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2023 DIGILAW 1276 (ALL)

Geeta v. Oriental Insurance Company Ltd.

2023-05-09

K.J.THAKER

body2023
JUDGMENT Kaushal Jayendra Thaker, J. Heard Sri B.R. Singh, learned counsel for the appellants and Sri A.K. Shukla, learned counsel for respondents. 2. This appeal, at the behest of the claimants, challenges the judgement and decree dated 7.11.1997 passed by M.A.C.T/Special Judge (E.C. Act), Mainpuri (hereinafter referred to as "Tribunal") in M.A.C.P. No. 164 of 1996. The accident is not in dispute. His death by the accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The only issue to be decided is, the quantum of compensation awarded. 3. Brief facts as culled out from the record are that on 05.03.1996 deceased Sahab Singh were travelling in Tempo no. U.T.M. 9478. At about 10:00 A.M infront of Shankar cold storage Bewar on G.T. road the said tempo collided with truck no. H.R. 26/6368 resulting in the death of many persons including Sahab Singh. It is alleged that truck no. H.R. 26/6368 was being driven very rashly and negligently by its driver as a result of which accident occurred. 4. The deceased Sahab Singh was 30 years of age was a contractor in U.P. Jal Nigam and his legal heirs consist of his widow and minor son. Being a contractor in U.P. Jal Nigam there is a certificate issued at Ex. 39 Kha pg 16 which is mentioned in the judgment also but the tribunal did not considered this amount and held that the income can be considered to be Rs. 1500/-p.m to which the deduction was 1/3rd, 20% was granted as lum sum compensation and at the end applied multiplier of 15 and Rs. 1,48,000/- with 12% interest was awarded. 5. It is submitted by Sri B.R. Singh, learned counsel for the appellants that the certificate proves that income of the deceased was Rs. 3696/- p.m to which as he was a contractor and in self employment 40% be added as per the judgment of Gobald Motor Services Ltd. and another v. R.M.K.Veluswami and other, 1962, SCR(1) 929 which had presidential values even in those days, the deduction of 20% lum sum has been deprecated by the Supreme Court time and again, the deduction of 1/3rd is not assailed, multiplier of 16 and non pecuniary damages be granted as per the judgment of the Apex Court National Insurance Co. Ltd. v. Pranay Sethi and others, 2017 LawSuit (SC) 1093 or as per the rules applied in U.P and the interest of 12% is maintained. It is further submitted by Sri B.R.Singh, learned counsel for the appellants that no amount under the head of future loss of income has been granted. 6. Per contra, As against this, it is submitted by Sri A.K.Shukla, learned counsel for the respondents that in absence of any proof except the certificate there is no error which calls for any interference, however, Sri A.K. Shukla, learned counsel for the respondent could not point out as to non grant of future prospects and that multiplier of 16 be applied. 7. After hearing the counsel for the parties and perusing the judgment and order impugned, this Court feels that his income can be considered to be Rs. 3500/- per month. To which as the deceased was 30 years at the time of accident, 40% of the income would have to be added as future loss of income to the deceased, deduction would have to be of 1/3rd, multiplier of 16 and Rs. 50,000/- for widow, Rs. 50,000/- for son. The oral objection of Sri A.K.Shukla, learned counsel is accepted. 8. Further, this Court feels that the quantum/compensation requires to be recalculated. Hence, the total compensation payable to the appellants is computed herein below: i. Income : Rs. 3500/- ii. Percentage towards future prospects : 40% namely Rs. 1400/- iii. Total income : Rs. 3500 + 1400 = Rs. 4900/- iv. Income after deduction of 1/3rd : Rs. 3266/- (rounded of) v. Annual loss : Rs. 3266 x 12 = Rs. 39,192/- vi. Multiplier applicable : 16 vii. Total loss : Rs. 39,192 x 16 = Rs. 6,27,072/- xiii. Amount under non-pecuniary head : Rs. 1,00,000/- ix. Total compensation : 7,27,072/- 9. As far as issue of rate of interest is concerned, 7% from the date of filing of the claim petition till decision of the claim petition and 6% thereafter. 10. No other grounds are urged orally when the matter was heard. 11. 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 recalculated amount within a period of 12 weeks from today with interest as directed above. 12. 10. No other grounds are urged orally when the matter was heard. 11. 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 recalculated amount within a period of 12 weeks from today with interest as directed above. 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. 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. 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. 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 more than 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 Sri B.R.Singh, learned counsel for the appellants and Sri A.K.Shukla, learned counsel for respondents for ably assisting this Court.