the same. The learned counsel for the appellant has also relied on the said judgment.
17. Learned counsel for appellant has further relied on the authoritative pronouncements of this High Court in Oriental Insurance Company Ltd. Vs. Mangey Ram and others (Supra), Uttar Pradesh State Road Transport Corporation Vs. Tara Devi, 1995 LawSuit (All) 13, and Padma Devi Vs. .P. State Road Transport Corporation, 1988 LawSuit (All) 235, to contend that non grant of compensation except non pecuniary damages is against mandate of this Court.
18. It is submitted that the Tribunal has not granted any amount towards future loss of income to the claimants 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. It is further submitted that the multiplier, amount under non-pecuniary heads are not awarded. The interest awarded by the Tribunal is on the lower side and requires enhancement.
19. Learned counsel for respondent-insurance company has vehemently submitted that the compensation cannot be granted to the appellant and the grant of compensation by the Tribunal is justified as the legal heir or dependant of the deceased, namely, the widow passed away during the pendency of litigation. The sole heir is not the dependant and was not dependant, who is legal heir and therefore, he is not entitled to the benefit other than granted by the Tribunal known as non pecuniary damages and therefore, the order of the Tribunal does not call for any interference or enhancement. The rate of interest granted also does not call for any interference.
20. Recently the Division Bench in which one of us (Hon'ble K.J. Thaker) had an occasion to deal with the question of the amount which would be admissible to the family members of the deceased where the family members were admittedly major. The judgment titled as Satish Chand Sharma (deceased) and three others Vs. Manoj Kumar and another F.A.F.O. No. 3160 of 2018 decided on 26.03.2021, therefore, it is submitted by the counsel for appellant that non grant of any amount to the legal heir is bad in the eye of law.
21. The motor accident claim is based on the fact that the right to sue would survive on the legal representative on the date of incident occurred. The original claimant widow would be entitled to the compensation and the right to compensation would accrue on the date of the accident. It would be beneficial for us to reproduce the provisions of Sections 166, 168 and 169 of the M.V. Act, 1988.
"166. Application for compensation.-- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) * * * * (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act."
"168. Award of the Claims Tribunal.-
(1) ..................................................
(2) ..................................................
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
"Section - 169. Procedures And Powers Of Claim Tribunals.-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.
22. The recent judgment of Apex Court in Oriental Insurance Company Vs. Kahlon @ Jasmali Singh @ Kahlon, LL 2021 SC 382, will enure also for benefit of the appellants herein. The compensation in these kind of litigation will accrue on the date of the accident. The legal heir comprised of wife, namely, the widow and the son. The provisions of Section 166 of the Motor Vehicle Act does not provide that claimants should be dependant of deceased. The term dependant is not mentioned in Section 166 of Act, it is legal representatives and therefore, not granting any amount under the head of loss of income for the loss of estate to the widow of the deceased is arbitrary and requires to be set aside and quashed.
23. We will have to deduct what was the tax the deceased was liable and therefore, the submission of counsel for appellant that his income should be considered as Rs.40,000/- per month being a salaried person has to be accepted to which as per the Uttar Pradesh Rules, 1998 and the judgment of New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021SC 359, we deem it fit to add the amount of future loss of income as he was below with the age of 50 years, hence 30% will have to be added, which would come to Rs.12,000/- per year. The deceased was survived by his widow and son, therefore, 1/2 will have to be deducted towards the personal expenses of the deceased and multiplier would be 13 as the deceased died in the age bracket of (46-50 years). As far as amount under the head of non-pecuniary damages are concerned, it should be Rs.70,000/- will have to be added in view of the decision of the Apex Court in Pranay Sethi (Supra) plus 10% increase for three years and out of which 10% will have to be deducted for negligence of the deceased.
