Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1312 (ALL)

Baijanti Devi v. Rajesh Sisodiya

2023-05-12

K.J.THAKER

body2023
JUDGMENT : 1. By way of this appeal, the appellants has challenged the judgment and order dated 7.2.1997 passed by Motor Accident Claims Tribunal/ XIIIth Additional District Judge, Agra (hereinafter referred to as ‘Tribunal’) in M.A.C. Case No. 359 of 1995 (Smt. Baijanti Devi and another Vs. Rajesh Sisodiya and others) awarding a sum of Rs.1,00,500/- as compensation to the claimants/appellants with interest at the rate of 12% per annum from the date of filing the claim petition till the amount is deposited. 2. Heard Mr. Madhav Jain, learned counsel for the appellants and Ms. Anita Srivastava, learned counsel for the respondent no.5-Oriental Insurance Co. Ltd. Perused the record and judgment. 3. Though, there are two vehicles involved, one insured by Oriental Insurance Co. Ltd. and other by New India Assurance Co. Ltd. None has appeared on behalf of New India Assurance Co. Ltd. 4. 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 Suresh Babu in a road accident with the averments that on 25.9.1995 Suresh Babu-deceased was traveling as a passenger in bus bearing no. U.P. 80G 9898, which was going on the Agra and Mathura Road. When the bus reached near the 220 KV Vidyut Station, a truck no. U.P. 85A 9705 came from the opposite side, which was being driven very rashly and negligently by its driver. The truck driver lost the control of the truck and hit the bus. In this accident, passenger/deceased sustained grievous injuries and succumbed to the said injuries. 5. Aggrieved mainly with the compensation awarded, the appellants have preferred this appeal. 6. 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. 7. The only dispute which now remains is that compensation of Rs.1,00,500/- with 12% interest is not acceptable to the appellant. 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. 7. The only dispute which now remains is that compensation of Rs.1,00,500/- with 12% interest is not acceptable to the appellant. The learned Tribunal did not grant any amount towards future loss of income. The learned Tribunal has considered the income of the deceased to be Rs.17,500/- per annum, though, he had his business and thereafter erroneously deducted 40% holding that the deceased was negligent. The learned Tribunal has applied the multiplier of 15, the Tribunal has granted Rs.3,000/- towards funeral expenses and Rs.3,000/- towards loss of consortium. 8. Though, it is submitted that it was a case of composite negligence and not of contributory negligence as the deceased was passenger in the bus and the accident occurred between bus and truck. 9. The bone of contention is that deceased was a passenger in the bus and even if the driver of the bus is considered to have contributed to the tune of 60% and 40% for the truck. No amount could have been deducted from the compensation payable to the legal heirs of the deceased. 10. 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 35 years of age at the time of accident, hence, the multiplier applicable would be 16. He has relied on the decision in National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093 & Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 in support of above arguments. 11. Learned counsel for the respondent-Oriental Insurance Co. Ltd. has submitted that they may be given recovery rights against the other tort-feasor. The Insurance Company of the truck, who have may deposit the entire amount would be entitled to recover from the Insurance Company of the bus, who have failed to appear for a period of 23 years. It is also submitted that any cogent evidence of his income of the deceased and he was not income tax payer, therefore, the income fixed by the learned Tribunal does not require any interference by this Court. 12. It is also submitted that any cogent evidence of his income of the deceased and he was not income tax payer, therefore, the income fixed by the learned Tribunal does not require any interference by this Court. 12. Having heard learned counsel for the parties, the income of the deceased can be considered to be Rs.2,400/- per month. The deceased will fall within the category of self employed and his age was in the age bracket of 35 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 (1) SCR 929 and 1/3rd shall be deducted for personal expenses as held by Hon'ble Apex Court in National Insurance Company vs. Pranay Sethi [2014 (4) TAC 637 (SC)]. Keeping in view the age of the deceased, multiplier of 16 will be admissible in the light of the judgment of Hon'ble Apex Court in the case of Smt. Sarla Verma vs. Delhi Transport Corporation [2009 (2) TAC 677 (SC)]. 13. 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 son of the deceased be granted in view of the decision in Kurvan Ansari Alias Kurvan Ali Vs. Shyam Kishore Murmu, 2021 (0) AIJEL-SC 67995. 14. 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.28,800/- Per annum (Rs.2,400 X 12) (ii) Percentage towards future prospects 40% Rs.11,520/- (iii) Total Income Rs.28,800/- + Rs.11,520/- = Rs.40,320/- (iv) Income after deduction 1/3 Rs.40,320/- – Rs.13,440/- = Rs.26,880/- (v) Multiplier applicable 16 (vi) Loss of Dependency Rs.26,880/- X 16 = Rs.4,30,080/- (vii) Amount under loss of consortium Rs.30,000/- + Rs.50,000/- = Rs.80,000/- (viii) Total Compensation Rs.4,30,080/- + Rs.80,000/- = Rs.5,10,080/- 15. As far as issue of rate of interest is concerned, the rate of interest would be 7% from the date of filing of the claim petition till award and 6% thereafter till deposit of amount. 16. In view of the above, the appeal is partly allowed. As far as issue of rate of interest is concerned, the rate of interest would be 7% from the date of filing of the claim petition till award and 6% thereafter till deposit of amount. 16. 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. 17. If the Oriental Insurance Company deposit the entire amount, they would be entitled to recover 60% amount from the owner, driver and the Insurance Company of the bus, who have failed to appear before this Court. 18. 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. 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. 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 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. 21. 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. 22. 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.