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2023 DIGILAW 1223 (ALL)

Raj Kumar v. Jugal Kishore Mishra

2023-05-02

K.J.THAKER

body2023
JUDGMENT Dr. Kaushal Jayendra Thaker, J. By way of this appeal, the appellant has challenged the judgment and order dated 22.1.1998 passed by Motor Accident Claims Tribunal / Additional District Judge IV, Banda (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 267/70 of 1994 (Smt. Kumari and others v. Jugal Kishore Mishra and others) awarding a sum of Rs.1,15,200/- as compensation to the claimants/appellants with interest at the rate of 10% per annum from the date of filing the claim petition. 2. Heard earned counsel for the appellants and learned counsel for the respondents. Perused the record and judgment. 3. The brief facts of the case are that claimants-appellants filed a Motor Accident Claim Petition before the Tribunal for claiming the compensation under Motor Vehicles Act, 1988 for the death of Amrish Kumar in a road accident with the averments that on 5.9.1994 at about 7:00 PM, Amrish Kumar-deceased was coming on motorcycle with his sister-in-law, Prema Devi and sister, Smt. Usha Devi, who were pillion riders. When they reached near the Puliya at Telin Talaiya, a bus bearing no. URE 5868 came from Banda side, which was being driven very rashly and negligently by its driver. The bus driver lost the control of the bus and dashed the motorcycle. In this accident, pillion rider sustained very serious injuries and deceased-Amrish Kumar died on the spot. 4. Aggrieved mainly with the compensation awarded, the appellants have preferred this appeal. 5. The accident is not in dispute. The issue of negligence has attained finality as neither the Insurance Company nor the owner of the vehicle has disputed the same even in oral submissions. The driver of the said vehicle was having valid and effective driving licence on the date of accident is also a decided fact. The vehicle being insured and there being no breach of policy condition is a finding, which has attained finality. The only issue to be decided is the quantum of compensation awarded by the Tribunal. 6. Learned counsel for the appellants-claimants has submitted that the learned Tribunal has not added any amount towards future loss of income, which is bad on facts and has not granted any amount under the head of non pecuniary damages. 7. The accident took place on 5.9.1994. 6. Learned counsel for the appellants-claimants has submitted that the learned Tribunal has not added any amount towards future loss of income, which is bad on facts and has not granted any amount under the head of non pecuniary damages. 7. The accident took place on 5.9.1994. The deceased-Amrish Kumar was aged about 22 years of age at the time of accident and he was an electric rewinding mechanic and used to have coaching classes. The Tribunal considered his income to be Rs.900/- per month, deducted Rs.300/- towards personal expenses of the deceased, granted multiplier of 16 and Rs.2000/- towards on pecuniary damages. 8. It is submitted by learned counsel for the appellants that the deceased was an electrician by profession and was earning Rs.3,000/- per month, however, the tribunal has considered his income to be Rs.900/- per month which is bad and it should be Rs.1500/-. The Tribunal had not granted any amount towards future loss of income which would be 40%. It is also submitted by learned counsel for the appellants that the amount awarded under non-pecuniary heads is also on the lower side and is required to be enhanced. It is further stated that the deceased was 22 years of age at the time of accident, hence, the multiplier applicable would be 18. He has relied on the decision in National Insurance Co. Ltd. v. Pranay Sethi and others, 2017 LawSuit (SC) 1093 & Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 in support of above arguments. 9. As against this, learned counsel for the respondent-Insurance Company has raised oral cross objection and has contended that the interest at the rate of 10% awarded by the Tribunal is on the higher side and is bad in the eye of law. It is submitted that the interest should be as per the repo rate. It is further submitted by learned counsel for the respondent that there can be no addition of amount as the accident is of the year 1994 when the Rule was not in vogue and the judgment of National Insurance Co. Ltd. v. Pranay Sethi and others, 2017 LawSuit (SC) 1093 was not available. 10. Having heard learned counsel for the parties, the income of the deceased can be considered to be Rs.900/- per month. Ltd. v. Pranay Sethi and others, 2017 LawSuit (SC) 1093 was not available. 10. Having heard learned counsel for the parties, the income of the deceased can be considered to be Rs.900/- per month. The deceased will fall within the category of self employed and his age was in the age bracket of 20-25 years at the time of accident, hence, 40% of income shall be added towards future loss of income even as per the judgment of Hon'ble Apex Court in the case of Gobald Motor Services Ltd. and another v. R.M.K. Velusamy, 1962 SCR (1) 929 and 1/3 shall be deducted for personal expenses as held by Hon'ble Apex Court in National Insurance Company v. Pranay Sethi [2017 (4) TAC 637 (SC)]. Keeping in view the age of the deceased, multiplier of 18 will be admissible in the light of the judgment of Hon'ble Apex Court in the case of Smt.Sarla Verma v. Delhi Transport Corporation [2009 (2) TAC 677 (SC)]. 11. As far as non-pecuniary damages are concerned, the wife of the deceased shall be entitled to get Rs.30,000/- towards loss of consortium in the light of Judgment in the case of Pranay Sethi (supra). Further, Rs.50,000/- to the children of the deceased be granted in view of the decision in Kurvan Ansari Alias Kurvan Ali v. Shyam Kishore Murmu, 2021 (0) AIJEL-SC 67995. 12. Hence, the total amount of compensation, in view of the above discussions, payable to the appellants-claimants is being computed herein below: (i) Annual Income : Rs.10,800/- Per annum (Rs.9,00 X 12) (ii) Percentage towards future prospects 40% : Rs. 4,320/- (iii) Total income : Rs. 10,800/- + Rs.4,320/- = Rs. 15,120/- (iv) Income after deduction 1/3 : Rs.15,120/- - Rs.5,040/- = Rs.10,080/- (v) Multiplier applicable : 18 (vi) Loss of Dependency : Rs. 10,080/- X 18 = Rs.1,81,440/- (vii) Amount under loss of consortium : Rs. 30,000/- + Rs.50,000/- = Rs.80,000/- (viii) Total compensation : Rs.1,81,440/- + Rs.80,000/- = Rs.2,61,440/- 13. As far as issue of rate of interest is concerned, the rate of interest would be 7.5 from the date of filing of the claim petition till award and 6% thereafter till deposit of 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. As far as issue of rate of interest is concerned, the rate of interest would be 7.5 from the date of filing of the claim petition till award and 6% thereafter till deposit of 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 within a period of 8 weeks from today with interest as directed above. The amount already deposited be deducted from the amount to be deposited. 15. Record and proceedings be sent back to the Tribunal forthwith. The amount be paid to the claimants and no amount be kept in fixed deposit. 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. Venugopal, Reported in 2012 (1) GLH (SC) 442, the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers. 17. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri P. Ladhani v. 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 under section 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 v. 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. 18. 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. 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 long period has elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.