Allahabad High Court
Suraj Mukhi And 2 Others vs Sunil Garg And Another on 21 March, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD [A.F.R.] Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 4118 of 2018 Appellant :- Suraj Mukhi And 2 Others Respondent :- Sunil Garg And Another Counsel for Appellant :- Ram Singh,Amit Kumar Singh Counsel for Respondent :- Radhey Shyam,Vinay Kumar Pandey And Case :- FIRST APPEAL FROM ORDER No. - 4117 of 2018 Appellant :- Suraj Mukhi And 2 Ors. Respondent :- Sunil Garg And Another Counsel for Appellant :- Ram Singh,Amit Kumar Singh Counsel for Respondent :- Radhey Shyam,Vinay Kumar Pandey Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. Heard Sri Ram Singh, learned counsel for the appellants and Sri Radhey Shyam, learned counsel for the respondent-Insurance Company and Sri Vinay Kumar Pandey, learned counsel for the owner of the offending vehicle.
2. Both these appeals arise out of the same accident causing death of the Sunil and Manoj Kumar. First Appeal From Order No. 4118 of 2018 (arising out of MACP No. 770 of 2014) has been preferred by the legal heirs of the deceased-Sunil and First Appeal From Order No. 4117 of 2018 (arising out of MACP No. 771 of 2014) has been preferred by the legal heirs of deceased-Manoj Kumar. Both these appeals challenge the judgment and award dated 24.9.2015 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 6, Aligarh.
3. As the issues which are to be decided can be decided from the perusal of the judgment impugned and certain documents appended with memo of appeal and as the matter is very old, we dispense with record and decide the same by consent of the parties.
4. At the outset, once again, we direct and request the Registrar General to issue circular to the Motor Accident Claims Tribunals to decide the matters arising out of same accident after consolidating the same.
5. Averments made in the memo of appeal go to show that Sunil, Manoj and wife of Sunil namely Neetu got injured in the vehicular accident. Sunil and Manoj died on the spot. The accident occurred in front of Sonai Station Road on 17.9.2014 at 8.00 p.m. It is unrebutted averments that the Wagon R which was owned by respondent came and rammed into stationery Indica Car being driven by Manoj Kumar. Respondent No.1, Sunil Garg, is the driver and owner of the offending vehicle namely Wagon R. He has not appeared before the Tribunal nor has he appeared before this Court. The Insurance Company came and filed its reply of negation. The accident though having occurred in the year after the 1988 Act, the reply was as if it is under the old Act namely Act of 1939. They denied the fact that vehicle was insured with them. They have denied the fact that premium was paid. The Insurance Company, in its reply, has stated that the vehicle was being driven in breach of policy.
6. All other issues except issue of holding the deceased negligent and compensation granted for the death of Sunil and Manoj Kumar are not under challenge and, therefore, further detailed facts are not required to be elaborately discussed.
7. Sri Radhey Shyam, learned counsel for the respondent has pointed out that Manoj Kumar, the elder brother, of Sunil was driving the vehicle and qua him, Tribunal has considered 10% negligence.
8. Sri Ram Singh, learned counsel for the appellants tried to contend that the vehicle which Manoj Kumar was driving was stationery and he is not at all negligent. It is further submitted by Sri Ram Singh, learned Advocate that the quantum of compensation awarded in both the matters are on the lower side and require to be recalculated in view of the latest decisions of the Apex Court.
9. Having heard the learned counsel for the parties, let us consider the negligence from the perspective of the law laid down.
10. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply.
11. The principle of contributory negligence has been discussed time and again. A person who either contributes or is co author of the accident would be liable for his contribution to the accident having taken place and that amount will be deducted from the compensation payable to him if he is injured and to legal representatives if he dies in the accident.
12. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :
"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.
19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).
22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."
