Smt. Rajeshwari Devi And Others V. The New India Assurance Company Ltd. And Another

FAFO/1768/2010

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This case involves an appeal by the claimants, Smt. Rajeshwari Devi and others, against the judgment and award of the Motor Accident Claims Tribunal, Kanpur Nagar, which had awarded Rs.6,68,100 as compensation for the death of Ramesh Chandra Shivhare in a motor accident. The main contention in the appeal was the inadequacy of the compensation amount, particularly regarding the deceased's income assessment, the multiplier applied, and the lack of future loss of income consideration. The respondents did not contest the liability but defended the compensation amount as just and proper. The High Court, after reviewing the evidence and applicable legal precedents, found merit in the appellants' arguments and modified the compensation amount significantly.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 692140 (HC-ALLAHABAD)
• Appeal Type: Others
• Pronouncement Date: 11-02-2022
• Assessment Year: misc
• Other Referred Cases: Vimal Kanwar and others Vs. Kishore Dan and others, 2013 (3)T.A.C.6(S.C.), Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, Smt. Sudesna and others Vs. Hari Singh and another
• Laws Referred To: National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050, Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121, National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.)
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ASHUTOSH SRIVASTAVA
• Assessee Lawyers: MOHD SIDDIQUI
• Keywords: Compensation; Future loss of income; Interest Rate; Motor Accident Claims Tribunal; Multiplier; Negligence; Non-pecuniary damages; Quantum of compensation
• Section: 194A(3)(ix)

Judgement Text

"[1] Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 1768 of 2010 Appellant :- Smt. Rajeshwari Devi And Others Respondent :- The New India Assurance Comapny Ltd. And Another Counsel for Appellant :- Mohd. Naushad Siddiqui Counsel for Respondent :- Ashutosh Kumar Srivastava Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Vivek Varma,J. 1. Heard Sri Mohd. Naushad Siddiqui, learned counsel for the appellants, Sri Ashutosh Kumar Srivastava, learned counsel for the respondent and perused the record. 2. This appeal, at the behest of the claimants, challenges the judgment and award dated 15.3.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.8, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C. Case No.326 of 2005 awarding a sum of Rs.6,68,100/- as compensation with interest at the rate of 6%. 3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondent 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 appellant that the deceased was 45 years of age at the time of accident. The Tribunal has considered income of the deceased to be Rs.7,200/- per month which according to the counsel for the appellant is on the lower side and should be considered at least Rs.2,67,500/- per year as per documentary evidence. It is further submitted that the Tribunal has not granted any amount towards future loss of income of the deceased which should be [2] 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 the multiplier of 11 awarded by the Tribunal is on the lower side and it should be 14 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. It is also submitted that the amount awarded for non- pecuniary damages and the interest are on the lower side and require enhancement. 5. As against this, Sri Ashutosh Kumar Srivastava, learned counsel for the respondent has submitted that the income of the deceased does not require any enhancement as the income which has not been proved cannot be granted. It is further submitted that the compensation awarded by the Tribunal is just and proper and does not call for any interference.. 6. Having heard the counsels for the parties and considered the factual data, this Court finds that the accident occurred on 1.7.2004 causing death of Ramesh Chandra Shivhare who was 45 years of age at the time of accident. The Tribunal has assessed the income of the deceased to be Rs.7,200/- per month which according to this Court, in the year of accident, would be at least Rs.20,000/- per month looking to his profession and the evidence on record. The record and the judgment both goes to show that the deceased had his business and the income tax returns have not been believed by the Tribunal in a hyper technical manner. The widow has categorically mentioned that her husband was a MD in Kapila Pashu Udyog Limited Company and his income was Rs.50,000/- per months. The documentary evidence is also filed. His income has increased from Rs.15,000/- to Rs.45,000/-in the year 2004- 05. His form of income tax return was also filed. From the agricultural income of the factory the income would be Rs.4,80,000/-. The deceased [3] had paid tax of Rs.64,500/- what the Tribunal has done is it has considered the income only on the period when he died. The Tribunal has considered his income at Rs.7225/- which is erroneous. The documentary evidence goes to show that the deceased was earning Rs.4,500/- whereas PW-4 in his testimony that he was earning Rs.30,000/- but the Tribunal considers the income at Rs.7,200/- lumpsum on the basis of income tax return and has not relied on the documentary evidence as they are x-rox copy. On what basis the Tribunal has fixed Rs.7200/- where tax returns are filed there is some discrepancy in testimony of witness which should not be considered for disclosing cogent documentary evidence. To which as the deceased was in the age bracket of 45-50 years of age, 30% of the income will have to be added 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 applicable would be 14 and not 11 and Rs.1,00,000/- requires to be granted under the head of non-pecuniary damages. As far as deduction towards personal expenses of the deceased is concerned, it would be 1/3rd as he was survived by his wife, two sons and father. It is also submitted that the amount for non pecuniary damages and the interest awarded by the Tribunal are on the lower side and require enhancement. The deduction towards personal expenses of the deceased should be 1/4th and not 1/3rd as has been done by the Tribunal as the deceased died leaving behind him his widow, two sons and father. Learned counsel for the appellant has also relied on the decision in Vimal Kanwar and others Vs. Kishore Dan and others, 2013 (3)T.A.C.6(S.C.) 7. Hence, the total compensation payable to the appellants is computed herein below: i. Income Rs.20,000/- ( Rs.2,40,000/- per year) ii. Percentage towards future prospects : 30% namely Rs.6000/- [4] iii. Total income : Rs. 20,000 + 6000 = Rs.26,000/- iv. Income after deduction of 1/3rd : Rs. 17,333/- (rounded up) v. Annual income : Rs.17,333 x 12 = Rs.2,07,996/- vi. Multiplier applicable : 13 vii. Loss of dependency: Rs.2,07,996/- x 14 = Rs.29,11,944/- vii. Amount under non pecuniary heads : Rs.1,00,000/- viii. Total compensation : Rs.30,11,944/- 8. 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.\" 9. No other grounds are urged orally when the matter was heard. 10. 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 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 award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited. 11. Record be sent back to the Tribunal forthwith. 12. 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 [5] 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. 13. 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. 14. 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 not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case. Order Date :- 11.2.2022 Mukesh Digitally signed by MUKESH SRIVASTAVA Date: 2022.03.12 17:08:50 IST Reason: Location: High Court of Judicature at Allahabad "