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Allahabad High Court · body

2022 DIGILAW 184 (ALL)

Mushtari Begum v. National Insurance Company Limited

2022-02-14

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : Ajai Tyagi, J. 1. This appeal has been preferred by the claimants-appellants against the judgment and award dated 19.07.2005 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Azamgarh (hereinafter referred to as ‘Tribunal’) in M.A.C.P. No. 308 of 1999 (Mushtari Begum and others Vs. Kamla Shankar and others), whereby the learned Tribunal has awarded a sum of Rs.3,67,000/- as compensation to the claimants with interest at the rate of 6% per annum. 2. The claimants-appellants have preferred this appeal for enhancement of quantum. 3. The brief facts of the case are that claimants-appellants filed a Motor Accident Claim Petition before the Tribunal for claiming the compensation under Motor Vehicles Act, 1988 for the death of Rijwan @ Machhan in a road accident with the averments that on 16.08.1999 the deceased was going from his house to his brick-kiln in Azamgarh by car bearing no. U.P. E 928 at 10:20 AM, when he reached village Alipur within the jurisdiction of Tehsil Sagri, a bus bearing no. U.P. 53 A 6885 was coming from opposite direction, which was being driven very rashly and negligently by its driver. The aforesaid bus being driven in such a manner dashed the deceased’s car. In this accident, deceased sustained very serious injuries and died on the way to hospital. 4. Aggrieved mainly with the compensation awarded, the appellants preferred this appeal. 5. Heard learned counsel for the parties and perused the record. 6. The accident is not in dispute. The Oriental Insurance Company Limited (hereinafter referred to as ''Insurance Company') has not challenged the liability on it. Now the only issue to be decided is the quantum of compensation awarded by the Tribunal. As no other argument was advanced by any of the parties when the matter was heard, the details of case except for deciding the compensation are not being narrated. 7. Learned counsel for the appellants-claimants has submitted that the age of the deceased was 40 years at the time of accident. He was owner of brick-kiln and having agriculture farm also. It is also submitted that income of the deceased was not less than Rs.5,000/-per month but learned Tribunal has assessed his income only Rs.3,000/-per month, which is on the lower side. He was owner of brick-kiln and having agriculture farm also. It is also submitted that income of the deceased was not less than Rs.5,000/-per month but learned Tribunal has assessed his income only Rs.3,000/-per month, which is on the lower side. It is next submitted that learned Tribunal has not awarded any sum towards future loss of income and has deducted 1/3rd towards personal expenses of the deceased while deceased has left seven dependents, hence deduction towards personal expenses should have been 1/5th of the income. 8. Learned counsel for the appellants-claimants did not disagree with the multiplier of 15 as applied by the learned Tribunal but it is contended that learned Tribunal has awarded only Rs.5,000/- towards loss of consortium and Rs.2,000/- for funeral expenses, which are on very lower side. No other argument was placed by the appellants-claimants on the issue of amount of compensation. 9. Learned counsel for the Insurance Company vehemently opposed the arguments placed by the appellants and submitted that learned Tribunal has not committed any error or illegality in fixing the compensation. Tribunal has made correct assessment of income of the deceased and sufficient compensation has been awarded in accordance with law. Hence, it needs no interference by this Court. 10. Perusal of record shows that it is admitted fact that the age of the deceased was 40 years at the time of accident but learned Tribunal has assessed his income Rs.3,000/- per month-, which is on lower side. Keeping in view of the fact that deceased was brick-kiln owner and having agriculture income also, we assess the monthly income of the deceased as Rs.5,000/- per month i.e. Rs.60,000/- per annum. 11. The Tribunal has not added any percentage of amount towards future loss of income, which, in our opinion, is grave error. Since, the deceased will fall within the category of self-employed and his age was 40 years at the time of accident, 25% shall be added towards future prospects as held by Hon'ble Apex Court in National Insurance Company vs. Pranay Sethi [2014 (4) TAC 637 (SC). As the number of dependents is seven, 1/5 will be deducted for personal expenses of the deceased. The age of the deceased was 40 years, therefore, as per judgement of Hon'ble the Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 Lawsuit (SC) 613, multiplier of 15 shall be applied. As the number of dependents is seven, 1/5 will be deducted for personal expenses of the deceased. The age of the deceased was 40 years, therefore, as per judgement of Hon'ble the Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 Lawsuit (SC) 613, multiplier of 15 shall be applied. Tribunal has awarded only 5,000/- for loss of consortium and Rs.2,000/- for funeral expenses, which are on very lower side. According to the judgement of the Apex Court Pranay Sethi (supra) and Sarla Verma (supra), appellants shall be entitled to get Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. Apart from it, the wife of the deceased shall be entitled to get Rs.40,000/- for loss of consortium with increase of 10% every three years. Hence, we grant Rs.1,00,000/- under non-pecuniary head. 12. Hence, the total compensation, in view of the above discussion, payable to the appellants-claimants is being computed herein below : i. Annual Income 60,000/-Per annum (Rs.5,000 X 12) ii. Percentage towards future prospects 25% Rs.15,000/- iii. Total income Rs.60,000/-+ Rs.15,000/-= Rs.75,000/- iv. Income after deduction 1/5th Rs.60,000/- v. Multiplier applicable 15 vi. Loss of Dependency Rs.60,000 X 15 = Rs.9,00,000/- vii. Amount under non pecuniary head Rs.1,00,000/- viii. Total Compensation Rs.9,00,000+1,00,000/-= Rs.10,00,000/- 13. 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." 14. Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment. 15. In view of the above, the appeal is partly allowed. Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment. 15. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company. shall deposit the amount within a period of 08 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. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [ 2007 (2) GLH 291 ] and this High Court in 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 claimants 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) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.