emphasis added
13. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
emphasis added
14. The latest decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care.
15. A similar view has been taken by the Apex Court in Archit Saini and Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143 wherein the finding of the Tribunal was upheld by adverting to the same more particularly the Apex Court has upheld the finding in paragraph 21 to 27 in its judgment. The paragraph 5 of the said Apex Court's judgment is reproduced hereinbelow:
"5.The respondents had opposed the claim petition and denied their liability but did not lead any evidence on the relevant issue to dispel the relevant fact. The Tribunal after analysing the evidence, including the site map (Ext. P-45) produced on record along with charge-sheet filed against the driver of the Gas Tanker and the arguments of the respondents, answered Issue 1 against the respondents in the following words:
"21. Our own Hon'ble High Court in a case captioned Lakhu Singh v. Uday Singh [Lakhu Singh v. Uday Singh, 2007 SCC OnLine P&H 865 : PLR (2007) 4 P&H 507] held that while considering a claim petition, the Tribunal is required to hold an enquiry and act not as criminal court so as to find whether the claimants have established the occurrence beyond shadow of any reasonable doubt. In the enquiry, if there is prima facie evidence of the occurrence there is no reason to disbelieve such evidence. The statements coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arrive at a conclusion that the accident has taken place. Likewise, in Kusum Lata v. Satbir [Kusum Lata v. Satbir, (2011) 3 SCC 646 : (2011) 2 SCC (Civ) 37 : (2011) 2 SCC (Cri) 18 : (2011) 2 RCR (Civil) 379] the Hon'ble Apex Court has held that in a case relating to motor accident claims, the claimants are not required to rove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.
22. After considering the submissions made by both the parties, I find that PW 7 Sohan Lal eyewitness to the occurrence has specifically stated in his affidavit Ext. PW 7/A tendered in his evidence that on 15-12-2011 at about 20.30 p.m. he along with PHG Ajit Singh was present near Sanjha Chulha Dhaba on the National Highway leading to Jammu. All the traffic of road was diverted on the eastern side of the road on account of closure of road on western side due to construction work. In the meantime a Maruti car bearing No. HR 02 K 0448 came from Jammu side and struck against the back of Gas Tanker as the driver of the car could not spot the parked tanker due to the flashlights of the oncoming traffic from front side. Then they rushed towards the spot of accident and noticed that the said tanker was standing parked in the middle of the road without any indicators or parking lights.
23. The statement of this witness clearly establishes that this was the sole negligence on the part of the driver of the Gas Tanker especially when the accident was caused on 15-12-2011 that too at about 10.30 p.m. which is generally time of pitch darkness. In this way, the driver of the car cannot be held in any way negligent in this accident. Moreover, as per Rule 15 of the Road Regulations, 1989 no vehicle is to be parked on busy road.
24. The arguments of the learned counsel for the respondent that PW 7 Sohan Lal has stated in his cross-examination that there was no fog at that time and there were lights on the Dhaba and the truck was visible to him due to light of Dhaba and he was standing at the distance of 70 ft from the truck being road between him and the truck and he noticed at the car when he heard voice/sound caused by the accident so Respondent 1 is not at all negligent in this accident but these submissions will not make the car driver to be in any way negligent and cannot give clean chit to the driver of the Gas Tanker because there is a difference between the visibility of a standing vehicle from a place where the person is standing and by a person who is coming driving the vehicle because due to flashlights of vehicles coming from front side the vehicle coming from opposite side cannot generally spot the standing vehicle in the road that too in night-time when there is neither any indicator or parking lights nor blinking lights nor any other indication given on the back of the stationed vehicle, therefore, the driver of the car cannot be held to be in any way negligent rather it is the sole negligence on the part of the driver of the offending Gas Tanker as held inGinni Devi case [Ginni Devi v. Union of India, 2007 SCC OnLine P&H 126 : 2008 ACJ 1572] , Mohan Lal case [New India Assurance Co. Ltd. v. Mohan Lal, 2006 SCC OnLine All 459 : (2007) 1 ACC 785 (All)] . It is not the case of the respondent that the parking lights of the standing truck were on or there were any other indication on the backside of the vehicle standing on the road to enable the coming vehicle to see the standing truck. The other arguments of the learned counsel for Respondent 3 that the road was sufficient wide road and that the car driver could have avoided the accident, so the driver of the car was himself negligent in causing the accident cannot be accepted when it has already been held that the accident has been caused due to sole negligence of the driver of the offending stationed truck in the busy road. The proposition of law laid down in Harbans Kaur case [New India Assurance Co. Ltd. v. Harbans Kaur, 2010 SCC OnLine P&H 7441 : (2010) 4 PLR 422 (P&H)] and T.M. Chayapathi case [New India Assurance Co. Ltd. v. T.M. Chayapathi, 2004 SCC OnLine AP 484 : (2005) 4 ACC 61] is not disputed at all but these authorities are not helpful to the respondents being not applicable on the facts and circumstances of the present case. Likewise, non-examination of minor children of the age of 14 and 9 years who lost their father and mother in the accident cannot be held to be in any way detrimental to the case of the claimants when eyewitness to the occurrence has proved the accident having been caused by the negligence of Respondent 1 driver of the offending vehicle.
