Allahabad High Court
Smt. Upasana And 4 Others vs National Insurance Company Ltd. And 2 ... on 11 February, 2022
Author: Vivek Varma
Bench: Kaushal Jayendra Thaker, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 1070 of 2017 Appellant :- Smt. Upasana And 4 Others Respondent :- National Insurance Company Ltd. And 2 Others Counsel for Appellant :- Nigamendra Shukla Counsel for Respondent :- Om Prakash Mishra Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Vivek Varma,J.
1. Heard Shri Nigamendra Shukla, learned counsel for the appellants; Shri Om Prakash Mishra, learned counsel for the respondents; and perused the record.
2. This appeal, at the behest of the claimants, challenges the judgment dated 4.10.2016 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.15, Ghaziabad (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.313 of 2012 awarding a sum of Rs.4,52,000/- with interest at the rate of 6% as compensation.
3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondent concerned has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded.
4. It is submitted by learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income of the deceased 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 amount under non-pecuniary heads granted and the interest awarded by the Tribunal are on the lower side and require enhancement and learned counsel submitted that deceased was Senior Technician in Moser Baer India Ltd, Greater Noida by profession and was getting Rs.14,512/- per month. It is also submitted that as the deceased was survived by his widow, two minor children, mother and father and hence the deduction towards personal expenses of the deceased as 1/4 is not in dispute. The multiplier has to be as per age of deceased should have been granted 16 is also not in dispute.
5. Learned counsel for the respondents, has vehemently objected the contentions raised by the learned counsel for the appellants and has submitted that the compensation awarded by the Tribunal is just and proper and does not call for any enhancement.
6. Having heard learned counsel for the parties and considered the factual data, this Court found that the accident occurred on 16.5.2013 causing death of Rajeev Kumar Sharma who was 31 years of age and left behind him, widow, two minor children, mother and father. The Tribunal has assessed the income of the deceased to be Rs.3000/- per month. The deceased was Senior Technician by profession. The tribunal has committed grave error in not considering that the appellants had proved the income of the deceased by proper evidence. The witness was also examined so as to bring whom the contention that the deceased was a Senior Technician. The documentary evidence showing the income starts from Ex.40, PW-2 Raj Kumar Singh who is the Manager, Baer India Ltd. has been examined and he has also conveyed the income. The Tribunal has hyper technical stand in relying on the judgment of Saead Bashir Ahmad v. Md. Zamil 2009 (1) TAC 794 and thereafter has gone to decide the matter on the basis of the decision of the Apex Court in Laxmi Devi v. Md. Tabyar 2006 (2) TAC 394 and decide that he was earning Rs.3000/- p.m.. This is again fallacious as the documentary evidence on record just because the original was not brought. The evidence of the witnesses has not been accepted which is also against the Judgment in the case of the Apex Court in Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186, and, therefore, we are obliged to hold that the deceased died due to the accidental injuries.
7. The judgment of the Apex Court in Anita Sharma v. New India Assurance Co. Ltd. (2021), 1 SCC 171 would also apply to the facts of this case.
8. As far as beneficial difference of limitation is concerned, the strict rules of civil procedure and evidence act are no required to adhered to.
9. In our case, prima facie it was proved that his income was Rs.14,512/- out of certain amounts were deducted and he was getting Rs.13,020/-. In view of the judgment of Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830 except income Tax no amount could have been deducted by the tribunal in the year of question, i.e., 2012, his income was below taxable income and hence we will have to consider his income Rs.14,500/- per month. The tribunal cannot take a stand that as the officer who was examined had not brought the original records, his evidence is totally unbelievable. The tribunal has erred itself in not considering the income of the deceased and has deducted amount which it could not deduct holding that they were personal benefits to the deceased. We cannot concur with the tribunal as far as holding that the deceased was earning Rs.3000/- per month. The income has to be considered to be Rs.14,500/- per month, would be the income of the deceased. The deceased was below the age of 40 years as Senior Technician, 50% of the income will have to be added as future 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. The multiplier of 16 granted is just and proper as per the judgment in Pranay Sethi (supra) where awarded sum of Rs.70,000+10% increase, we round up the same figure Rs.1,00,000/- instead of Rs.91,000/-.
10. In this backdrop were evaluate the income in view of the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and, the recalculation of compensation would be as follows:
i. Income Rs.14,500/- p.m. ii. Percentage towards future prospects : 50% namely Rs.7250/-
iii. Total income : Rs. 14,500 + 7,250 = Rs.21,750/-
iv. Income after deduction of 1/4 : Rs.16,313/-
v. Annual income : Rs.16,313 x 12 = Rs.1,95,750/-
vi. Multiplier applicable : 16 (as the deceased was in the age bracket of 31-35 years) vii. Loss of dependency: Rs.1,95,750 x 16 = Rs.31,32,000/-
viii. Amount under non pecuniary heads (Rs.70,000+30,000) = 1,00,000/-
ix. Total compensation : Rs.32,32,000/-.
11. 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 rustic villagers.
12. 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.
13. 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."
14. 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.
15. We are thankful to learned counsels for the parties for ably assisted the Court.
16. Record be sent back to court below forthwith, if any.
17. We are thankful to learned counsels for the parties for ably assisted the Court.
Order Date :- 11.2.2022 A.N. Mishra