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2022 DIGILAW 403 (ALL)

Saroj Sachan v. Bharti Axa General Insurance Co.

2022-03-21

AJAI TYAGI, KAUSHAL JAYENDRA THAKER

body2022
JUDGMENT : 1. Heard Sri Shreesh Srivastava, learned counsel for the appellant, Sri Pawan Kumar Singh, learned counsel for the respondent and perused the record. 2. This appeal, at the behest of the claimants, challenges the judgment and award dated 13.8.2018 passed by the Motor Accident Claims Tribunal/VIIIth Addl. District Judge, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P No.700 of 2016 awarding a sum of Rs.42,78,200/- as compensation with interest at the rate of 7%. 3. The accident is not in dispute. The issue of negligence decided by the Tribunal is also not in dispute. The only issue to be decided is the quantum of compensation awarded. 4. The accident took place in the year 2016. The deceased was 48 years of age and was Senior Engineer in Hilman Capital Finance Ltd. The Tribunal has considered the income of the deceased to be Rs.34,000/-per month, added 30% towards future loss of income, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 12 and awarded Rs.35,000/- towards non-pecuniary damages. That is how the Tribunal has calculated the compensation to be Rs.42,78,200/- against Rs.1,62,00,000/- as claimed by the claimants-appellants which has aggrieved them. 5. It is submitted by learned counsel for the appellants that the income of the deceased was Rs.62,000/-(rounded figure) but the Tribunal has wrongly considered his income to be Rs.34,000/- only. It is submitted that the learned Tribunal has brushed aside the Income Tax Returns and the appointment and considered only basic as according to the Tribunal the deceased was in service only for two month and was a probationer. Learned counsel for the appellant has relied on the decisions in Sangita Arya & Ors. Vs. Oriental Insurance Co. Ltd. & Ors., 2020 LawSuit (SC) 432, Rukmani Jethani and Others Vs. Gopal Singh and others, 2021 (4) T.A.C. 23 (SC), Vimal Kanwar and Others Vs. Kishore Dan and others, 2013 (3) T.A.C. 6 (S.C.) to buttress his submission that the finding of the Tribunal as far as income is concerned is bad. The Tribunal has calculated the income of the deceased to be Rs.34,000/- on the basis that it was the basic salary. This could not have been done is the submission of learned counsel for the appellants. 6. The Tribunal has calculated the income of the deceased to be Rs.34,000/- on the basis that it was the basic salary. This could not have been done is the submission of learned counsel for the appellants. 6. Learned counsel for the appellants has further submitted that the deceased was survived by his widow, one son and parents and, therefore, the deduction towards personal expenses would be 1/4th and not 1/3rd as done by the Tribunal. 7. It is also submitted by learned counsel for the appellant that the amount awarded under non pecuniary damages is on the lower side and is required to be enhanced in view of the decision in National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093 and the later decision of the Apex Court. 8. Learned counsel for the appellant has lastly submitted that the interest awarded by Tribunal is on the lower side and it should be as per the repo rate prevailing in those days. 9. As against this, learned counsel for respondent-Insurance Company has contended that the income which is asked cannot be granted and at least income tax be deducted from the income. It is further submitted by Sri Pawan Kumar Singh, learned counsel for the respondent that deduction towards personal expenses is just and proper and does not call for interference of this Court. It is also submitted by learned counsel for the respondent that the amount awarded under non pecuniary heads and interest granted by the Tribunal are just and proper and does not call for interference of this Court. 10. Having heard learned counsel for the parties and considering the Salary Slip, Form 16 and the decisions cited by the learned counsel for the appellants, we hold that had the deceased been alive, he would have been earning Rs.62,000/-per month. The deceased was Senior Engineer in Hilman Capital Finance Ltd. His income shown in the pay slip for May 2016 was Rs.60,050/- Form 16AA for the period 1st April 2016 to 9th June 2016, show his income to be Rs.1,47,923/-. However, we are in agreement with Sri Pawan Kumar Singh, learned counsel for the respondent that from the income, at least Income Tax should be deducted and, therefore, we consider the income of the deceased to be Rs.50,000/-per month. However, we are in agreement with Sri Pawan Kumar Singh, learned counsel for the respondent that from the income, at least Income Tax should be deducted and, therefore, we consider the income of the deceased to be Rs.50,000/-per month. Addition of 30% toward future loss of income and multiplier of 12 granted by the Tribunal are just and proper, hence, are not disturbed. As far as deduction towards personal expenses of the deceased is concerned, we are in agreement with Sri Shreesh Srivastava, learned counsel for the appellants that it should be 1/4th reason being, parent of the deceased who were in their 90s has passed away during this interregnum period and unless proved otherwise, they are dependent on their son. Therefore, the deduction of 1/4th would be just and proper. 11. As far as amount under non-pecuniary heads is concerned, the appellants would be entitled to Rs.70,000/- plus 10% rise in every three years in view of the decision of the Apex Court in Pranay Sethi (Supra) and, therefore, we round up the figure to Rs.1,00,000/- under this head. 12. Hence, the total compensation payable to the appellants is computed herein below : i. Monthly Income Rs.50,000/- ii. Percentage towards future prospects 30% namely Rs.15,000/- iii. Total income Rs.50,000 +15,000 = Rs.65,000/- iv. Income after deduction of 1/4th towards personal expenses Rs.48,750/- v. Annual income Rs.48,750 x 12 = Rs.5,85,000/- vi. Multiplier applicable 12 vii. Loss of dependency Rs.5,85,000 x 12 = Rs.70,20,000/- viii. Amount under non pecuniary heads Rs.1,00,000/- ix. Total compensation Rs.71,20,000/- 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 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. No other grounds are urged orally when the matter was heard. 15. 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. 16. 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 be passed by Tribunal. 17. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri 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. 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. 18. 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 judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case. 19. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R. 20. This Court is thankful to both the counsels for getting this matter decided.