Allahabad High Court
Smt.Jagdish Kumari And Ors. vs Om Prakash And Ors. on 8 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1973, (2019) 4 TAC 7, (2019) 9 ADJ 504 (ALL), (2020) 1 ALL WC 240
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 6/Reserved Case :- FIRST APPEAL FROM ORDER No. - 560 of 2012 Appellant :- Smt.Jagdish Kumari And Ors. Respondent :- Om Prakash And Ors. Counsel for Appellant :- Satendra Nath Rai Counsel for Respondent :- Katyayan Mishra,Rajeev Kumar Saxena,Saurabh Chandra,Virant Singh Hon'ble Rajnish Kumar,J.
1. Heard, Shri Satendra Nath Rai, learned counsel for the appellants and Shri Saurabh Chandra, learned counsel for the respondent no.4.
2. The instant appeal has been filed against the judgment and award dated 20.03.2012 passed in Motor Accident Claim Petition No.15 of 2010 (Smt. Jagdish Kumari and Others Vs. Om Prakash and Others). The learned Tribunal has allowed Rs.1,00,750/- alongwith interest @ 7% per annum simple interest. It has further provided that the claimant no.1- Smt. Jagdish Kumari W/o the deceased is entitled for 40% and claimants No.2 and 3; sons of the deceased are entitled for 30% each.
3. The facts in brief for adjudication of the present appeal are that the deceased Asha Ram alongwith his son Rajesh Kumar, the appellant no.2 had gone to Hargaon Sugar Mill on 04.12.2009 with his tractor trolley No.-U.P. 31 K-8218 loading cane on it. He parked the trolley loaded with cane in the lane and was taking rest under the trolley. At about 10:00 AM in the night, the tractor No.-U.P. 34 F-2246 in which the cane was loaded wrongly and the cane was out of trolley, smashed the trolley of the deceased Asha Ram from the backside while it was driven rashly and negligently by its driver. In consequence thereof the wheel of the trolley climbed on the deceased in which he suffered serious injuries. The applicant / appellant no.2 took his father Asha Ram to Lakhimpur District Hospital and during treatment he died. The postmortem of the deceased Asha Ram was conducted on 05.12.2009. The trolley was of the respondent no.4 and his cane was loaded in his trolley. With the aforesaid allegations the appellant filed a claim petition before the Motor Accident Claims Tribunal / District Judge, Lakhimpur Kheri under Sections 140 and 166 of the Motor Vehicles Act, 1988 which was registered as Motor Accident Claim Petition No.15 of 2010. The claimant had claimed Rs.50,000/- under Section 140 and Rs.14,24,000/- as compensation alongwith interest @ 12% and the litigation expenses.
4. The claim petition was contested by the respondent by filing written statement. During pendency of the claim petition an application for amendment was moved which was allowed on 28.07.2011 by means of which the claim petition was converted into claim petition under Section 163-A of the Motor Vehicles Act, 1988 and the income of the deceased was amended to Rs.3,300/- in place of Rs.12,000/-. After exchange of pleadings three issues were framed. Thereafter, after filing the documents Rajesh Kumar son of deceased was examined as PW-1 and Vivek Kumar as PW-2. The respondent no.1- Om Prakash was examined as DW-2 and respondent no.4- Angrez Singh was examined as DW-1. Thereafter, after hearing the parties and considering the evidence available on record the learned Tribunal has partly allowed the claim petition and awarded an amount of Rs.1,00,750/- as compensation alongwith interest @ 7% per annum simple interest with the apportionment as stated above. Hence the present appeal has been filed challenging the same and for enhancement.
5. Learned counsel for the appellant submitted that the age of the deceased was 50 years at the time of accident but the learned Tribunal has erred in treating his age 55 years. However even if it is treated to be 55 years, the multiplier of 11 should have been applied in place of 8 as per judgment of Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Others Vs. Delhi Transport Corporation & Another as upheld by the Constitution Bench judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Versus Pranay Shethi and Others.
6. Learned counsel for the appellant further submitted that the learned Tribunal has wrongly and illegally deducted 50% on the ground of contributory negligence while there was no contributory negligence and in any case the contributory negligence of the deceased can not be seen in the application under Section 163-A of the Motor Vehicles Act, 1988 (here-in-after referred as Act of 1988).
7. Lastly he submitted that no future prospects have been allowed by the learned Tribunal and under the conventional heads i.e loss of estate, loss of consortium, funeral expenses lesser amount has been awarded.
