Allahabad High Court
Smt. Sunita Bansal And Another vs Smt. Ranjana Gupta And Another on 12 May, 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. - 2030 of 2011 Appellant :- Smt. Sunita Bansal And Another Respondent :- Smt. Ranjana Gupta And Another Counsel for Appellant :- Sanjay Agrawal,Abhijit Banerjee,Sundeep Agarwal Counsel for Respondent :- Arun Kumar Srivastava Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. Heard learned counsel for the appellants and learned counsel for the respondents. Perused the record.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 30.11.2010 passed by Motor Accident Claim Tribunal Agra/Additional District Judge, Court No.4, Agra (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.458 of 2009 awarding a sum of Rs.2,59,000/- 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 and, therefore, issues decided by the tribunal other then grant of compensation have attained finality. The only issue to be decided is, the quantum of compensation awarded.
4. The brief facts as culled out from the record are that on 25.05.2009 at about 12.00 p.m., deceased Rahul Bansal aged about 20 years along with one Prashant Goyal was going by the Honda Activa Scooter as a pillion rider to his college in a moderate speed on his left side, a truck no.RJ-29/GA-0223 which was being driven ahead of deceased, in a very high speed suddenly applied brake and due to which scooter collided with the truck, the deceased plying along with Prashant Goyal sustained several injuries and died on the same day.
5. It is submitted by Shri Sundeep Agarwal, learned counsel for appellants that the Tribunal refused to consider the Income Tax Returns of the deceased and it is further submitted by Shri Agarwal that young boy who was Student of Engineering may have taken loan that cannot be adversely held against the earning capacity of the deceased. It is not proved by any cogent evidence by the respondents that the evidence of PW-3 is unreliable. It is further submitted that 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 which is granted and the interest awarded by the Tribunal are on the lower side and requires enhancement. Learned counsel for appellants submitted that deceased was Student of Engineering and he was also doing part time job and was earning Rs.10,000/- per month. It is also submitted that as the deceased was looking after his father and mother, the deduction towards personal expenses of the deceased who was bachelor and 20 years of age should be 1/2. The multiplier has to be as per age of deceased, i.e., 20 years and it should have been 18 instead of 14 as awarded by the tribunal. No cogent reasons except that reasonable compensation would be if multiplier of 14 is granted as per age of mother. The tribunal has considered the judgment of Sarla Verma (supra) wherein also it is held that age of deceased be considered. The judgement of Sarla Verma (Supra) has been totally misinterpreted by the learned Judge. The tribunal could have very well even relied on the judgment titled National Insurance Company Ltd v. Shyam Singh and others, 2011 ACJ 1990 SC referred by reiterating Sarla Verma (Supra) which also should have been looked into by the tribunal while deciding the multiplier. The tribunal should not have taken the multiplier of the mother. However, it is now settled legal position that age of the deceased has to be considered. The tribunal has not assessed the future loss of income and it should be 40% of income as per U.P. Motor Vehicles Rules, 2011 and Pranay Sethi (Supra).
6. Learned counsel for the respondent-Insurance company, has vehemently submitted that the compensation awarded by the Tribunal is just and proper and does not call for any enhancement. It is also contended that there is no documentary evidence to show that the income of the deceased was Rs.10,000/- p.m. in the year 2011, i.e., year of accident.
7. The moot question which arises before us, whether this Court should concur with funniest reasons given by the learned tribunal sought to be concurred with and reiterated and supported by Shri Arun Kumar Srivastava, learned counsel for respondent-insurance company that a student of Engineering who had taken loan could not serve as he had taken educational loan and could not serve in a private firm. It is submitted by Shri Srivastava that reasoning of the Tribunal are germane and the income of the deceased was rightly considered to be Rs.3,000/- per month as per he was a student and income is not proved.
8. The reasoning given by the tribunal is not only perverse but it has misled itself and misread the judgement of the Apex Court case titled Smt. Sarla Verma Vs. Delhi Transport Corporation and others, 2009 (3) RAJ 373 and has brushed aside the judgments cited by claimants. As far as reasonings and income of deceased are concerned admitted position of facts are as follows:-
(a) Deceased was Student of Engineering and was 20 years of age;
(b) IT returns of the deceased were filed;
(c) he was part time employed; and
(d) the salary certificate is proved by cogent evidence.
