Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3173 (ALL)

NEW INDIA ASSURANCE CO. LTD. v. SARITA KAPOOR

2016-09-16

KRISHNA MURARI, PRASHANT KUMAR

body2016
JUDGMENT By the Court.—This appeal has been filed by Insurance Company against the judgement and award dated 28.5.2016 passed by the Motor Accident Claims Tribunal/District Judge, Kanpur Nagar in M.A.C.P. No. 813 of 2014 (Smt. Sarita Kapoor and others v. Abhijeet Singh Sanga and others) awarding a sum of Rs. 21,52,800/- as compensation. 2. Facts, in brief, giving rise to dispute are as under : An application seeking compensation to the tune of Rs. 45 Lac was made by the claimant-respondents on the allegations that on 2.4.2004 at about 12.30 p.m. when Durgesh Kapoor, the predecessor-in-interest of the claimant-respondents, was going on his scooter from Sachan Guest House to Barra, he was hit from behind by Safari car bearing registration No. UP-78DV-2879, which was being driven very rashly and negligently. He suffered grievous injuries in the said accident and died while being taken to hospital. The deceased was aged about 54 years and was a contractor with Kanpur Development Authority having annual income of Rs. 3,50,000/-. 3. The proceedings were contested by the respondent Nos. 3 and 4, the owner and driver of the offending vehicle as well as the appellant Insurance company by filing written statement. 4. The Tribunal on analysis of evidence both oral and documentary brought on record by the parties returned a finding that the accident was caused due to rash and negligent driving of the offending vehicle and there was no contributory negligence on the part of the deceased. It was further held that the driver of the offending vehicle was having a valid driving license and the offending vehicle was duly insured with the insurance company and it was having all valid documents. 5. In so far as the quantum is concerned, the Tribunal, on the basis of the income tax return for the last three financial years i.e. 2010-11, 2011-12 and 2012-13 filed in evidence, determined the average income of the deceased to be Rs. 3,32,460/-. The Tribunal added 20% towards future prospect in accordance with Rule 220-A of the Motor Vehicles Rules and after deducting 1/3 towards personal expenses determined a sum of Rs. 2,65,975/- as annual income of the deceased. After applying a multiplier of 8, a sum of Rs. 21,27,800/- was determined by the Tribunal as compensation payable. The Tribunal also awarded a sum of Rs. 5000/- towards funeral expenses, Rs. 10000/- towards loss of consortium and Rs. 2,65,975/- as annual income of the deceased. After applying a multiplier of 8, a sum of Rs. 21,27,800/- was determined by the Tribunal as compensation payable. The Tribunal also awarded a sum of Rs. 5000/- towards funeral expenses, Rs. 10000/- towards loss of consortium and Rs. 10000/- towards loss of estate. In this manner, a sum of Rs. 21,52,800/- was determined as total compensation payable to the claimant-respondents. At the outset, learned counsel for the appellant confines the scope of this appeal only to the question of quantum. Learned counsel for the appellant submits that a sum of Rs. 1.2 Lac reflected in the income-tax return for the financial year 2012-13 towards rental income has wrongly been taken into account inasmuch as even after death, the rental income would be received by the dependent and thus, the said amount is not liable to be taken into consideration while determining the average income. From a perusal of the income tax return for the financial year 2012-13, we find that Rs. 1.20 Lac is reflected as rental income which ought not to have been taken by the Tribunal while determining the average income of the deceased. 6. Learned counsel for the appellant is right in contending that rental income would be continued to be received by the heirs of the deceased and thus the same was not liable to be taken into account while determining the average income. 7. In view of above, the average income of the deceased is to be calculated taking into account the income reflected in the income tax return for last three financial years after deducting a sum of Rs. 1.2 Lac received as rental income. The said amount works out to Rs. 2,32,460/-. Adding 20% towards future prospects in accordance with the Rule 220A, the amount works out to Rs. 3,50,961/-. After deducting 1/3 towards personal expenses, the amount comes to Rs. 2,33,974/-. 8. From the perusal of the impugned judgement and award, we find that the Tribunal has applied multiplier of 8 in accordance with the Second Schedule of the Motor Vehicles Act. However, Hon’ble Apex Court in the case of Sarla Verma v. Delhi Transport corporation, (2009) 6 SCC 121 , has held that multiplier to be used should be as mentioned in Column-4 of the said judgement. Multiplier prescribed by the Hon’ble Apex Court in the age group of 51-55 years is 9. However, Hon’ble Apex Court in the case of Sarla Verma v. Delhi Transport corporation, (2009) 6 SCC 121 , has held that multiplier to be used should be as mentioned in Column-4 of the said judgement. Multiplier prescribed by the Hon’ble Apex Court in the age group of 51-55 years is 9. It may be relevant to quote 21 of the said judgment, which reads as under : “We, therefore, hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlier) which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 9. In view of dictum of the Hon’ble Apex Court in the case of Sarla Verma (Supra), we are of the considered opinion that the Tribunal has wrongly applied multiplier of 8. Whereas multiplier of 11 ought to have been applied by the Tribunal. If a multiplier of 11 is applied, the amount of compensation works out to Rs. 25,73,740/-. We also find from a perusal of the impugned award that only a sum of Rs. 5000/- has been awarded towards funeral expenses, Rs. 10000/- towards loss consortium and Rs. 10000/- towards loss of estate. The amount awarded by the Tribunal under the non-pecuniary headsis extremely on the lower side. 10. Hon’ble Apex Court in the case of Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54 and Kalpanaraj and others v. Tamil Nadu State Transport Corporation, 2014(3) TAC 707(SC), held that guiding principle for determining compensation is that it must be just