8. Learned counsel for the appellant has relied on National Insurance Company Limited Versus Pranay Shethi and Others; (2017) 16 SCC 680, Sarla Verma (Smt.) & Others Vs. Delhi Transport Corporation & Another; (2009) 6 SCC 121, United India Insurance Company Limited Vs. Sunil Kumar; 2017 SCC Online SC 1443 and Shivaji and Another Vs. Divisional Manager, United India Insurance Company Limited and Others; AIR 2018 SC 3705.
9. Per contra, learned counsel for the respondents submitted that the respondent was lying under the trolley of his tractor while it was standing in the lane of sugar factory. The tractor of the respondent was in other lane therefore the learned Tribunal has rightly recorded that there was contributory negligence on the part of the deceased and rightly deducted 50% of the compensation. However, he could not dispute the other submissions of learned counsel for the appellant.
10. Learned counsel for the respondents has relied on National Insurance Company Limited Vs. Sinitha and Others; AIR 2012 SC 797.
11. I have considered the submissions of learned counsel for the parties and perused the record of First Appeal From Order as well as the lower court record.
12. The deceased Asha Ram alongwith his son Rajesh Kumar; the appellant no.2 had gone to Hargaon Sugar Mill on 04.12.2009 with his tractor trolley No.-U.P. 31 K-8218 loading cane on it. He parked the trolley loaded with cane in the lane and was taking rest under the trolley, when the driver of the tractor No.-U.P. 34 F-2246, driving rashly and negligently, smashed the trolley of the deceased Asha Ram from backside. In consequence thereof the wheel of the trolley climbed on the deceased in which he suffered serious injuries and during treatment he succumbed to his injuries and died. Hence the claim petition was filed before the Motor Accident Claims Tribunal / District Judge, Lakhimpur Kheri. The learned Tribunal has partly allowed the claim petition deducting 50% of the compensation assessed on the ground of the contributory negligence on the part of the deceased. Hence the present appeal has been filed challenging the judgment and award passed by the learned Claims Tribunal and for enhancement.
13. Leaned Tribunal has recorded a finding that on account of rash and negligent driving of the driver of the tractor No.-U.P. 34 F-2246 loading cane horizontally in the premises of Hargaon Sugar Mill at about 10:00 PM on 04.12.2009 it smashed the tractor trolley No.-U.P. 31 K-8218 from the backside. Consequently, the wheel of the trolley climbed on the deceased Asha Ram who was taking rest under his tractor on account of which he died. However since the deceased Asha Ram was taking rest under his tractor therefore the learned Tribunal came to the conclusion that there was negligence on the part of the deceased also as it was not in the knowledge of the respondent no.4- Angrej Singh.
14. After amendment, the claim petition was converted under Section 163-A of the Act of 1988 which provides special provisions for payment of compensation. Sub-section 2 of Section 163-A is relevant for the purpose of the present case, which is reproduced as under:-
"(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person."
15. In view of sub-section (2), in a claim petition under Section 163-A, the claimant is not required to prove that the accident was an outcome of wrongful act or neglect or default of owner of the vehicle or vehicle concerned or of any other person. Therefore for consideration of the claim under this Section the wrongful act or neglect or default, if any, of the deceased could not have been seen.
16. The learned Tribunal after considering the pleadings, evidence and material available on record has come to the conclusion that the accident was an outcome of the rash and negligent driving of the offending tractor No.-U.P. 31 K-8218 which had smashed the tractor of the deceased from the backside and in the offending tractor the cane was loaded horizontally on account of which the accident had occurred. Therefore no contributory negligence can be attributed to the deceased whose tractor was standing in the other lane, merely because he was taking rest under it. Therefore this court is of the view that learned Tribunal has erred in holding 50% contributory negligence of the deceased and deducting 50% on this ground.
17. A three judge bench of the Hon'ble Apex Court, in the case of United India Insurance Company Limited Vs. Sunil Kumar and Another (Supra), disagreeing with the reasoning and the conclusion of a two judge bench in the case of National Insurance Company Limited Vs. Sinitha and Others (Supra), relied by learned counsel for the respondent, on a reference by a coordinate bench framed the following question for resolution:-
"Whether in a claim proceeding under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act') it is open for the Insurer to raise the defence/plea of negligence?"
The Hon'ble Apex Court, after considering the issue, answered that in a proceeding under Section 163-A of the act it is not open for the Insurer to raise any defence of negligence on the part of the victim. The relevant paragraphs 8 and 9 are reproduced as under:-
"8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.