25. Moreover, in Girdhari Lal v. Radhey Shyam [Girdhari Lal v. Radhey Shyam, 1993 SCC OnLine P&H 194 : PLR (1993) 104 P&H 109] , Sudama Devi v. Kewal Ram [Sudama Devi v.Kewal Ram, 2007 SCC OnLine P&H 1208 : PLR (2008) 149 P&H 444] andPazhaniammal case [New India Assurance Co. Ltd. v. Pazhaniammal, 2011 SCC OnLine Ker 1881 : 2012 ACJ 1370] our own Hon'ble High Court has held that ''it is, prima facie safe to conclude in claim cases that the accident has occurred on account of rash or negligent driving of the driver, if the driver is facing the criminal trial on account of rash or negligent driving.'
26. Moreover, Respondent 1 driver of the offending vehicle has not appeared in the witness box to deny the accident having been caused by him, therefore, I am inclined to draw an adverse inference against Respondent 1. In this context, I draw support from a judgment of the Hon'ble Punjab & Haryana High Court reported asBhagwani Devi v. Krishan Kumar Saini[Bhagwani Devi v. Krishan Kumar Saini, 1986 SCC OnLine P&H 274 : 1986 ACJ 331] . Moreover, Respondent 1 has also not filed any complaint to higher authorities about his false implication in the criminal case so it cannot be accepted that Respondent 1 has been falsely implicated in this case.
27. In view of above discussion, it is held that the claimants have proved that the accident has been caused by Respondent 1 by parking the offending vehicle bearing No. HR 02 AF 8590 in the middle of the road in a negligent manner wherein Vinod Saini and Smt Mamta Saini have died and claimants Archit Saini and Gauri Saini have received injuries on their person. Shri Vinod Saini, deceased who was driving ill-fated car on that day cannot be held to be negligent in any way. Accordingly, this issue is decided in favour of claimants."
(emphasis supplied)"
16. It is admitted position of fact that the charge-sheet was laid against the driver of the Wagon R. who did not appear before the Tribunal. The finding of fact is that the Wagon R came from opposite side and dashed the stationery Indica Car from wrong side. It is not the case that the offending vehicle has dashed the Indica car from behind and, therefore, we also uphold the negligence of the deceased to the tune of 10% and that of the driver of offending vehicle to the tune of 90%.
17. However, as far as legal heirs of deceased-Sunil is concerned, Sunil having not contributed to the accident having taken place, qua him the decision of the Apex Court in Khenyei (Supra) will apply and no amount should be deducted from compensation payable to him.
18. This takes us to the compensation in both the matters. The deceased were real brothers who have left behind them their elder and younger brothers and a mother who was aged 55 years in the year of accident. It is contended by Sri Radhey Shyam, learned counsel for the Insurance Company that when the mother is there, brothers would not be entitled for any amount unless it is proved that they were dependent on them. The principle enunciated by the Apex Court in several decisions lay down that legal representative would be entitled to the compensation and it is inter se between the heirs of class I and class II to apportion the amount.
(F.A.F.O. No. 4117 of 2018 : Deceased-Manoj Kumar)
19. Deceased- Manoj Kumar was 20 years of age. The Tribunal has considered his income to be Rs.4500/- per month, deducted 1/2 towards personal expenses, applied multiplier of 18, added Rs.15000/- towards non pecuniary damages and ultimately awarded Rs. 4,50,900/- with interest at the rate of 7% after deducting 10% negligence.
20. It is submitted by learned counsel for the appellant that the income considered by the Tribunal is bad in the eye of law as deceased was driver by profession and was earning Rs.7800/- per month in the year of accident. It is further submitted that the Tribunal has not granted any amount towards future loss of income which should be granted in view of the decision of the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093. It is also submitted by learned counsel for the appellant that deduction towards personal expenses of the deceased should be 1/3rd as the deceased was survived by his mother and two brothers. It is also submitted that the amount under non-pecuniary heads and interest awarded by the Tribunal is on the lower side and require to be enhanced.
21. As against this Sri Radhey Shyam, learned counsel for the respondent-Insurance Company states that the income which has not been proved cannot be granted; that the Tribunal has rightly not granted future income as on the date of award, the decision in Sarla Verma and others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) was in vogue.
