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2022 DIGILAW 635 (ALL)

Shabnam Begum v. Surendra Kumar

2022-04-27

AJIT SINGH, KAUSHAL JAYENDRA THAKER

body2022
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Heard Sri Ram Ashish Pandey, learned counsel for the appellants, Sri Shresth Pratap Singh, learned counsel appearing along with Ms. Archana Singh, learned counsel for the respondent-Insurance Company and perused the judgment and order impugned. 2. This appeal, at the behest of the claimants, challenges the judgment and award dated 27.02.2017 and decree dated 03.03.2017 passed by the learned Additional District Judge, Court No. 8/Motor Accident Claim Tribunal, Etawah (hereinafter referred to as 'Tribunal') in M.A.C.P. No.765 of 2015 (Smt. Shabnam Begum And Others Vs. Surendra Kumar And Others), under Section 140/166 of the Motor Vehicle Act, 1988 (referred as Act), awarding a sum of Rs.4,15,000/-with 7% interest per annum to the claimants. 3. It is not in dispute that the deceased was 34 years of age. He was a L.I.C. Agent. The Tribunal has considered income of deceased to be Rs.3,000/-per month by disbelieving the documentary evidence produced by the claimants and considered income of labourer. It is submitted by Sri Ram Ashish Pandey, learned counsel for the appellants that the income of the deceased should have been considered to be Rs.30,000/-per month; as the deceased was below 40 years, 40% of the income should be added as future loss of income. It is further submitted that the deceased was survived by his widow and three minor children, 1/4th amouny towards personal expenses of the deceased should be deducted. It is also submitted that the interest should be granted at the rate of 7.5% and Rs.70,000/-should be granted under the head of nonpecuniary damages. 4. It is submitted that reliance by Tribunal on the judgment of Laxmi Devi Vs. Mohd. Tavar 2008 (2) TAC SC has been applied by the Tribunal for considering the income is bad. It is submitted that the judgment in the case of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 has been in vogue when the Tribunal decided this matter on 27.02.2017. The Uttar Pradesh Motor Vehicle Rules 1998 (Amended in 2011) was also in vogue despite that the Tribunal has not considered and has not granted any amount under the head of future loss of income. It is submitted that the Tribunal has not followed the judgment in the case of General Manager Kerla State Road Transport Corporation Trivandrum Vs. Susamma Thomas and others 1994 (2) SCC 176 followed by U.P.S.R.T.C. Vs. It is submitted that the Tribunal has not followed the judgment in the case of General Manager Kerla State Road Transport Corporation Trivandrum Vs. Susamma Thomas and others 1994 (2) SCC 176 followed by U.P.S.R.T.C. Vs. Trilok Chand, 1996 T.A.C. (2) 176 which has followed the judgment in the case of Gobald Motor Service Ltd. & Vs. R. M. K. Veluswami & Others AIR 1962 SC 1 , hence, all the three judgments enjoined duty on the Tribunal to decide what is known as just compensation. 5. The learned Tribunal very unfortunately has not even considered that even in the year of accident the minimum wages admissible for a house wife in the year 2012 were Rs.5,000/-per month. For a child of 12 years in 2012 also the Apex Court has granted a sum of Rs.5/- lacs. In the case of R.K. Malik Vs. Kiran Pal, 2009 14 SCC 1 . The learned Tribunal in its over zeal to grant less amount has rendered the award absolutely venerable as the documentary evidence even if was not proved, the Tribunal's in the state should take a holistic view instead of relying upon the judgment of Laxmi Devi (supra) which is of the year 2008. The Tribunal very strangely relies on the xerox copies of school certificate for fixing age but refuses to rely on the Income Tax Return. We do not find any overwriting as mentioned by the Tribunal in its award, it was nobody's case that the documents produced were not genuine. Such a reasoning of the Tribunal shows that either the Tribunal was stayed away with other factor which are not germane to such a litigation. The Tribunal even lost site of the fact that the deceased survived for some hours and was hospitalized. The deceased was a holder of Pan Card. The L.I.C. Agency Code was also there. He was a Income Tax payer and not believing Form 16-A of Income Tax Return is absolutely perverse finding. We do not find any overwriting in the document 16-A filed by the claimants along with the document of Divisional Office Agra, L.I.C. can this all said to be not showing that the deceased was a person who was earning and was a respectable tax payer of the country. The bills given by Manoj Kumar Gupta and the receipts by agricultural Mandi Samiti also belies the finding of the Tribunal. The bills given by Manoj Kumar Gupta and the receipts by agricultural Mandi Samiti also belies the finding of the Tribunal. The identity card for Commission Agent also and registration certificate given by K.B.C.L. India Ltd. will not permit us to concur with the learned Tribunal, rather, we deprecate this practice and as there was also further document of Sai Prasad's property in the name of the deceased way back in the year which comprises of bunch of documents which goes to show that he was running a flour mill, it is also orally opined by his wife (widow). We do not find any overwriting in the Income Tax Return produced as document 26(G) and though, the document is not admitted by the Insurance Company. The document shows that he was not a labourer but one of tax payer of this country. The Income Tax Department has also given the acknowledgement of tax deduction at source. The Tribunal under Section 169 of Act could have taken upon itself to see that the documents are proved. The Insurance Company could have also examine as an expert just to brush aside the the same cannot be accepted. The claimants have tried to summon the witnesses but the Tribunal in its over zeal has not considered the same. The written arguments of Insurance Company also did not stayed that the said documents produced are fake. The only contention is that they have not been proved. The finding of fact that the deceased was getting Rs.5,000/- as rent is also held against the claimants. 