9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim."
18. The aforesaid judgment has been relied and reiterated by a three judge bench of the Hon'ble Apex Court in the case of Shiva Ji & Another Vs. Divisional Manager, United India Insurance Company Limited and Others; AIR (2018) SC 3705. Therefore, the judgment relied by the learned counsel for the respondent is of no assistance to him.
19. In view of above, the judgment relied by the learned counsel for the respondent is not of any assistance to him as the same has already been considered and not accepted by larger bench of the Hon'ble Apex Court. Therefore the judgment of the learned Tribunal to that extent it has deducted 50% of the compensation assessed on the ground of contributory negligence of the deceased is not sustainable and liable to be set-aside.
20. So far as the other claims are concerned the age of the deceased was 50 years at the time of accident and the learned Tribunal has treated his age 55 years.
21. The second schedule of the Act 1988 provides the multiplier of 11 for the age above 50 years but not exceeding 55 years therefore even if the age of the deceased is treated to be 55 years the multiplier of 11 would apply in place of 8. The Hon'ble Apex Court has also approved the multiplier of 11 for the age group between 51-55 years in paragraph 42 in the case of Sarla Verma (Smt.) & Others Vs. Delhi Transport Corporation & Another (Supra) which has been approved by a Constitution Bench of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Shethi & Others (Supra). The relevant paragraph 42 of the Sarla Verma (Supra) is reproduced as under:-
"42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
22. From perusal of the impugned judgment and award it is apparent that nothing has been awarded towards the future prospects and lesser amount has been awarded towards the conventional heads namely loss of estate, loss of consortium and funeral expenses i.e Rs.2500/-, Rs.5000/- and Rs.2000/- respectively.
23. The Hon'ble Apex Court in the Constitution Bench judgment of National Insurance Company Limited Vs. Pranay Sethi and Others (Supra) has held in paragraph 59.4 that where a deceased was between the age of 50 to 60 years an addition of 10% should be regarded as the necessary method of computation. Therefore, the appellants are entitled for addition of 10% towards the future prospects.
24. The Hon'ble Apex Court in the aforesaid Constitution Bench Judgment has approved Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively for the conventional heads i.e. loss of estate, loss of consortium and funeral expenses therefore the amounts awarded by the Tribunal on these counts are also required to be enhanced accordingly. The paragraph 59 of the Constitution Bench Judgment in the case of National Insurance Company Limited Vs. Pranay Shethi & Others (Supra) is reproduced as under:-
"59. 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 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."
25. In view of above, this court is of the considered opinion that the impugned judgment and award passed by the learned Tribunal is liable to be set-aside to the extent of recording of finding of contributory negligence and deduction of 50% amount of compensation on the ground of contributory negligence and the same is liable to be modified and the claimants-appellants are held entitled to the compensation which is calculated as follows:-
1.
Income Rs.36,000/-
2. Deduction @ 1/3 Rs.12,000/-
3. Multiplier; (11) 24,000x11 Rs.2,64,000/-
4. Future Prospects (10%) Rs.26,400/-
5. Loss of Estate Rs.15,000/-
6. Loss of Consortium Rs.40,000/-
7. Funeral expenses Rs.15,000/-
Total (3+4+5+6+7) Rs.3,60,400/-
26. The learned Tribunal has allowed the simple interest @ 7% per annum which this court finds is on the lesser side and the adequate interest would be 9% per annum which has been allowed by a three judge bench of Hon'ble Supreme Court also in the case of Sube Singh & Another Vs. Shyam Singh (Dead) & Others; [2018 (1) CRC 598]. Thus the rate of interest is modified to 9% per annum in place of 7% per annum.
27. The appeal is partly allowed. The judgment and award dated 20.03.2012 passed in Motor Accident Claim Petition No.15 of 2010 (Smt. Jagdish Kumari & Others Vs. Om Prakash & Others) passed by Motor Accident Claims Tribunal / Additional District Judge / Special Judge / (Essential Commodities Act), Lakhimpur Kheri is modified to the extent indicated above in paragraph 27 and the appellants/claimants are held entitled for an amount of Rs.3,60,400/- as compensation alongwith interest @ 9% per annum from the date of filing of claim petition which shall be paid by the respondent- Insurance Company within a period of two months from the date of this order, after adjusting the amount paid, if any.
28. No order as to costs.
29. The lower court record shall be remitted to the Claims Tribunal forthwith.
.................................... (Rajnish Kumar,J.)
Order Date :- 08.08.2019
Haseen U.