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2022 DIGILAW 659 (ALL)

Pista Devi v. New India Insurance Co. Ltd.

2022-04-28

AJIT SINGH, KAUSHAL JAYENDRA THAKER

body2022
JUDGMENT : 1. Heard Sri B.P. Verma, learned counsel for the claimant-appellants and Sri Arvind Kumar, learned counsel appearing for the New India Insurance Company. 2. This appeal, at the behest of the claimants, challenges the judgment and award dated 07.08.2014 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No.02, Mathura (hereinafter referred to as 'Tribunal') in M.A.C.P No. 172 of 2013 (Smt. Pista Devi and others Vs. The New India Insurance Company Ltd. and others.) awarding a sum of Rs.52,51,911/- as compensation with interest at the rate of 7%. 3. The accident having taken place at the time of noon at about 1:45 P.M. on 04.03.2013 is not in dispute. The vehicle of the opposite party No. 2 Bansal Transport Company, Nayee Mandi, Bharatpur being involved in the accident is not in dispute. The issue of negligence decided by the Tribunal has attained finality as the opposite party No. 2, the owner of the offending vehicle, has chosen not to challenge the award of the Tribunal. Hence, the only issue to be decided is the quantum of compensation awarded. 4. The accident took place in the year 2013. The deceased was about 52 years of age and was working on the post of Charge-man (F) in the Marketing Division of Indian Oil Corporation, Mathura Refinery, Mathura and Rs.79,876/-per month was his salary. The learned Tribunal has considered the income of the deceased to be Rs.61500/-per month, deducted 1/4th towards personal expenses of the deceased as he was married person and in view of the prevailing judgements, granted multiplier of 9 taking into consideration the relevant factor of age of the deceased and his dependents. The Tribunal has granted Rs.5,000/- towards funeral expenses, however Rs.15,000/- was claimed in the claim petition. 5. It is submitted by Shri Verma, learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income; the multiplier granted by the Tribunal is not in consonance with the decisions of the Apex Court. According to him, the multiplier of 11 ought to have been granted by the learned Tribunal as per the decision of the Apex Court in Sarla Verma and others Vs. According to him, the multiplier of 11 ought to have been granted by the learned Tribunal as per the decision of the Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC), but unfortunately in a very strange and casual manner, the learned tribunal has lost sight of this important aspect of the matter while passing the award impugned in this appeal for enhancement of the compensation amount awarded to the dependents of the deceased under different heads. He further submits that the multiplier cannot be as per the whims and fancies of the learned Tribunal just because the deceased was a married person and the loss of non pecuniary damages to the family has to be considered and awarded as per the settled legal position more particularly the law enunciated by the Apex Court in the case of Syed Basheer Ahamed & Ors. vs. Mohd. Jameel & Anr., 2009 ACJ 690 (SC), which lays down the law in respect to determination and assessment of the dependency of the claimants on the deceased persons. The question as to what factors should be kept in view for calculating pecuniary loss to a dependent came up for consideration before a three-Judge Bench of this Court in Gobald Motor Service Ltd. & Anr. Vs. R.M.K. Veluswami and other [ 1962 (1) SCR 929 ], with reference to a case under the Fatal Accidents Act, 1855, wherein, K. Subba Rao, J. (as His Lordship then was) speaking for the Bench observed thus : "In calculating the pecuniary loss to the dependants many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the dependants may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly, stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained." 6. Shri Verma submits that the concept of multiplier of 9' adopted by the learned Tribunal to determine the compensation amount payable to the claimants is not as per the ratio decendi of the said judgment and it has to be 11 as per the law laid down by the Apex Court. It is further submitted that the Tribunal has granted only a sum of Rs.5,000/- towards filial consortium which should be Rs.40,000/-. 