22. Having heard learned counsel for the parties and perused the award, we recapitulate the income of deceased-Manoj Kumar, who was driver by profession. His driving license was produced on record. Recently, the Apex Court in Smt. Meena Pawaia & others Vs. Ashraf Ali and others 2021 0 Supreme (SC) 694, has held that the appellate Court and the Tribunals should consider the potential of earning of a person. Therefore, we consider the income of the deceased to be Rs.6,000/- for a driver in the year 2014. To which, 40% should be added towards future loss of income as the deceased was below 40 years of age. As far as multiplier is concerned, there is no dispute. The deduction towards personal expenses of the deceased would be 1/2 as has been done by the Tribunal and not 1/3rd as the deceased was bachelor. The mother of the deceased would be entitled to Rs.40,000/- towards filial consortium plus Rs.30,000/- towards funeral charges, which will bring the figure to Rs.70,000/- towards non-pecuniary heads. Hence, the total compensation payable to the appellants is computed herein below:
i. Monthly Income Rs.6,000/-
ii. Percentage towards future prospects : 40% namely Rs.2,400/-
iii. Total income : Rs. 6,000 + 2,400 = Rs.8400/-
iv. Income after deduction of 1/2 : Rs.4200/-
v. Annual Income : 4200 x 12 = 50,400/-
vi. Multiplier applicable : 18 vii. Loss of dependency: Rs.50,400 x 18 = Rs.9,07,200/-
viii. Amount under non-pecuniary head : 70,000/-
ix. Total compensation : 9,77,200/-
x. Compensation payable to claimant after deduction of 10% negligence on the part of the deceased : 8,79,480/-
(F.A.F.O. No. 4118 of 2018 : Deceased-Sunil)
23. Deceased- Sunil was 18 years of age and was Salesman in Wine Shop. The Tribunal has considered his income to be Rs.3000/- per month, deducted 1/3rd towards personal expenses, applied multiplier of 18, added Rs.15000/- towards non pecuniary damages and ultimately awarded Rs.4,47,000/- with interest at the rate of 7%.
24. It is submitted by learned counsel for the appellant the Tribunal has considered the income of the deceased to be Rs.3,000/- per month which is bad and as the deceased was Sales Man in Wine Shop and was earning Rs.12000/- per month, hence, this income should be considered. It is further submitted that the Tribunal has not granted any amount towards future loss of income which should be granted in view of the decision of the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093. It is also submitted that the amount under non-pecuniary heads and interest awarded by the Tribunal is on the lower side and requires to be enhanced.
25. As against this Sri Radhey Shyam, learned counsel for the respondent-Insurance Company states that the income which has not been proved cannot be granted; that the Tribunal has rightly not granted future income as on the date of award, the decision in Sarla Verma and others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) was in vogue. It is also submitted by learned counsel for the respondent that deduction towards personal expenses of the deceased would be 1/2 as the deceased was bachelor.
26. Having heard learned counsels for the parties and perused the award, we recapitulate the income of deceased-Sunil, who was Salesman in a Wine Shop. Recently, the Apex Court in Smt. Meena Pawaia & others Vs. Ashraf Ali and others 2021 0 Supreme (SC) 694, has held that the appellate Court and the Tribunals should consider the potential of earning of a person. Therefore, we consider the income of the deceased to be Rs.4500/-. To which, 40% should be added towards future loss of income as the deceased was below 40 years of age. As far as multiplier is concerned, there is no dispute. The deduction towards personal expenses of the deceased would be 1/2 and not 1/3rd as the deceased was bachelor. The mother of the deceased would be entitled to Rs.40,000/- towards filial consortium plus Rs.30,000/- towards funeral charges, which will bring the figure to Rs.70,000/- towards non-pecuniary heads. Hence, the total compensation payable to the appellants is computed herein below:
i. Monthly Income Rs.4500/-
ii. Percentage towards future prospects : 40% namely Rs.1800/-
iii. Total income : Rs. 4500 + 1800 = Rs.6300/-
iv. Income after deduction of 1/2 : Rs.3150/-
v. Annual Income : 3150 x 12 = 37,800/-
vi. Multiplier applicable : 18 vii. Loss of dependency: Rs.37,800 x 18 = Rs.6,80,400/-
viii. Amount under non-pecuniary head : 70,000/-
ix. Total compensation : 7,50,400/-
27. 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."
28. No other grounds are urged orally when the matter was heard.
29. In view of the above, the both the appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the difference 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 in both the matters. However, from the date of the decision of Tribunal i.e. 24.9.2015 till the date of filing of the appeal i.e. 6.5.2016, namely the delay in filing the appeal, interest would not be payable to the claimant in both the appeals in view of the decision in Lakkamma and Others Vs. The Regional Manager M/s United India Insurance Co. Ltd., AIR 2021 SC 3301.
30. 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.
31. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagauri 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.
32. 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 judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.
33. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 8 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.
34. We are thankful to the learned Advocates for ably assisting the Court.
Order Date :- 21.3.2022 DKS