Allahabad High Court
Shambhu Nath Shukla And Another vs Raghubir Singh And Another on 26 November, 2020
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 37
Case :- FIRST APPEAL FROM ORDER No. - 1538 of 2014
Appellant :- Shambhu Nath Shukla And Another
Respondent :- Raghubir Singh And Another
Counsel for Appellant :- Ram Singh,Amit Kumar Sinha
Counsel for Respondent :- Abhinav Krishna,Abhindra Krishna,Arun
Kumar Shukla,R.N. Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned advocate Shri Amit Kumar Sinha with Ram sing for the appellants original claimants and Sri Arun Kumar Shukla for the respondent insurance company. None appears for owner or driver of the vehicle involved in the accident
2. The parties are referred as appellants and respondent insurance company.
3. This appeal challenges the award and decree / order dated 16 09 2003 passed by Motor Accident Claims Tribunal, Allahabad, in M.A.C.P.No.187of 2001 awarding a sum of Rs 1,72,000/- with conditional interest at the rate of 8% if the compensation was not deposited within 2 months of passing of the award. The insurance company has accepted their liability as the award is challenged by the claimants appellants herein.
4. I am pained to narrate that though this petition was preferred in the year 2004 despite several applications for listing the matter were filed only in the year 2014 the delay came to be condoned. The claimants during this period attained the status of senior citizens and the mother of the deceased passed away in the year 2017. The application declaring this fact was filed as an amendment application with application for early hearing. The amendment application nowhere stated that there were no other heirs of the mother of the deceased except that the appellant no1 was her legal representative and heir. The court had ordered to place amendment on record this shows the pathetic condition of a senior citizen. On 19.11.2020 again a application was filed and the matter was order to be listed on 26.11.2020. The accident having caused the death of the son of the appellants is not in dispute. Liability is that of the insurance company is accepted as there is no challenge the same .issue of negligence decided by the tribunal is also not in controversy .The twin controversy is compensation is on lower side and interest could not be ordered to be paid only in default. The twin dispute raised by insurance companies' counsel is that no enhancement can be granted as there is proof of income and due e flux of time mother having passed away father cannot be granted compensation leave apart enhancement Both the ld counsels have placed reliance on the below mentioned decisions of the Apex Court to bring home their rival contentions in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298;and it is submitted that the compensation payable to the appellants be as per the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050.
5. This appeal is taken for hearing as it relates to Senior citizens out of two one has left this world in the year 2016.The appellant no1 who is now a senior citizen lost his young son Tez Narayan who was aged about 20 years, he was a student of Inter Science stream and he was survived by Shambhunath Shukla and Urmila Devi both his parents in their youth in the year of accident that is 2000. Urmila Devi was mother of the deceased, unfortunately, in the month of December, 2016, she passed away. Shambhunath appellant no 1 is now litigating in dual capacity as father of Tej and heir of Urmiladevi who is presumed to have died intestate leaving no other heir except appellant no 1.as no other class 1 heir of Urmiladevi has approached this court since Dec 2016 nor is there declaration that there are any other legal heir or representative of Urmiladevi or deceased Tej save and except appellant no 1 who is the father of Tej and husband of Urmiladevi original appellant no 2 The appellant no 1 therefore gets into the heirship of, of Urmila Devi. The term legal representative has not been defined in the Motor Vehicles Act 1939 or 1988 Act. The 2019 Amendment also does not define the term legal representative. Certain provisions of the Code of Civil Procedure are made applicable to the Motor Vehicles Act 1988 and Tribunals and higher Courts have interpreted the term legal representative so as to give purposive interpretation to the said definition. In view of this position we will have to take recourse to umbrella legislation namely Code of Civil Procedure 1908.Section 2 (11) of the Code of Civil Procedure defines the term ''legal representative' which reads as under:
"Section 2 (11) "legal representative" means any person who in law represents the estate of a deceased person, and includes any person who inter meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party suing or sued;"
6. Meaning of legal representative given u/s 2(11) of Code of Civil Procedure has to be interpreted in view of the term mentioned in section 140 and166 of MV Act 1988 which has used the term legal representative and not Dependent legal representative. The term has been considered to be inclusive and the courts have given it a wider scope of applicability. The person may not be a heir so as to file case under section 140 and 166 of the Act. The term would include legal heir. The person who can represent the estate of the deceased would be included in the term legal representative. The term therefore includes earning wife and parents and all legal heirs.
