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2022 DIGILAW 796 (ALL)

Mushtaq Ahmad v. Riyaz Khan

2022-05-18

AJAI TYAGI, KAUSHAL JAYENDRA THAKER

body2022
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Heard Sri Nigamendra Shukla, learned counsel for the appellants and Sri Amitanshu Gour, learned Advocate, appearing for Sri S.B.L. Gour, learned counsel for the respondent. 2. This appeal, at the behest of the claimants, challenges the judgment and award dated 20.2.2008 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Bulandshahr (hereinafter referred to as 'Tribunal') in Motor Accident Claim Case No.246 of 1999 awarding a sum of Rs.2,90,000/- as compensation with interest at the rate of 6%. 3. It is an admitted position of fact that the accident occurred on 28.5.1999. The claim petition was filed under Sections 163 A, 166 & 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act'). The evidence was led and only in the year 2007 the claimants deleted Section 166 and 140 of the Act which was much after the evidence was recorded. Only heading of section was corrected and nothing was corrected in the body of the claim petition, namely, income of the deceased was Rs.6,000/-per month and the monetary loss claimed was Rs.20,000/- which was beyond the scope of Section 163A of the Act. After the pleadings were over, the evidence was closed and the matter was fixed for arguments, the Tribunal recast the issues and framed five issues. One of them was regarding negligence. Had the Tribunal considered the matter only under Section 163A, there was no question of deciding the issue of negligence. The Tribunal has considered the matter as if it was a matter under Section 166 of the Act and, therefore, once the Tribunal decides the matter under Section 166 and not under Section 163 A of the Act by deciding issue of negligence, it was under an obligation to decide the future loss of income. 4. The accident took place on 28.5.1999. The deceased-Isttyak was 25 years of age at the time of accident. The Tribunal considered his income to be Rs.2400/-per month, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 15 on the basis of age of parents and has granted Rs.2,000/- under non pecuniary damages. 5. It is submitted by learned counsel for the appellants that the deceased was earning Rs.3300/-per month and the Tribunal has erred in not considering the same. 5. It is submitted by learned counsel for the appellants that the deceased was earning Rs.3300/-per month and the Tribunal has erred in not considering the same. It is further submitted that the Tribunal has not granted any amount under the head of future loss of income. It is further submitted that the Tribunal has granted multiplier of 15 considering the age of the parents of the deceased which is bad and it should be 18 as the deceased was in the age bracket of 21 to 25. 6. It is lastly submitted by learned counsel for the appellants that the amount awarded under non-pecuniary heads and interest, awarded by the Tribunal or on the lower side and are required to be enhanced. 7. As against this, learned counsel for the respondent has contended that the income which has been considered by the Tribunal is just and proper as there was no income proof. It is further submitted by learned counsel for the respondent that non grant of future loss of income and multiplier of 15 granted by the Tribunal are just and proper. is just and proper. It is also contended by learned counsel for the respondent that the deceased being bachelor, the deduction towards personal expenses of the deceased would be 1/2. 8. Having heard learned counsel for the parties, income of the deceased, even in the year of accident can be considered to be at least Rs.3000/-per month looking the fact that he was mason by profession. As the petition was under Section 163 A of Motor Vehicles Act, 1988, future prospects cannot be given was the submission of learned counsel for respondent but, in this case, the Tribunal has considered the claim petition as one under Section 166 of Motor Vehicles Act as originally filed. This is clear from the order passed in 2008 when after evidence was led the Tribunal recast the issues and decided the issue of negligence which it could not do so if it had considered the claim under Section 163A of M.V. Act as negligence cannot be decided or considered in a claim under Section 163 A. Therefore, once the Tribunal has decided the matter under Section 166 by deciding issue of negligence, it was under an obligation to decide the future loss of income which has not done. Hence, we grant addition of 40% towards future loss of income of the deceased. The deduction towards personal expenses of the deceased would be 1/2 as the deceased was bachelor. Multiplier of 18 should be granted as the deceased was in the age bracket of 21-25. Further, Rs.40,000/- each to the parents be granted in view of the decision in Kurvan Ansari Alias Kurvan Ali Vs. Shyam Kishore Murmu, 2021 (0) AIJEL-SC 67995. 9. Hence, the total compensation payable to the appellants is computed herein below : i. Income Rs.3,000/-per month (Rs.36,000 per year) ii. Percentage towards future prospects 40% namely 14,400/- iii. Total income Rs.36,000 + Rs.14,400 = 50,400/- iv. Income after deduction of 1/2 towards personal expenses Rs.25,200/- v. Multiplier applicable 18 vi. Loss of dependency Rs.25,200 x 18 = Rs.4,53,600/- vii. Amount under non pecuniary heads Rs.40,000 + Rs.40,000/- = Rs.80,000/- viii. Total compensation Rs.5,33,600/- 10. 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." 11. 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 as directed above. The amount already deposited be deducted from the amount to be deposited. Record and proceedings be sent back to the Tribunal forthwith. 12. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. The amount already deposited be deducted from the amount to be deposited. Record and proceedings be sent back to the Tribunal forthwith. 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. 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. The said decision has also been reiterated by High Court Gujarat in R/Special Civil Application No.4800 of 2021 (The Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS) decided on 5.4.2022. 14. 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. 15. 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. 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 long period has elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R. 16. This Court is thankful to both the counsels for getting this matter decided.