Allahabad High Court
Union Of India And Another vs Smt. Alka Tyagi And 5 Others on 18 April, 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. 1302 of 2021 Appellant :- Union Of India And Another Respondent :- Smt. Alka Tyagi And 5 Others Counsel for Appellant :- Satish Kumar Rai, Chandra Prakash Yadav Counsel for Respondent :- Rahul Pandey Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per : Dr. K.J. Thaker)
1. Heard Sri Shashi Prakash Singh, assisted by Sri Satish Kumar Rai, learned counsel for the appellant and Sri Rahul Pandey, learned counsel for the respondents-claimants.
2. This appeal challenges the order dated 12.9.2019 which was passed in M.A.C.P. No.787 of 2002 by the Motor Accident Claims Tribunal, Ghaziabad, wherein the Tribunal, after the remand by this Court, has decided the matter on the issue of quantum of compensation as directed by this Court in F.A.F.O. No.1087 of 2007 which was preferred by the claimants (quorum : Hon.Mr.Justice Sudhir Agrawal and Hon.Mr.Justice Brijesh Kumar Srivastava-II).
3. The award was for grant of compensation for the death of the bread winner of whom the respondents are the legal heirs. The respondents had challenged the award passed by Motor Accident Claims Tribunal dated 12.9.2019. First Appeal From Order No.1087 of 2007. No appeal was preferred by the Union of India. The Union of India had not challenged nor had filed any cross-objection in the said appeal. After a period of about 8 years more particularly on 15.7.2015, the matter was remitted back to the Tribunal and paragraph no.11 of the said judgement reads as follows:-
"11. The appeal is accordingly partly allowed. The matter is remanded to the Tribunal to decide the matter afresh on the question of quantum of compensation only. The Tribunal shall not be prejudiced by any of the observations made by us in the body of the judgment. Since the matter is old, it shall be decided by Tribunal expeditiously, keeping its own roster in mind."
4. The matter came to be remanded only on the short point as stated above. We do not find any illegality in quantum fixed by Tribunal. In this appeal, grounds of negligence are urged. Counsel for Union of India has contended that the question of contributory negligence was not decided by the Tribunal. The facts of the case rather there is a categorical challenge in paragraph nos. (vii) and (viii). The question now arises whether after a period of 14 years when the Union of India sat silent, can they now be permitted to raise the following grounds:-
"(vii) Because, the Hon'ble Apex Court in case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and others, reported in (2006) 3 SCC 242, has laid down the law that the drivers of both the vehicles should be held responsible equally in case of head on collision and as such in the present case learned Claims Tribunal had erred in holding the negligence of Bus driver and fixing the entire liability upon the appellant/defendant CRPF Tata Bus.
(viii) Because, the driver of the Bus Shri Ratan Kumar Dutta appeared in the witness box as DW-2 and stated on oath that the deceased was driving his car and coming from the opposite direction. At the time of accident, he was overtaking the three wheeler and in order to crossing the three wheeler, he lost his control and dashed in the offending bus resulting died on the spot."
5. The Tribunal on remand has very categorically mentioned that the parties were heard only for quantum. With this prelude, this appeal preferred by the Union of India and Commandant 48 Vahini, 138 Battalion, C.R.P.F. Group Centre, Durgapur West Bengal (Owner of Vehicle No.HR-68/0104) requires to be decided. In UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SC 948, the Apex Court has held that all the grounds raised in appeal must be decided by the appellate court but at the outset a question would arise can after a period of 15 years, a decided controversy which was already decided and in which the appellant herein had not agitated can be agitated for the first time in challenging the subsequent award. The grounds of challenge is to the order dated 12.9.2019 contending that the said is based on perverse findings of fact and contrary to law. The next ground is urged in paragraph no.8 as narrated herein above. This ground cannot be re-agitated and cannot be re-decided when the Union of India had not agitated this ground in the year 2007. Now raising these grounds for the first time after 15 years while challenging the award of 2019 which had to deal only with compensations cannot be permitted.
6. The submissions that the Insurance company of Maruti Car is necessary party and be impleaded cannot be accepted at this belated stage. It is submitted that the Tribunal has shown unplaced sympathy in calculating the compensation. It is submitted that the quantum granted is highly excessive. It would, therefore, be necessary to evaluate the quantum granted.
7. It is a decided fact that the deceased was salaried person. He was M.Sc. in Organic Chemistry and has done his Ph.D. He was Director with Dr. Tyagi Lab Pvt. Ltd. for which he used to get salary of Rs. 1,80,000/- per annum. The income-tax return have been also considered and it was on the basis of the income-tax return that his income was considered by this High Court while remanding the matter as well as the Tribunal. The Tribunal considered his income to be Rs.6,27,121/- per annum and added only 10% whereas the U.P. Motor Vehicles Rules, 1998 amended in 2011 obliged to add 20% for future loss of income. 1/4th has been deducted as personal expenses looking to the legal heirs of deceased. The Tribunal granted multiplier of 11. Unfortunately, only Rs. 15,000 + Rs. 15,000 + Rs. 40,000/- as non-pecuniary damages as per judgment of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298. We are, therefore, unable to accept the submission of the Counsel for the Union of India that compensation granted is exorbitant rather the Tribunal has not decided compensation as directed by High Court in F.A.F.O. No.1087 of 2007 decided on 15.7.2015.
8. This takes us to the grounds raised, the Tribunal has not directed that the amount earlier deposited be deducted. It goes without saying that the amount earlier paid has to be adjusted and for that no separate order or direction was necessary. We need not to pass any fresh direction on the ground that the interest @ 7% is highly excessive and without jurisdiction. It is not countenanced by us. The Rule 220 of the Uttar Pradesh Motor Vehicles Rules also mentions that 7% rate of interest has to be granted and it is just and proper, infact, as far as issue of rate of interest is concerned, the interest 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.). The compensation which has been awarded is on the basis of the facts and circumstances and observation of this Court in appeal preferred by respondents- claimants and we do not find any reason to interfere in the same.
9. The grounds, which are taken by the appellants except the ground of quantum, cannot be now agitated after a period of 15 years. The said grounds were available to the appellants where the Tribunal decided the lis between the parties namely in the year 2007. Up to 15.7.2015, the appellants herein did not even raise oral objection to the said award where the Tribunal had awarded a meagre sum of Rs. 2,76,500/- whereas this Court deprecated the same by reasoned order on the basis of the income-tax return. The Tribunal fixed notional income was a finding of fact and as narrated above, even in the later part of this second round of litigation, the Tribunal has though considered the judgment of Pranay Sethi (supra). The respondents may have been now tired as 20 years of elapsed from the date they lost their bread-winner. The minors have become major and, therefore, may be the respondents might not have filed what is known as cross-objection or oral cross-objection.
10. The appeal fails and is dismissed. We deprecate the practice of Union of India agitating a ground which has attained finality under the guise that the Tribunal has committed error in not deciding the issue of negligence. It is stated by the appellant that the entire amount has been deposited. We request the registry of the Tribunal to disburse the said amount in view of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442. The record be sent back to the Tribunal.
11. 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 in F.D.R. is to safeguard the interest of the claimants. As 20 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R. We should have dismissed this appeal with costs as it is an after thought to challenge the award on grounds which had attained finality and there is a delay of considerable time but as claimants have not filed cross-objection, but we award litigation fees of Rs. 10,000/- to the claimants for this protracted litigation.
12. We are thankful to both the counsels for getting this matter disposed of.
13. Records be sent back to the Tribunal.
Order Date :- 18.4.2022 Irshad