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2022 DIGILAW 193 (ALL)

Sonia v. Jaleel

2022-02-15

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : Ajai Tyagi, J. 1. These two appeals are preferred against the same judgement one FAFO No.265 of 2022 on behalf of the claimants for enhancement of amount of compensation and another FAFO No.100 of 2014 by United India Insurance Co. Ltd. for setting aside the impugned judgement. 2. The impugned judgement was passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Saharanpur on 7.10.2013 in MACP No.146 of 2012, Smt. Sonia and others Vs. Jaleel and others by which the claim petition of the claimants was allowed and Rs.4,79,000/- compensation was awarded with 6% per annum rate of interest. 3. The brief facts of the case are that aforesaid claim petition was filed due to the death of deceased Subhash Chand @ Subhash Kumar in a road accident. It is submitted in petition that on 24.06.2012, the deceased was going from his village with his Bhabhi-Smt. Rachana by Motorcycle No.UP-11 AD 9794. At 07:30 PM when he reached near village Chhibna, a tractor trolley No. UP 11 AC 8341 came from the opposite side which was driven by negligently and rashly by its driver. Deceased stopped his motorcycle at the left side of the road but the tractor driver hit the motorcycle. In this accident, deceased sustained fatal injuries and died on way to the hospital. Owner of the tractor and Insurance Company filed their respective statements. Learned Tribunal allowed the petition and awarded Rs.4,79,000/- with 6% rate of interest as compensation. 4. First of all, we take up the contention of the appeal preferred by the Insurance Company. Insurance Company has preferred the appeal merely on the two grounds. One is that at the time of accident, a trolley was attached to the tractor but the trolley was not insured and second ground that at the time of accident, the tractor was being driven by Muntazir but in order to avoid his liability the owner of the tractor produced Mohd. Farmaan as driver of the vehicle. Learned counsel for the Insurance Company submitted that in fact the driver of the tractor have not having a valid license. First information report was lodged against Muntazir showing him the driver of the tractor but the charge sheet was submitted against Mohd. Farmaan due to collusion of the owner of the tractor and the investigating officer. Learned counsel for the Insurance Company submitted that in fact the driver of the tractor have not having a valid license. First information report was lodged against Muntazir showing him the driver of the tractor but the charge sheet was submitted against Mohd. Farmaan due to collusion of the owner of the tractor and the investigating officer. Learned counsel next submitted that it is the admitted case of the claimants that the trolley was attached to the tractor and the trolley was not insured hence at the time of accident, the tractor was being used for commercial purpose and it was being applied in breach of the condition of insurance policy. This contention of Insurance Company is vehemently opposed by the learned counsel for the claimants, who submitted that this provision of law has been settled by this Court in United India Insurance Co. Ltd. vs. Smt. Suman and Others in FAFO No.611 of 2013 dated 06.03.2013. Shri S.D. Ojha, learned counsel for the claimants submitted that this case is covered by the aforesaid case. It is further submitted by Shri Ojha that it is on record that at the time of accident, trolley was vacant and trolley was not being used for any commercial purpose. 5. So far as the question of driver of the tractor is concerned, we are not convinced with the submission made by the Insurance Company. Charge sheet was submitted by investigating officer against Mohd. Farmaan and not against Muntazir. Charge sheet was submitted after making thorough investigation, hence, now it would not be open for the Insurance Company to contend that it is not liable as the charge sheet is submitted against Mohd. Farmaan and not against Muntazir. Submission of Insurance Company is that the trolley should have been insured but once the tractor is insured, the Insurance Company cannot wriggle out from its liability as held by this Court in United India Insurance Co. Ltd. vs. Smt. Suman and Others in FAFO No.611 of 2013. The submission of Insurance Company that tractor was being used for commercial purpose cannot be accepted in absence of any such evidence because nothing was loaded in the trolley at the time of accident and it was vacant. Ltd. vs. Smt. Suman and Others in FAFO No.611 of 2013. The submission of Insurance Company that tractor was being used for commercial purpose cannot be accepted in absence of any such evidence because nothing was loaded in the trolley at the time of accident and it was vacant. Hence, in our considered opinion, the learned Tribunal has not committed any error in law or in facts in holding that appellant-Insurance Company is liable to pay the amount of compensation to the claimants. 6. Now we come to the point of amount of compensation awarded by the Tribunal. 7. Learned counsel for the claimants submitted that Tribunal has assessed the income of the deceased as Rs.3,000/- per month, which is very low because deceased was having agriculture income. Hence at least Rs.6,000/-per month income should have been assessed. It is not disputed by Insurance Company that deceased was not agriculturist. Hence, we assess the income of the deceased at Rs.5,000/-per month. Learned Tribunal has not awarded any sum towards future loss of income. In National Insurance Vs. Pranay Sethi and Others, 2017 Law Suit (SC) 1093, compensation will be awarded for future loss of income also. The age of deceased was 27 years at the time of accident, hence according to the aforesaid judgement 40% will be added for future prospects. The deceased was survived by his wife and three children and father. Therefore, keeping in view the number of dependents ¼ of income should be deducted towards personal expenses of the deceased. Since the age of the deceased was 27 years, therefore, as per the judgement of Hon’ble Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 ACJ 1298 , a multiplier of 17 will be applied. Learned Tribunal has awarded Rs.10,000/- for loss of consortium, Rs.5,000/- for loss of estate and Rs.5,000/- for funeral expenses under the head of non-pecuniary damages, which are on lower side. As per judgement of the Apex Court in Pranay Sethi (supra) claimants shall be entitled to Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate. Apart from it, the wife of the deceased shall be entitled to get Rs.40,000/- for loss of consortium. Non-pecuniary damages are with 10% increase every three years. Hence, we grant Rs.1,00,000/- in the head of non-pecuniary damages. 8. Apart from it, the wife of the deceased shall be entitled to get Rs.40,000/- for loss of consortium. Non-pecuniary damages are with 10% increase every three years. Hence, we grant Rs.1,00,000/- in the head of non-pecuniary damages. 8. Hence, the total compensation payable to the claimants is computed herein below:- i. Annual Income Rs.5,000/- x 12 = Rs.60,000/- ii. Amount towards future prospects 40% = Rs.24,000/- iii. Total Income Rs.60000+ Rs.24,000/- = Rs.84,000/- iv. Income after deduction of 1/4 84,000-21,000 = Rs.63,000/- v. Multiplier applicable 17 vi. Total loss of dependency Rs.63,000/- x 17 = Rs.10,71,000/- vii. Amount under non-pecuniary heads Rs.1,00,000/- viii. Total compensation Rs.10,71,000 + Rs.1,00,000 = Rs.11,71,000/- 9. As Insurance Company has conciliated the matter, 6% per annum rate of interest should be paid. The insurance company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 6% per annum from the date of filing of the claim petition till amount is deposited. The amount already deposited be deducted from the amount to be deposited. 10. Accordingly, the appeal of claimants is partly allowed and appeal of the Insurance Company is dismissed. 11. 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., reported in 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. 12. 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. 12. The record and proceedings be sent back to the Tribunal for disbursement.