9. The tribunal held that as the income of the deceased was not proved, therefore daily wage of labourer should be considered as an income and no amount for future loss could be given. This again if fallacious reading of the facts and non grant of future loss is against the mandate of the Apex Court.
10. It is not proved to the contrary by Insurance Company, therefore, placing not reliance on the document by the tribunal cannot be accepted by this Court as the reason for not accepting IT returns, is that a young student cannot travel to serve and thus considered the minimum amount as income of student.
11. The tribunal with due respect has not taken what is known as holistic view of the matter, the young boy who was aged about 20 years was studying Engineering even if go by the decision of the Apex Court in the case of Meena Pawaia & ors. Vs. Ashraf Ali & ors, 2021 LawSuit (SC) 743 and the judgment cited of this Court and Apex that the tribunal has taken a holistic view in the matter even if the tribunal did not believe that he was serving, the tribunal could not have considered his income as that of a labourer.
12. Having heard learned counsels for the parties and considered the factual data, the accident occurred on 25.05.2009 causing death of Rahul Bansal who was also 20 years of age and left behind him his father and mother. The Tribunal has assessed the income of the deceased to be Rs.3000/- per month is not just and proper, it requires to be enhanced. The income as decided by the tribunal requires interference by this Court. The tribunal has also committed error in not considering future prospects and personal expenses of the deceased and granting multiplier of 14 instead of 18 on basis of wife as awarded by the tribunal requires to be enhanced as per age of the deceased.
13. As far as beneficial piece of legislation is concerned, the strict rules of Civil Procedure Code and Evidence Act are not required to adhered to.
14. The tribunal has erred itself in not considering the income and future prospects as per age of the deceased. The income looking to the private employment and the student of engineering, his income must be Rs.10,000/- p.m. and same should be considered. The deceased was below the age of 40 years and self employed, hence 40% of the income will have to be added in view of the decision of the Apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Versus Susamma Thomas reported in 1993 (0) AIJEL- SC 9412 reiterated in Pranay Sethi (Supra). Looking to the general trend even in Gobald Motor Service Ltd. and another Vs. R.M.K Veluswami and other, 1962 SCR(1) 929, the addition of 40% can be granted. The tribunal even at the earliest judgment it would not be committed this fallacy.
15. In this backdrop we 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.10,000/- p.m. ii. Percentage towards future prospects : 40% namely Rs.4000/-
iii. Total income : Rs. 10,000 + Rs. 4,000= Rs.14,000/-
iv. Income after deduction of 1/2 : Rs.7000/-
v. Multiplier applicable : 18 (as the deceased was in the age bracket of 15-20 years) vi. Loss of dependency: Rs.7000 x 18 = Rs.1,26,000/-
vii. Annual income = Rs.1,26,000 x 12 =Rs.15,12,000/-
viii. Under the head of non pecuniary damages = Rs.50,000 + Rs.50,000 (as children are 6 and 13 years of age)= Rs.1,00,000/- ix. Total compensation : Rs.16,12,000/-.
16. The recent judgment of the Apex Court in Kurvan Ansari Alias Kurvan Ali Vs. Shyam Kishore Murmu, 2021 (0) AIJEL-SC 67995 will also have to be looked into.
17. We deem it fit to rely on the judgment of the Apex Court in the case of A.V. Padma and others Vs. R. Venugopal, 2012 (3) SCC 378 wherein the Apex Court has considered the judgment rendered in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas and others, AIR 1994 SC 1631.
18. 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 (supra), the order of investment is not passed because applicants /claimants are neither illiterate nor rustic villagers.
19. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri 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.
20. 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.
21. 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 7 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."
22. In view of the above, the appeal is partly allowed. Judgment and award 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.
23. Recently the Gujarat High Court in case titled the Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No.4800 of 2021 decided on 05.04.2022, it is held that interest awarded by the tribunal under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act, 1961
24. 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 13 years have elapsed since occurrence of accident, the amount be deposited in the Saving Account of claimants in Nationalized Bank. The amount shall be credited in the said account without investment.
25. We are thankful to learned counsel for the parties for ably assisting this court in getting this old appeal disposed of.
Order Date :- 12.5.2022 A.N. Mishra