Allahabad High Court
United India Insurance Co. Ltd. vs Smt. Kusum And 8 Others on 22 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 684
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- FIRST APPEAL FROM ORDER No. - 3423 of 2016 Appellant :- United India Insurance Co. Ltd. Respondent :- Smt. Kusum And 8 Others Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- Rajendra Prasad,Rajendra Prasad Hon'ble Vivek Agarwal,J.
Heard Sri Rahul Sahai, learned counsel for the appellant namely United India Insurance Co. Ltd and Sri Rajendra Prasad, learned counsel for the respondent.
This appeal under section 173 of the Motor Vehicle Act has been filed by the United India Insurance Co. Ltd being aggrieved by award dated 3.9.2016 passed by the Presiding Officer, MACT/District Judge, Jhansi (in short Claims Tribunal) in MACP No. 35 of 2015 (Smt. Kusum and others Vs. Mukesh Kumar Yadav and others).
The appeal is filed on the ground that Claims Tribunal has erred in incorrectly accepting the income of the deceased to be Rs. 9000/- per month and also without there being any cogent reason accepted that the deceased was a truck driver, where as onus was on the claimant to have discharged his burden. It is also submitted that Claim Tribunal has awarded a sum of Rs. 50,000/- on account of loss of estate and Rs. 1 lakh for loss of consortium and another Rs. 25,000/- on account of funeral expenses. It has also awarded a sum of Rs. 1 lakh on account of loss of love and affection besides awarding compensation of Rs. 25,000/- as cost of the litigation. Therefore, a sum of Rs. 3 lakhs has been awarded under non-pecuniary head and cost, which is according to appellant, contrary to the law laid down by the Supreme Court in case of National Insurance Company Limited Vs. Pranay Sethi and others as reported in (2017) 16 Supreme Court Cases 680.
It is also submitted that Claims Tribunal has considered future prospects and has added 30% as amount of future prospects, whereas, admittedly, Claims Tribunal has accepted the age of the deceased to be 47-years and, therefore, as per law laid down in case of Pranay Sethi (Supra), since the deceased was not in a permanent employment, therefore, future prospects has to be computed at the rate of 25%.
Sri Rajendra Prasad, learned counsel for the respondent supports the award and submits that this award does not call for any interference by this Court and be maintained as it is. He submits that as far as quantum of income of the deceased is concerned, on the date of accident i.e. 16.1.2015 minimum wages of the skilled drivers were Rs. 8300/- plus daily allowances though this fact has come on record in the evidence of PW-2 & PW-3 that deceased was earning a sum of Rs. 9000/- per month. It has also been deposed by PW-1 that her husband was working on the truck of Brijesh Sahu then the onus was on the respondent to have produce Brijesh Sahu in evidence to counter the claim of the counsel. However, there is no effective cross-examination on the aspect of income. In view of such facts, finding of income does not call for any interference. However, he submits in regard to percentage of future prospects, and grant of non-pecuniary compensation, it merits consideration as it is de horse the law laid down by the Supreme Court.
Therefore, taking income of the deceased to be 9000/- per month, if 25% is added towards future prospects then total income will come to Rs. 11,250/- per month. The Claims Tribunal has considered this fact that there are four dependents on the deceased. Therefore, as per law laid down in case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another as reported in (2009) 6 SCC 121. 1/4th deduction is to be made and therefore, net disposal income in the hands of the family will come to Rs. 8,437.50/- per month or Rs. 1,01,250/ per annum-. Admittedly, the deceased was aged 47-years, therefore, multiplier of 13 will be applicable in the light of law laid down in case of Sarla Verma (Supra). Therefore, when multiplier of 13 is applied then the total quantum of pecuniary damages will come to Rs. 13,16,250/- (Thirteen lakhs sixteen thousand two hundred and fifty only). Over and above, this claimants are entitled to a sum of Rs. 70,000/- under the head of non pecuniary damages taken total award to the tune of Rs. 13,86,250/- in place of Rs. 16,68,900/- as awarded by the Claims Tribunal. Therefore, appeal is partly allowed. The compensation awarded by the Claims Tribunal is reduced from Rs.16,68,900/- to Rs. 13,86,250/-. It is also directed that this amount shall carry interest at the rate of 7% from the date of filing of the claim petition. The rate of penal interest and cost awarded by the Claims Tribunal is also set aside. The appeal is accordingly disposed of. Amount of award, if any, deposited shall be adjusted at the stage of final calculation as has been made in this appeal. Appellant is entitled to claim refund of excess amount, if any, from the Claims Tribunal. Ratio of apportionment among the claimants will remain same as has been decided by the Claims Tribunal.
With the above observations, the appeal is disposed of.
Order Date :- 22.1.2020 S.K.S.