24. In view of the decisions cited before us, it is very clear that in provisions of Section 166 of the Motor Vehicle Act, the word legal representative is the crux of the matter. A widow will fall in Clause (1)(a) of legal representative and therefore, it cannot be said that the widow will not be entitled to any amount under law of compensation. Had the matter been decided immediately after it was filed would Tribunal have not granted the amount, the answer is it would have cause of action arises on the day on which the accident occurs. In this view of the matter, the finding of the Tribunal is contrary to the well settled legal principles. The judgment in 1988 ACJ page 667 (Alld) and 1996 (1) TAC page 614 (Alld) holding that an adult person having wife and children are not entitled for any compensation and they cannot be deemed to be dependant on his father or mother. This finding in the year 2009 is not sustainable in view of decision in the case of Padma Devi (Supra).
25. The decisions cited by the counsel for appellant shall have recent origin and which relate to the definition of legal representative and the fact that term legal representative has been given very wide connotation as has been in the judgment of Montford brothers (Supra) because the term legal representative has not been given in the Motor Vehicle Act but Section 2(11) of Civil Procedure Code will have to be taken into consideration.
26. We would alter the principle of deduction for personal expenses. The deceased had a major son, who cannot be said to be dependant on father or mother. The only dependant on him would be his widow and therefore, it can be safely said that he would be spending half of the income on himself being salaried person and therefore, Rs.52,000/- would have to be halved.
27. We do not disturb the rate of interest granted by the Tribunal looking to the fact that appeal has remain pending for no fault of the insurance company, hence we do not deem it fit enhancing the rate of interest.
28. Having heard the counsel for the parties and considered the factual data, this Court found that the accident occurred on 14.4.2006 causing death of Hasim Ali who was 48 years of age and left behind him, his widow and son. The deceased who was working as Senior Operator (Field) in Indian Oil Corporation and was getting salary Rs.43,501/- per month. Out of which permissible deductions under Income Tax would be deducted, we round up the income at Rs.40,000/- per month. The deceased was died at the age of 48 years (46-50 years), hence 30% will have to be added in view of the decision of the Pranay Sethi (Supra).
29. We have come to the conclusion that the deceased had also contributed to the accident taking place, reason being though the Tribunal has not given its reasoning for holding him negligent. The impact of the accident would show that there was some contributory negligence on the part of the deceased and therefore, we hold the deceased upto 10% negligent.
30. The deceased being married, the deduction towards personal expenses of the deceased should be 1/3 but here as narrated above it would be on the dependant namely widow, would be 1/2 in view of the decisions relied on by the counsel for appellant. As far as the multiplier is concerned, the deceased being in the age bracket of 46-50 years, it should be 13 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 12.
31. Hence, the total compensation payable to the appellants is computed herein below:
i. Income: Rs.40,000/-
ii. Percentage towards future prospects : Rs.12,000/- (30%) iii. Total income : Rs. 40,000 + 12000 = Rs. 52,000/-
iv. Income after deduction of 1/2: Rs. 26,000/-
v. Annual income : Rs. 26,000 x 12 = Rs.3,12,000/-
vi. Multiplier applicable : 13 vii. Loss of dependency: Rs.3,12,000 x 13 = Rs.40,56,000/-
viii. Amount towards non pecuniary damages : Rs.70,000/-
ix. Total compensation :Rs.41,26,000/-
32. No other grounds are urged orally when the matter was heard.
33. 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% from the date of filing of the claim petition till the date of award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.
DEDUCTIONS OF INCOME TAX FROM THE COMPENSATION AWARDED:
34. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court, 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 claimants in their proportion 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 exceed Rs.50,000/- in any financial year, the deduction is not permissible, registry of the 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.
DISBURSEMENT BY TRIBUNAL:
35. The sole claimant being major and not an illiterate person the judgment of A.V. Padma Vs. Venugopal, [2012(1) GLH (SC), 442] will be followed by Tribunal as 11 years have already elapsed since the time of appeal and amount be granted.
36. We request the Registrar General to forward this judgment to the concerned Tribunal (Sri V.K. Srivastava, HJS.) whenever he is posted with a request to be more careful as he has not considered the judgments of Apex Court.
37. This Court is thankful to both the learned Advocates for getting this matter disposed of during this pandemic.
38. Let record of court below be sent back to the Tribunal concerned.
02.09.2021 Prajapati/-