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2022 DIGILAW 412 (ALL)

Shaily @ Sarla v. Parmeshwari Dayal

2022-03-22

AJAI TYAGI, KAUSHAL JAYENDRA THAKER

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JUDGMENT : 1. Heard Sri Naman Rajvanshi, learned counsel for the appellant and Sri Krishna Shanker Chaudhary, learned counsel for the respondent-Insurance Company. 2. This appeal, at the behest of the claimants, challenges the award dated 19.11.2015 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.8, Ghaziabad (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 474 of 2009 granting sum of Rs.18,06,750/- with 7% simple interest. 3. The learned Counsel for appellants has submitted that the Tribunal has erred in not following the mandate of judicial precedents and Rule 220 of U.P. Motor Vehicle Rules while computing the compensation admissible to the legal heirs of deceased who comprise of widow, minor son of 11 years and daughter of 9 years. The deceased was 36 years of age and was serving as Deputy Manager (Purchase) at M/s. D.M.C.L. Sugar Factory, Loni. The income of deceased was Rs.36,653/- per month. It is further submitted that the Tribunal has committed error in considering the income of deceased to be Rs.14,806/-. The Tribunal has not considered for granting future loss of income. The learned Counsel further submits that deduction for personal expenses and multiplier need not be disturbed. The learned counsel submits that the amount granted for nonpecuniary damages is on lower side and needs recalculation. 4. It is submitted that the deceased was working as Deputy Manager (Purchase) at D.S.C.L., Sugar Factory, Loni, from where he was getting Rs.36,653/- per month, but the Motor Accident Claims Tribunal by taking hyper technical view only considered the basic salary to compute the compensation. 5. Sri K.S. Chaudhary appearing for the Insurance company has heavily relied on the decision of the Apex Court in the case of Vimal Kanwar and others Vs. Kishore Dan and others, 2013 (3) T.A.C. 6 (S.C.) so as to contend that the income of the deceased cannot be Rs.36,563/-. 6. Learned Tribunal with profound respect has considered the income of the deceased to be Rs.14,806/- per month. The deceased was a person who was well educated and was Deputy Manager. The reasoning given for deductions are not germane. The judgment of Vimal Kanwar (supra) is relied on by both the Counsels. The amount of provident fund and insurance claim cannot be deducted as they have no co-relation. Except superannuation head, there cannot be any deduction under Section 168 of the Motor Vehicles Act. The reasoning given for deductions are not germane. The judgment of Vimal Kanwar (supra) is relied on by both the Counsels. The amount of provident fund and insurance claim cannot be deducted as they have no co-relation. Except superannuation head, there cannot be any deduction under Section 168 of the Motor Vehicles Act. Hence, we are holding that basic salary i.e. 15,275/- + special allowances Rs.1500 + HRA Rs.7638/- + Education allowance Rs.800/- + conveyance allowance Rs.2055/- + PF Rs.1833/- and Gratuity Rs.734/- in total Rs.29835/- (Rs.30,000/- rounded figure) would be admissible. The Tribunal has fallen in error in not considering the income of Rs.30,000/- per month. We are unable to accept the submission of learned counsel for the respondent that income should be considered at Rs.14,806/-. The income of the deceased would have been non-taxable as Rs.30,300/- in the year of accident he would be entitled to all the deductions and, therefore, there was no TDS deducted by the employer also and nothing has been brought on record that he was a tax payee. Hence, that amount cannot be deducted. Deduction of certain allowances namely executive allowance, books and periodicals, medical expenses, LTA, Superannuation, Furniture (Hard), Furniture (Soft) is not in dispute. 7. The Tribunal has not granted any amount towards future loss of income. The Tribunal has not assigned any reason as to why the judgment of Sarla Verma (supra) will not be applicable. Hence, deceased being salaried person and was below the age of 40 years, 50% future prospects will be added in view of the decision in Pranay Sethi (Supra). We are fortified in our view by the decision of the Apex Court in General Manager, Kerala S.R.T.C. vs. Susamma Thomas 1994 AIR 1631 and Rule 220 of U.P. Motor Vehicle Rules, 1998. 8. Further, the deceased was survived by a minor son and a minor daughter, hence, deduction of 1/3 and multiplier of 15 granted by the Tribunal is maintained. The claimants would be entitled to Rs.1,00,000/- under non-pecuniary damages and Rs.50,000/- each to the minor children who lost their father is granted for loss love and affection. 9. Hence, the compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below : i. Income Rs.30,000/- ii. Percentage towards future prospects 50% namely Rs.15,000/- iii. Total income Rs.30,000 + 15,000 = Rs.45,000/- iv. 9. Hence, the compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below : i. Income Rs.30,000/- ii. Percentage towards future prospects 50% namely Rs.15,000/- iii. Total income Rs.30,000 + 15,000 = Rs.45,000/- iv. Income after deduction of 1/3rd Rs.30,000/- v. Annual income Rs.30,000 x 12 = Rs.3,60,000/- vi. Multiplier applicable 15 vii. Loss of dependency Rs.3,60,000 x 15 = Rs.54,00,000/- viii. Amount under non pecuniary heads Rs.1,00,000/- + 50,000 + 50,000/- = Rs.2,00,000/- ix. Total compensation Rs.56,00,000/- 10. As far as issue of rate of interest is concerned, the interest 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." 11. No other grounds are urged orally when the matter was heard. 12. 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. 13. 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. 13. 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. Hari Singh and another) while disbursing the amount. 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. The respondent-Insurance Company shall deposit the amount with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited. 15. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. 16. 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 12 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R. 17. This Court is thankful to both the counsels to see that this very old matter is disposed of.