7. Thereafter, the learned counsel Shri D.P. Verma for the appellants further submits that the loss of future prospects calculated by the learned tribunal is also towards lower side. It cannot be decided as per the thumb law of Sarla Verma (supra), it should be decided as per the facts and circumstances of the case particularly the job, profession as well as position in a office or the status of the deceased should be taken into account. Here, in this case as the deceased was a charge-man (F) in the Indian Oil Corporation, it is submitted that the Tribunal has again committed an error in granting only Rs.15,000/- under the head of non pecuniary damages on the wrong interpretation of the U.P. Motor Vehicle Rules. It is also submitted by Shri Verma that even if this Court holds that the judgment of Sarla Verma (supra) would apply and squarely cover the instant case, the learned Tribunal ought not to have applied it in piecemeal. In the alternative he submits that if this Court takes a view that the decision pronounced in the case of National Insurance Co. Limited Vs. Pranay Sethi and others, 2017 0 SC 1050 would apply, it has been clarified by the Hon'ble Supreme Court in the case of New India Assurance Company Ltd. Vs. Urmila Shukla and others reported in 2021 ACJ page 2081 and therefore at least 20% should be granted as future loss and it should be enhanced looking to the evidence on record. 8. Urmila Shukla and others reported in 2021 ACJ page 2081 and therefore at least 20% should be granted as future loss and it should be enhanced looking to the evidence on record. 8. In response to the submission made by the learned counsel for the appellants, the learned counsel Shri Arvind Verma appearing for the Insurance Company submits that in view of the judgment of this Hon'ble High Court he has a right to raise oral cross objections and as far as the future prospects is concerned, it should be in consonance with the judgment of the Sarla Verma (supra) and Pranay Sethi (supra) and therefore the 20 per cent could not have been granted as future loss. It is further submitted that the deceased is surviving by his wife and four children, two of them are major and therefore the deduction of 1/4th amount assessed to be deducted from the monthly income of the deceased considering it as his personal expenses should also be either one half or one third. Further argument is that the reasoning given by the learned tribunal for adopting the lower multiplier of 9' is just and proper. 9. This Court finds that according to the learned counsel for Insurance Company the rate of interest should not be 10 per cent as demanded by the learned counsel for the appellants in the grounds of appeal. Having heard the learned counsel for the parties and have gone through the facts and circumstances of this case and the impugned award passed by the learned Tribunal, the only area which we would like to interfere with is multiplier and non pecuniary damages and interest. 10. The learned counsel Shri Verma appearing for the appellants submits that he would be satisfied if the multiplier is applied of 11 in place of 9, future loss to the dependents is awarded at the rate of 20% of the income of the deceased and compensation for non pecuniary damages awarded Rs.70,000/- and towards the compensation for loss of love and affection is awarded Rs.30,000/-. 11. No other grounds are urged orally when the matter was heard. 12. Hence, the total compensation payable to the appellants is computed herein below:- i. Monthly Income Rs.61,500/- ii. Percentage towards future prospects 20% i.e. Rs.12,300/- iii. Less personal expenses of the deceased Rs.1,93,959 (1/4th) iv. 11. No other grounds are urged orally when the matter was heard. 12. Hence, the total compensation payable to the appellants is computed herein below:- i. Monthly Income Rs.61,500/- ii. Percentage towards future prospects 20% i.e. Rs.12,300/- iii. Less personal expenses of the deceased Rs.1,93,959 (1/4th) iv. Monthly loss of dependency Rs.48,489/- v. Annual loss of dependency Rs.5,81,879/-(after tax deduction of Rs.1,10,482/-) vi. Multiplier applicable 11 vii. Total Loss of dependency Rs.52,36,911/- viii. Compensation for loss of non pecuniary damages Rs.1,00,000/- ix. Total compensation Rs.52,36,911/-+ Rs.1,00,000/-(under head of non pecuniary damages)= Rs.53,36,911 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 award 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. Recently, the Gujarat High Court in case titled the Oriental Insurance Company Limited Vs. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No. 4800 of 2021 decided on 5.4.2022 held that interest awarded by the Tribunal under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act, 1961. 16. 15. Recently, the Gujarat High Court in case titled the Oriental Insurance Company Limited Vs. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No. 4800 of 2021 decided on 5.4.2022 held that interest awarded by the Tribunal under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act, 1961. 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 20 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R. 17. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagauri 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. 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 not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case. 19. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. The same is to be applied looking to the facts of each case. 19. 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. 20. With the aforesaid observations the appeal is allowed partly. 21. This Court is thankful to the counsel for both sides for getting this matter decided.