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2020 DIGILAW 1353 (ALL)

Sarita v. Ankit Kumar

2020-11-23

KAUSHAL JAYENDRA THAKER

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JUDGMENT : KAUSHAL JAYENDRA THAKER, J. 1. Heard Sri. Vijay Prakash Mishra, learned counsel for the appellants and Sri. Saurabh Srivastava, learned counsel for the respondent-Insurance Company. 2. Facts giving rise to this appeal in narrow compass is that on 5.11.2014, husband of appellant no. 1, namely, Sarita along with her brother, namely, Pravin riding on his motorcycle bearing Registration No. DL-7SBW-8095 was going to his village Asawar, Police Station Gulawati from Delhi and when driver, namely, Ankit driving a van bearing Registration No. UP-16BT-8799 rashly and negligently dashed the said motorcycle on account of which Raj Kumar sustained severe injuries. He was rushed to district hospital where he breathed his last. 3. The claimants (dependents of the deceased) approached the Motor Accident Claims Tribunal/Additional District Judge, Court No. 9, Bulandshahr (hereinafter referred to as ‘Tribunal’ by way of filing M.A.C.P. No. 174 of 2015 claiming compensation of Rs. 5,00,000/- and interest at the rate of 15%. 4. The Tribunal by way of impugned judgment and award dated 3.9.2016 awarded a sum of Rs. 21,51,140/- as compensation with interest at the rate of 7% from the date of filing claim petition till date of payment. Being dissatisfied, the claimants filed present appeal challenging the said award. 5. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The Insurance Company has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded. 6. I have perused the Judgment and award impugned herein. Submissions of the learned counsel for the appellant as well as submissions of learned counsel for the respondent are heard at length and are considered. 7. The submissions of the learned counsel for the appellants as well as learned counsel for the respondent are heard at length and are considered. Learned Tribunal has evaluated that for the sum of Rs. 2,00,000/- there would be no tax to be deducted then the Tribunal, he has total amount of income and deducts 10% as tax which it could not have done. The income of the deceased as calculated was Rs. 17,885/-. 8. The income of deceased would be Rs. 17,855/- minus tax to be deducted. The appellant does not seek enhancement of salary amount and restricts his claim to Rs. 17,855/- as decided by the Tribunal. The income of the deceased as calculated was Rs. 17,885/-. 8. The income of deceased would be Rs. 17,855/- minus tax to be deducted. The appellant does not seek enhancement of salary amount and restricts his claim to Rs. 17,855/- as decided by the Tribunal. Learned counsel for the appellant submitted that The Tribunal has not granted any amount under the head of future loss of income in spite of the judgment of Apex Court rendered in Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 121 . Sri. Saurabh Srivastava, learned counsel could not point out that Judgment of Sarla Verma (supra) and subsequent Judgment of Apex Court rendered in National Insurance Company Limited vs. Pranay Sethi and Others, 2017 (0) Supreme (SC) 1050, would not apply to the facts of this case. The Tribunal deducted 1/3rd of the income, i.e. Rs. 5,961/- towards personal expenses of the deceased, which, according to the appellants, should be 1/4th. The same is vehemently opposed by Sri. Srivastava and this Court is also in agreement with the submission of Sri. Srivastava that it cannot be 1/4th but 1/3rd only and, thus, the same is maintained. Multiplier of 15 is also in consonance with the decision rendered in Sarla Verma (supra) and Pranay Sethi (supra), which calls for no modification. As far as amount towards non-pecuniary damages are concerned, the Tribunal has awarded Rs. 15,000/- which calls for interference as looking to the Judgment of Pranay Sethi (supra), it should be Rs. 70,000/- plus Rs. 10,000/- for every year, hence, lump sum amount would be Rs. 30,000/- and thus, consolidated amount towards it would come to total of Rs. 1,00,000/-. 9. The learned Tribunal has evaluated that for the sum of Rs. 2,00,000/- there would be no tax deduction then the Tribunal considers total amount of income and deducts 10% as tax which could not have been done. Income of the deceased as calculated was Rs. 17,885/- and that is how the Tribunal has considered the amount. However, the amount of Rs. 17,885/- will have to be considered. The finding of fact of the Tribunal is that son of the deceased has been given employment and, therefore, there is no question of addition of future income. The Tribunal could not have done this. The reason is employment and the income in employment would be because of the service which the son would do. The finding of fact of the Tribunal is that son of the deceased has been given employment and, therefore, there is no question of addition of future income. The Tribunal could not have done this. The reason is employment and the income in employment would be because of the service which the son would do. Compensation is for the loss of the deceased. The decision of the Tribunal on this aspect cannot sustain because the Apex Court in catena of decisions laid down that the appointment of legal heir would not preclude the family from getting the amount under future loss of income. I am supported in my view by the decisions, namely, Vimal Kanwar and Others vs. Kishore Dan and Others, 2013 ACJ 1441 and also in F.A.F.O. No. 1302 of 2006, The New India Assurance Company Ltd. vs. Hoti Lal and Another, decided on 31.1.2018. Non-addition of future loss of income cannot be made applicable. The Judgment of the Apex Court in K.R. Madhusudhan and Others vs. Administrative Officer and Another, 2011 (4) SCC 689 , lays down the principle for deciding future prospects of a salaried person which also nowhere suggests that on death of salaried person if family is benefited by way of retirement benefits or death benefits, the same should not be considered. Hence, the compensation would have to be recomputed. 10. Hence, the compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein-below: (i) Income Rs. 17,885/- (ii) Percentage towards future prospects 50% namely Rs. 8942.5/- (iii) Total income Rs. 17,885 + 8942.5 = Rs. 26827.5 (iv) Income after deduction of 1/3th Rs. 17,885/- (v) Annual income Rs. 17,885 x 12 = Rs. 2,14,620/- (vi) Multiplier applicable 15 (vii) Loss of dependency Rs. 2,14,620 x 15 = Rs. 32,19,300/- (viii) Amount under non pecuniary heads Rs. 1,00,000/- (ix) Total compensation Rs. 33,19,300/- 11. 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 Johat and Others, 2019 (2) TAC 705 (SC) 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. Ltd. vs. Mannat Johat and Others, 2019 (2) TAC 705 (SC) 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.” 12. 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 the amount is deposited. The amount already deposited be deducted from the amount to be deposited. 13. The Tribunal be sent this order so that in future, it will remain vigilant while considering motor accident claims for death of a salaried person. 14. This Court is thankful to Sri. Vijay Prakash Mishra and Sri. Saurabh Srivastava, learned counsel for getting this old matter disposed of during this pandemic.