and reasonable and the Court should not succumb to niceties or technicalities, in such matters while considering the issue of award of compensation under non-pecuniary damages such as loss of consortium, loss of love, care and guidance to children and funeral expenses. It has been observed in paragraph 17 as under: “17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practise of awarding compensation under conventional heads: loss of consortium to thee spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2500 to Rs. 10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma case, it was held that compensation for loss of consortium should be in the range of Rs. 5000 to 10,000. In legal parlance. “consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection. etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United State of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the Courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts awards at least rupees one lakh for loss of consortium.” 11. Again in the case of Kalpanaraj and others (supra), Hon’ble Apex Court raised compensation of Rs. 30,000/- awarded towards loss of consortium and Rs. 20,000/- towards loss of love and affection of the minor children to Rs. Again in the case of Kalpanaraj and others (supra), Hon’ble Apex Court raised compensation of Rs. 30,000/- awarded towards loss of consortium and Rs. 20,000/- towards loss of love and affection of the minor children to Rs. 1,00,000/- each under the said heads finding the sum awarded to be on the lower side in the light of principles laid down in the case of Rajesh (supra). In view of the aforesaid law laid down by the Hon’ble Apex Court, we feel that the claimants are entitled to be awarded a sum of Rs. 25000/- towards funeral expenses, a sum of Rs. 50000/- to the respondent-wife towards loss of consortium and Rs. 50000/- towards loss of estate. 12. At this stage, learned counsel for the appellant vehemently contended that non-pecuniary damages have rightly been awarded in accordance with the Rule 220A of the Motor Vehicle Rules and the two judgements of the Hon’ble Apex Court in the Rajesh (Supra) and Kalpanaraj (Supra) are clearly distinguishable on the ground that they do not deal with a situation where Rule has been framed by the State for determination of compensation. It is also submitted that in an appeal filed by the Insurance Company, no order can be passed adverse to the appellant by increasing the amount of compensation without there being any cross-appeal by the claimants. 13. In so far as the first submission of the learned counsel for the appellant in respect of Rule 220A of the Motor Vehicles Rules is concerned, we do not find any reason to distinguish the aforesaid two judgements of the Hon’ble Apex Court on the ground that they do not deal with a situation where Rule was framed by the State for determination of compensation. Hon’ble Apex Court has clearly ruled that main guiding principle for determining the compensation is that it must be just and reasonable and the Court and tribunal are not required to frugal with regard to award compensation towards funeral expenses and other non-pecuniary damages. 14. The other argument advanced by learned counsel for the appellant that amount of compensation cannot be increased in an appeal filed by the Insurance Company in the absence of cross-appeal by the claimant, is also without any force. 15. 14. The other argument advanced by learned counsel for the appellant that amount of compensation cannot be increased in an appeal filed by the Insurance Company in the absence of cross-appeal by the claimant, is also without any force. 15. Order XLI Rule 33 of the Code of Civil Procedure prescribing the power of Court of appeal clearly provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made as the case may require, and this power may be exercised in favour of all or any of the respondents or parties though they may not file any appeal or objection. Order XLI Rule 33 of the Code reads as under : “33. Power of Court of Appeal—The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [any may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees] [Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.] 16. The provisions of Order XLI Rule 33 C.P.C. was explained by the Hon’ble Apex Court in the case of Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54 , in following words : “The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require. The words “as the case may require” used in Rule 33 Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. What then should be the constraint ? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these : That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal. It is true that the power of the appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.” 17. The same view has again been reiterated in a later decision by the Hon’ble Apex Court in the case of Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43 . We are of the considered view that the conditions as laid down in provisions of Order XLI Rule 33 are satisfied in the present case. In Delhi Electric Supply Undertaking (Supra) the Hon’ble Apex Court has observed that when circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the Court cannot be found wanting when it comes to exercise its powers. Thus the argument in this regard made by the learned counsel for the appellant has no legs to stand and is not liable to be sustained. 18. In view of above facts and discussions, we are of the considered opinion that the claimant-respondents are entitled to be awarded a total sum of Rs. 26,98,740/- as compensation alongwith 7% simple interest from the date of making of the application till the date of actual payment. 18. In view of above facts and discussions, we are of the considered opinion that the claimant-respondents are entitled to be awarded a total sum of Rs. 26,98,740/- as compensation alongwith 7% simple interest from the date of making of the application till the date of actual payment. Accordingly, though the appeal filed by the appellant Insurance Company stands dismissed but the award stands modified to the extent directed above. In the facts and circumstances, we do not make any order as to costs.