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2022 DIGILAW 224 (ALL)

Sarika Gupta v. New India Insurance Co. Ltd.

2022-02-21

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : 1. Heard learned counsel for the appellants; Shri Nagendra Kumar Srivastava, learned counsel for the respondents; and perused the record. 2. This appeal, at the behest of the claimants, challenges the judgment & order dated 28.1.2008 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Mathura (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.437 of 2005 awarding a sum of Rs.3,67,000/- with interest at the rate of 6% as compensation. 3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondent concerned has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded. 4. It is submitted by learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income of the deceased which is required to be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that amount under non-pecuniary heads granted and the interest awarded by the Tribunal are on the lower side and require enhancement. Learned counsel for appellant submitted that deceased was Business partner of M/s Sri Devi Pustak Bhawan, Agra by profession and was getting Rs.1,37,087/-per annum as per the ITR of the year 2004-05. It is also submitted that as the deceased was survived by his widow and three minor children and hence the deduction towards personal expenses of the deceased as 1/4 is not in dispute. The multiplier has to be as per age of deceased should have been granted 15 is also not in dispute. 5. Learned counsel for the respondents, has vehemently objected the contentions raised by the learned counsel for the appellants and has submitted that the compensation awarded by the Tribunal is just and proper and does not call for any enhancement and it is also contended that the multiplier has to be as per age of deceased should have been granted 14 in place of 15. 6. Having heard learned counsel for the parties and considered the factual data, this Court found that the accident occurred on 24.10.2005 causing death of Anil Kumar Gupta who was 42 years of age and left behind him, widow and three minor children. 6. Having heard learned counsel for the parties and considered the factual data, this Court found that the accident occurred on 24.10.2005 causing death of Anil Kumar Gupta who was 42 years of age and left behind him, widow and three minor children. The Tribunal has assessed the income of the deceased to be Rs.2000/-per month. The deceased was Business partner of M/s Sri Devi Pustak Bhawan, Agra by profession, the tribunal has committed grave error in not considering that the appellants had proved the income of the deceased by proper evidence. The witness was also examined so as to bring whom the contention that the deceased was a Business partner of M/s Sri Devi Pustak Bhawan, Agra by profession. The evidence of the witnesses has not been accepted which is also against the Judgment in the case of the Apex Court in Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186 , and, therefore, we are obliged to hold that the deceased died due to the accidental injuries. 7. The judgment of the Apex Court in Anita Sharma v. New India Assurance Co. Ltd. (2021), 1 SCC 171 would also apply to the facts of this case. 8. As far as beneficial difference of limitation is concerned, the strict rules of civil procedure and evidence act are no required to adhered to. 9. In our case, prima facie it was proved that his income was Rs.11,424/-as ITR of the year 2004-05. In view of the judgment of Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830 except income Tax no amount could have been deducted by the tribunal in the year of question, i.e., 2005. The tribunal has erred itself in not considering the income of the deceased and has deducted amount which it could not deduct holding that they were personal benefits to the deceased. We cannot concur with the tribunal as far as holding that the deceased was earning Rs.11,424/- per month. The income has to be considered to be Rs.11,424/-per month, would be the income of the deceased. The deceased was age bracket of 40 to 50 years as Business partner, 25% of the income will have to be added as future prospects in view of the decision of the Apex Court in National Insurance Company Limited Vs. The income has to be considered to be Rs.11,424/-per month, would be the income of the deceased. The deceased was age bracket of 40 to 50 years as Business partner, 25% of the income will have to be added as future prospects in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. The multiplier of 14 granted is just and proper and not 15 as per the judgment in Pranay Sethi (supra) where awarded sum of Rs.70,000+30,000 interest, we round up the same figure Rs.1,00,000/-. 10. In this backdrop were evaluate the income in view of the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and, the recalculation of compensation would be as follows: i. Income Rs.11,424/- p.m. ii. Percentage towards future prospects 25% namely Rs.2856/- iii. Total income Rs. 11,424 + 2856 = Rs.14,280/- iv. Income after deduction of ¼ Rs.10710/- v. Annual income Rs.10,710 x 12 = Rs.1,28,520/- vi. Multiplier applicable 14 (as the deceased was in the age bracket of 41-45 years) vii. Loss of dependency Rs.1,28,520 x 14 = Rs.17,99,280/- viii. Amount under non pecuniary heads (Rs.70,000+30,000) = 1,00,000/- ix. Total compensation (vii + viii) Rs.18,99,280/-. 11. 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 applicants/claimants are neither illiterate or rustic villagers. 12. 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 applicants/claimants are neither illiterate or rustic villagers. 12. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s 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. 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. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. 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 along with additional 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. 15. We are thankful to learned counsels for the parties for ably assisted the Court. 16. Record be sent back to court below forthwith, if any.