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Allahabad High Court · body

2018 DIGILAW 396 (ALL)

SAVITA v. RAJBALI YADAV

2018-02-13

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT : (Delivered by Hon'ble Irshad Ali, J.) Heard learned counsel for the parties. The instant First Appeal From Order has been filed by the claimants-appellants challenging the judgement and award dated 27.4.2013 passed by Motor Accident Tribunal / Special Judge (E.C. Act), Allahabad in Motor Accident Claim Petition No. 182 of 2011 (Smt. Savita Devi & others Vs. Rajbali Yadav & another). Brief facts of the case are that on 16.2.2011 at about 4.00 p.m., the deceased Jagat Narayan Maurya was going from Hanumanganj to Allahabad by Motorcycle bearing registration no. 70 AR 1850 and due to rash and negligent driving of Appe vehicle bearing registration no. U.P. 70 BT 6563 collided with the motorcycle of the deceased where Jagat Narayan Maurya (deceased) sustained serious injuries resulting into his death within two hours. The claim petition was filed by the wife of the deceased Smt. Savita Devi before the tribunal for awarding of compensation of Rs. 28,20,000/-. Learned counsel for the claimants-appellants submitted that the tribunal has committed manifest error of law by awarding lesser compensation ignoring the documentary and oral evidences available on record. He submitted that the deceased Jagat Narayan Maurya was a marvel Mistri and was earning Rs. 12,000/- per month but the tribunal has illegally assessed Rs. 3000/- per month ignoring the documentary and oral evidences on record. Learned counsel for the appellant next submitted that the deceased was below 40 years of age so that he was entitled for the grant of future prospect of 50% of the income which was liable to be added as future prospect according to Rule 220-A (III) of the Motor Vehicle (Amendment) Rules, 2011. He further submitted that the Tribunal has erred in deducting 1/4 from the income of the deceased which is not justifiable in law. According to U.P. Motor Vehicle Rules 2011, the deduction would have been 1/5 on the ground that there are 10 dependent in the family of the deceased. He next submitted that the tribunal has further erred in awarding 6% interest on the payment, so awarded to the appellants-claimants. On the other hand, learned counsel for the respondents submitted that the tribunal has not committed any illegality or infirmity while passing the judgement and award. Thus, no interference is called for, accordingly, appeal lacks merit and is liable to be dismissed. On the other hand, learned counsel for the respondents submitted that the tribunal has not committed any illegality or infirmity while passing the judgement and award. Thus, no interference is called for, accordingly, appeal lacks merit and is liable to be dismissed. We have heard learned counsel for the parties and perused the impugned judgement and award and other materials brought on record. In regard to the first submission of the learned counsel for the appellants, it is relevant to take into consideration that the deceased Jagat Narayan Maurya was a marvel Mistri and at the time of accident, the marvel Mistri would earn Rs. 500/- to 600/- per day. Thus, the income of the deceased determined by the tribunal that he was earning Rs. 100/- per day is not sustainable in law. The income of the deceased would have been fixed at least Rs. 300/- per day being marvel Mistri i.e. Rs. 9,000/- per month. Thus, we hold the income of the deceased Rs. 300/- per day i.e. Rs. 9,000/- per month. On bare perusal of impugned judgement, it transpired that the multiplier of 12 has been applied in the present case which is also not justifiable in law. As per constitutional Bench judgement of Apex Court in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another 2009 (6) SCC 121 , the multiplier of 15 should have been applied as the age of the deceased was 40 years at the time of his death, thus, multiplier of 15 is applicable in the present case. In regard to grant of future prospects, the age of the deceased has been determined as 40 years, thus, 40% of the income was required to be added on the established income of the deceased, in regard to the deduction towards personal and living expenses would have been made 1/5 in place of 1/4. The deduction as per the Constitutional Bench of Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others 2017 ACJ 2700 , if the dependent of the family exceeds from six then the deduction would be 1/5 towards personal and living expenses. Thus, we hold that the tribunal has committed manifest error of law in deducting 1/4 under the head of personal and living expenses. In regard to the grant of award under the conventional heads of Rs. Thus, we hold that the tribunal has committed manifest error of law in deducting 1/4 under the head of personal and living expenses. In regard to the grant of award under the conventional heads of Rs. 2000/- for funeral expenses and Rs. 5000/- for the loss of estate which is illegal and contrary to the judgement in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others (supra), the Hon'ble Apex Court in paragraphs 61 (VIII) has held that the reasonable expenses on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. Paragraph 61 of the aforesaid judgement is quoted herein below:- "61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was 48 between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." Accordingly, we allow the appeal and set aside the judgement and award dated 25.5.2013 passed by the Tribunal and enhance the compensation awarded by the Tribunal in the following manner:- S. No. Heads Calculation (i) Income Rs. 9,000/- per month (ii) 40% of (i) above to be added as future prospects (Rs. 9,000 + 3,600) = Rs. 12,600/- per month (iii) 1/5 of (ii) deducted as personal expenses of deceased. Rs. 12,600-2,520 = Rs. 10,080/- per month (iv) Compensation after multiplier of 15 (Rs. 10,080 x 12 x 15) = Rs. 18,14,400/- (v) For non-pecuniary damages (Funeral Expenses and loss of estate) Rs. 15,000 + 15,000 + 40,000 = Rs. 70,000/- Total compensation Rs. 18,84,400/- In view of the above, the compensation of Rs. 4,12,000/- awarded by the Tribunal is enhanced to Rs. 18,44,400/-. The Insurance Company is directed to pay the enhanced amount to the claimants-appellants @ 6% simple interest per annuam from the date of presentation of claim petition before the Tribunal. In view of the aforesaid observation and direction, the appeal succeeds and is allowed. No order as to costs.