6. The documentary evidence is there on record which shows that the deceased was getting commission of about Rs.85,000/-per annum from L.I.C. which is also on record which could not be disputed by Ms. Archna Singh, learned counsel for the Insurance Company. The claimants have produced documents to show that the deceased was having his own business, bill are there which are no doubt, xerox copies not proved to be taken though they are secondary evidence. The Tribunal should consider the same. The decision of Tribunal is perverse for discarding all evidence. The judgment of Laxmi Devi (supra) has applicable to cases of labaur when the men or women does not have any vocation or income. The Tribunal should consider the same. The decision of Tribunal is perverse for discarding all evidence. The judgment of Laxmi Devi (supra) has applicable to cases of labaur when the men or women does not have any vocation or income. The recent judgment in the case of Smt. Meena Pawaia & others Vs Ashraf Ali and others 2001 0 Supreme (SC) 694 would also enure for the benefit of the appellants. We, therefore, cannot concur with the view taken by the Tribunal that minimum of the income i.e. Rs.3,000/- should be considered. 7. The Income Tax Returns are the mirror of the income of the person discarding the same is against the principle of law enunciated by the Apex Court. In F.A.F.O. No. 2019 of 2021 (Akhilesh Kumar Anand Vs. Rahul Mishra and Another) decided on 18.4.2022, the Division Bench of this Court has held as follows:- "11. The Apex court decision in Anita Sharma Vs. New India Assurance Company Ltd, 2021 (1) SCC 171 and Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186 , has held that strict proof of all facts is not necessary to decide the motor accident claim petition. The Tribunal should take the holistic view of the matter and the claimant has to establish his/her case on the touchstone of preponderance of probability. 12. The Division Bench of Madhya Pradesh High Court in Reliance General Insurance Co. Ltd. Vs. Subbulakhmi and others passed in CMA No. 1482 of 2017 has also expressed the same view with regard to the standard of proof. 13. In Bimla Devi and others Vs. Himanchal Road Transport Corporation and others 2009 (2013) SCC 530, also the Apex Court held that the claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. 14. Learned Tribunal has discarded the documentary evidence, filed by the appellant with regard to the salary of the deceased. Learned Tribunal could have invoked the powers under Section 169 of the Motor Vehicle Act, 1988, which gives claims Tribunal all the powers of Civil Courts for the purpose of taking evidence, and enforcing the attendance of the witnesses and compel the discovery and proof of documents and material objects. Learned Tribunal could have invoked the powers under Section 169 of the Motor Vehicle Act, 1988, which gives claims Tribunal all the powers of Civil Courts for the purpose of taking evidence, and enforcing the attendance of the witnesses and compel the discovery and proof of documents and material objects. If the learned Tribunal wanted to get the salary certificate and payment register to be proved, it could have suo moto summoned the concerned employee of the school with original record because it is the duty of the Tribunal to award 'just compensation'." 8. Section 169 in The Motor Vehicles Act, 1988- "169. Procedure and powers of Claims Tribunals.— (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry." 9. The age of the deceased as decided by the Tribunal is maintained. The multiplier for the age 34 years would be 16 and not 17. For non-pecuniary damages, we grant Rs.70,000/-and Rs.50,000/-each to the three minor child. The deduction of 1/4th made by the Tribunal is confirmed. 10. This takes this Court to the issue of compensation. The income of the deceased in the year of accident and looking to his profession namely that of L.I.C. Agent can be considered to be Rs.30,000/-per month to which as he was below 40 years, 40% as future loss of income requires to be added in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. 11. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. 11. Hence, the total 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.20,000/- per month (ii) Percentage towards future prospects 40% namely Rs.8,000/- (iii) Total income Rs. 20,000 + 8,000 = Rs. 28,000/- (iv) Income after deduction of 1/4 th Rs. 21,000/- (v) Annual income Rs.21,000 x 12 = Rs. 2,52,000/- (vi) Multiplier applicable 16 (vii) Loss of dependency Rs.2,52,000 x 16 = Rs.40,32,000/- (viii) Amount under filial consortium and other non pecuniary heads Rs.70,000/- + Rs.50,000/- to the each 3 minor children (ix) Total compensation 42,52,000/- 12. 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." 13. No other grounds are urged orally when the matter was heard. 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 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. 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. The amount already deposited be deducted from the amount to be deposited. 15. 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. 16. Record be sent back to the tribunal. 17. This Court is thankful to both the counsels for getting this matter decided.