Allahabad High Court
The New India Assurance Co. Ltd vs Vipin Kumar And 8 Others on 19 February, 2020
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. - 125 of 2019 Appellant :- The New India Assurance Co. Ltd Respondent :- Vipin Kumar And 8 Others Counsel for Appellant :- Avanish Mishra Counsel for Respondent :- Satya Deo Ojha Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This appeal, at the behest of New India Assurance Co. Ltd., challenges the judgment and award dated 8.10.2018 passed by Motor Accident Claims Tribunal/Additional District & Sessions Judge, Muzaffarnagar (hereinafter referred to as 'Tribunal') in M.A.C.P. No.116 of 2017 awarding a sum of Rs.4,48,000/- with interest at the rate of 7% as compensation.
2. According to the appellant, the Tribunal has misread the evidence led before it and has erroneously considered the income of the deceased who was 63 years of age to be Rs.4,500/- per month. Unfortunately, the Tribunal did not deduct any amount for personal expenses of the deceased on the ground that the deceased was not dependent on any of his sons. It is submitted by learned counsel for the appellant that if it is done, the judgment of the Apex Court in Smt. Manjuri Bera Vs. Oriental Insurance Company, Limited, AIR 2007 SC 1474 would be applicable. He does not dispute the grant of multiplier but disputes the amount of Rs.70,000/- granted for non-pecuniary damages.
3. As against this Sri S.D. Ojha, learned counsel for the respondent-claimants has submitted that the Tribunal has erred in holding the age of the deceased to be 63 years, the Tribunal ought to have taken recourse to the post-mortem report which showed the age of the deceased to be 58 years. He has further submitted that the income has been rightly considered to be Rs.4500/- per month my the Tribunal.
4. It is further submitted by Sri Ojha, that as the Court is recalculating the compensation, in view of the decision of this Court F.A.F.O. No.2389 of 2016 (National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016 and under Order 43 Rule 1 (r) of C.P.C., he would like to press the issue of interest which should be at the rate of 9% and not 7% as granted by the Tribunal in view of the decision of this Court in National Insurance Company Limited Vs. Lavkush and another, 2018 (1) T.A.C. 431.
5. Having heard the learned counsels for the parties and perused the judgment and order impugned. Recently the Apex Court for a labourer also has considered that the minimum wage would be Rs.6,000/-, hence, submission of learned counsel for the appellant that the income of Rs.4500/- granted by the Tribunal is bad, cannot be accepted. However, his submission that 1/3rd should have been at least deducted towards the personal expenses of the deceased if not the entire amount. I am unable to accept the submission of learned counsel for the appellant that Rs.70,000/- should not be paid for filial consortium as the said is in consonance with the judgment in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050
6. Hence, the amount is recalculated as below:
Income: Rs.4,500/-
Annual income : Rs. 4500 x 12 = Rs. 54,000/- Income after deduction of 1/3: Rs. 36000/- Multiplier applicable : 7 Loss of dependency: Rs.36000 x 7 = Rs.2,52,000/- Amount under non pecuniary heads : Rs.70,000/-
7. Hence, Rs.2,52,000 + Rs.70,000/- = 3,22,000/- would be the compensation awardable to the heirs of the deceased to be equally distributed as per the judgment of the Tribunal. The amount will carry interest at the rate of 9% in view of the decision of the Apex Court in Civil Appeal No.242/243 of 2020 (National Insurance Company Ltd. vs Birender and others) decided on 13 January, 2020 which is the latest in point of time.
8. In view of the above, the appeal is partly allowed. The amount be recalculated with fresh rate of interest and if the same is less than the amount already deposited by the Insurance Company, the Insurance Company be paid the difference and the rest of the amount be disbursed to the claimants as per the award.
9. This Court is thankful to both the counsels for getting this matter disposed of.
10. It goes without saying that the presence of the owner is not necessary as primarily the dispute is of compensation awarded.
Order Date :- 19.2.2020 DKS