7. In the case titled GSRTC Vs Ramanbhai Prabhatbhai A 87 SC 1690, the Supreme Court has held that for claiming compensation under either of the Acts the term legal representative cannot be given a narrow meaning as ascribed in Fatal Accidents ACT 1855. Dependency is not basic criteria for relief in accident cases to the claimants if they are legal heir or legal representative of deceased. Meaning of legal representative given u/s 2(11) of Code of Civil Procedure which reads as "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;
8. The term has to be interpreted in view of the term mentioned in section 140 and166 of MV Act 1988 which has used the term legal representative and not Dependent legal representative. The term has been considered to be inclusive and the courts have given it a wider scope of applicability. The person may not be a heir so as to file case under section 140 and 166 of the Act. The term would include legal heir. The person who can represent the estate of the deceased would be included in the term legal representative. The term therefore includes earning wife and parents and all legal heirs. There is a mis reading of the decision of the Apex court in Sarla Verma and Manjuri Bera (Supra) to contend that Father cannot be granted compensation for death of his unmarried child .
9. The observation of the Apex Court in Sarla Verma (supra) is reproduced as under :
15. "Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
10. In Section-166 Of the Act the term used is legal representative. In the present case, the deceased was a person, who was living with the appellants. The M.V.Act is a social piece of legislation and it can be seen that the appellants are parents and can be said to be legal heirs falling in either schedule of Hindu Succession Act. The term legal as defined by dictionary means pertaining to or according to law and the term representative means one who actually succeeds to the property title on the death of its previous holder, which means a person entitled to succeed when the present possessor dies. The term legal representative and legal heir are differently used. The Hindu Law, more particularly Hindu Succession Act, divides the heirs in Class-I and Class-II as far as present appellants are concerned, the appellants can be said to be falling in Class-I. It is an admitted position of fact that mother is a Class-I heir and father is in Class-II both has the following categories of heirs.
Heirs in Class-I
11. Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predecease son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son [son of a pre-deceased daughter of a predeceased daughter; daughter of a pr-deceased daughter of a predeceased daughter; daughter of a pre-deceased son of a predeceased daughter; daughter of a pre-deceased daughter of a predeceased son].
Heirs in Class-II I. Father II. (1) Son's daughter's son; (2) son's daughter's daughter; (3) brother; (4) sister.
III. (1) Daughter's son's son; (2) daughter's son's daughter; (3) daughter's daughters' son; (4) daughter's daughter's daughter.
IV. (1) Brother's son; (2) sister's son; (3) brother's daughter; (4) sister's daughter.
V. Father's father; father's mother.
VI. Father's widow; brother's widow.
VII. Father's brother; father's sister.
VIII. Mother's father; mother's mother.
IX. Mother's brother; mother's sister.
12. Ordinarily, heirs of the deceased persons who represents the estate of the deceased and are his legal representatives a claim can be made by legal heirs and therefore, other relatives of the deceased who are not the heirs of the deceased and not being his legal representatives or dependent on him cannot claim-compensation. In the case on hand now the father is claiming as heir of his deceased wife and as per section 15 of The Hindu Succession Act 1956,which relates to general rules of succession in case of female Hindus the property of intestate female will devolve-firstly on sons and daughters and husband. In light of the discussion made herein above which was necessitated because of the submission of ld counsel for respondent that appellant no1 cannot claim compensation in light of the decisions of Apex Court in Sarla Verma (supra) the undersigned is unable to accept the submission of Shri Shukla ld counsel for respondent that the father would have his own income and, therefore, he would not be entitled to any compensation or enhancement.
13. As narrated here-in-above, the claim was by the father and the mother in normal circumstances in presence of mother as per the judgment of Sarla Verma, the father may not be entitled to share the Supreme Court in the Case of Sarla Verma has not laid down straight preposition that father cannot be granted compensation such a reading of the decision would be against the very spirit of the legislation and would be reading the judgment in piecemeal which is not the intent of the decision may that as it may be, the situation in this case due to passage of time is now different and therefore appellant no 1 becomes a legal representative rather class one heir of Urmila has envisaged under Section 166 of the Motor Vehicles Act.1988. IN This backdrop the calculation and compensation awarded be assessed.
