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2021 DIGILAW 1065 (ALL)

Israt Jahan v. Sandeep Kumar

2021-09-16

K.J.THAKER, SUBHASH CHAND

body2021
JUDGMENT : Subhash Chand, J. 1. Heard Sri Ram Singh, learned counsel for the appellants, Sri S.K. Mehrotra, learned counsel for the respondent-Insurance Company in both the appeals. 2. Both these appeals challenge the Judgment and award dated 22.5.2015 passed by Motor Accident Claim Tribunal/Special Judge SC/ST, District Fatehpur (hereinafter referred to as 'the Tribunal') in Motor Accident Claim Petition Nos. 87 of 2014 & 88 of 2014 awarding a sum of Rs. 1,60,000/-and Rs. 5,27,000/-respectively. 3. Facts in brevity as per the claim petition are that on 16.2.2014, husband of the deceased, namely, Mohd. Sabir and daughter of Kausar Jahan, after attending an invitation at Village Ladigavna, PS Lalauli, District Fatehpur, were coming back to Village Bilandpur, PS Kotwali, District Fatehpur riding on motor cycle bearing Registration No. UP 71 L 6352. As soon as they reached on Banda Sagar thoroughfare falling under area area Ghazipur, District Fatehpur near Mohini Nagar Board ahead R.V.S. International School, driver of pick up van bearing Registration No. UP 71 T 4087 on its way Fatehpur to Bahuwa, driving rashly and negligently, without blowing horn came and dashed the motor cycle as a result of which husband of the claimant died on the spot while her daughter was rushed to District Hospital, Fatehpur where she was declared dead. At the time of death Mohd. Sabir was aged 33 years while the daughter was about 12 years of age. 4. Claimant-legal heirs of both the deceased filed a claim petition under Section 140 read with Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'). The respondent filed its reply one of the denial. Neither the Insurance Company nor the owner led any evidence. The accident having occurred involving both the vehicles is now accepted position as neither the owner nor the Insurance Company have challenged the findings on any of the issues decided against them by the Tribunal. 5. The only question in both the appeals to be decided by us is the quantum awarded. 6. The Tribunal has awarded a sum of Rs.1,60,000/-with 7 per cent interest for the death of minor daughter of the claimant. Deceased was 12 years of age at the time of accident. 5. The only question in both the appeals to be decided by us is the quantum awarded. 6. The Tribunal has awarded a sum of Rs.1,60,000/-with 7 per cent interest for the death of minor daughter of the claimant. Deceased was 12 years of age at the time of accident. The Tribunal has gone on the basis of principles for grant of compensation as per Section 163 A of M.V. Act and has considered the income of the deceased to be Rs. 15,000/-per year and has deducted 1/3rd for personal expenses and multiplied the same with 16 and granted Rs.10,000/-as non pecuniary damages. 7. Learned counsel Sri Ram Singh for the appellants has relied on the Judgments of Apex Court in Kishan Gopal and another Vs. Lala and others, (2014) 1 SCC 244 ; Rajendra Singh and others Vs. National Insruance Company Ltd. And others, 2020 0 Supreme (SC) 411; and Judgment of this Court in Nagma Bano Vs. Harish Chandar Gupta and three others, 2017 LawSuit (All) 4510 so as to contend that the claimant, who is mother, is entitled to a sum of Rs.5,00,000/- for the death of twelve year old child. 8. The decision in Nagma Bano (supra), Kishan Gopal (supra), which is distinguished in Rajendra Singh (supra) and, without further delving into this issue, we grant a sum of Rs.2,95,000/-as granted in Rajendra Singh for the death of minor daughter, namely, Kausar Jahna with 7.5 interest from date of claim petition till deposit of differential amount before the Tribunal. 9. As far as the death of husband of the claimant is concerned, the deceased was serving in a foreign country. The recent Judgment of the Apex Court in United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder Kaur and others, 2020 (3) TAC 6 (SC) and the Judgment of this Court in FAFO No. 2235 of 2014, Saiyyad Azadar Husain Vs. Swami Viveka Nand Vidhyashram and another, decided on 5.8.2021, which are pressed into service would enure for the benefit of the appellants. The evidence has been disbelieved by the Tribunal only on the ground that the claimants did not examine anybody from office where the deceased was serving in foreign country. The passport, visas and all other material, which we have perused, would permit us to consider his income as Rs.10,000/-as he was skilled labourer and was in a foreign country. The evidence has been disbelieved by the Tribunal only on the ground that the claimants did not examine anybody from office where the deceased was serving in foreign country. The passport, visas and all other material, which we have perused, would permit us to consider his income as Rs.10,000/-as he was skilled labourer and was in a foreign country. As he was having a fixed income, the addition of 50 per cent towards future prospect made by the Tribunal is maintained. The deceased had a wife and two minor children, hence, deduction of 1/3rd is maintained, multiplier of 16 is also maintained. The amount granted for non-pecuniary damages by the Tribunal is enhanced to Rs.70,000/-. 10. Hence, the total compensation payable to the appellants in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 is computed herein below: i. Income Rs.10,000 p.m. ii. Percentage towards future prospects : Rs.5,000/- iii. Total income : Rs.10,000/- +Rs.5,000/- = Rs.15,000/- iv. Income after deduction of 1/3rd towards personal expenses : Rs.10,000/- v. Annual income : Rs.10,000/- x 12 = Rs.1,20,000/- vi. Multiplier applicable : 16 vii. Loss of dependency: Rs.1,20,000/- x 16 = Rs.19,20,000/- viii. Amount under non pecuniary heads : Rs.70,000/- ix. Total compensation : Rs.19,90,000/- 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 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." 12. No other grounds are urged orally by any of the advocates when the matter is being heard and decided. 13. No other grounds are urged orally by any of the advocates when the matter is being heard and decided. 13. 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 of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment is not passed because applicant /claimant is neither illiterate nor rustic villager. 14. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani vs. 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. 15. In view of the above, both these appeals are 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. 16. 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 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.