14. The accident occurred in the year 2000.The tribunal considered the income of the deceased who was 12th standard student at Rs.15,000/- per year and granted multiplier of 16.deducted one third for personal expenses of the minor and Rs.12000towards non pecuniary damages The tribunal placed reliance on the schedule appended to the Act under section 163 A of the Act and directed the insurance company to deposit the compensation within2 months failing which the company would be liable to deposit the same with 8% interest.
15. Learned counsel for the appellant submits that even in the year 2000 the income of the deceased should be considered to be Rs.3000/per month- to which 40% be added towards future loss of income as the deceased was below the age of 40 and was student and the deduction of one third deducted is just and proper however later submitted that 50 % of the average amount has to be deducted. And Rs 70,000/- should be added under the head of non peculiar damages. It is further submitted that multiplier be granted as per Sarla Verma's decision and future prospect has not been granted which may be granted as per National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050, and has further requested to grant 18% interest. It is further submitted that the grant of condition in awarding interest is also bad in law.
16. Sri Shukla ld. Advocate for the Insurance company has vehemently objected to enhance the compensation it is further submitted that the income of deceased has been assessed on higher side by the tribunal and has only deducted one third towards personal expenses it is submitted that he was a student of Inter his income cannot be considered to be 3000/- of course he could not point out that why future income should be added as per Pranav Sethi. He has further submitted that the deduction should not have been 1/3 but 50%as the deceased was a bachelor which have accepted by Shri Sinha, counsel for the appellant.
17. The calculation of compensation would have to be revisited. The income of Rs.15,000/-per annum is enhanced to Rs.24,000/- per annum which is added by 40% which would mean Rs2000plus40% which would come to Rs.2800/per month deduction of 1/2 for personal expenses the same amount would be 1400 multiplied by 12. The multiplier of 16 granted by the tribunal will also have to be revisited in view of the decision in Sarla Verma and it would be 18. As far as the amount under non pecuniary damages is concerned, the same will have to be fixed at additional amount Rs.50,000/- for the filial consortium which now father would be entitled as amount of RS 12000 awarded by the tribunal already deposited would have been utilized by the mother. The Compensation is computed herein below:
i. Income Rs.2000/per month ii. Percentage towards future prospects : 40% namely Rs 800/per month iii. Total income : Rs. 2000Plus Rs 8000 =Rs2800 iv. Income after deduction of 50%: Rs. 1400/ v. Annual income : Rs.1400 x 12 = Rs 16800/ vi. Multiplier applicable : 18 vii. Loss of dependency: Rs x 18= Rs.302,400/ viii. Amount under non pecuniary heads : additional Rs50000/ ix. Total compensation: Rs 3,52,400/- Plus Rs12,000 already awarded.
18. As far as issue of rate of interest is concerned, the interest at the rate of 8% is disturbed in light of the following facts The matter remained pending for default for 10 yrs the repo rate has come down .the rate of interest would be7.5 % from date of filing of claim petition till the amount was deposited and 4% thereafter till the amount is deposited by the respondents as ordered by the tribunal.
19. No other grounds are urged orally when the matter was heard.
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.
21. The amount be deposited by the respondent-Insurance Company within a period of 12 weeks from today with interest at the rate of7.5%from the date of filing of the claim petition till the judgment of the Tribunal and 4% thereafter till the amount is deposited.
22. The amount already deposited be deducted from the amount to be deposited.
23. I agree with the submission made by Shri Shukla,that the additional amount be permitted to be deposited on or before 28th of February, 2021.
24. 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 nor rustic villagers.
25. 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.
26. 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.
27. No amount shall be kept in fix deposit as Shambhu Nath Shukla, appellant has become a senior citizen, no TDS shall be deducted as per direction of this Court by the insurance company.
28. This court is thankful to both the counsels for getting the appeal disposed of as the matter is now pending since more than 20 years.
Order Date :- 26.11.2020 A.N. Mishra