Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 1486 of 2010 Appellant :- Smt. Aasiya Siddiqui & Another Respondent :- Ashok Kumar Gautam & Others Counsel for Appellant :- Ram Singh Counsel for Respondent :- Amaresh Sinha,S.C. Gupta
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard Sri Ram Singh, learned counsel appearing for the claimant- respondents and Sri Amresh Sinha, learned counsel for the respondent no.3. No one has appeared for the other respondents despite service of notice deemed to be sufficient upon them.
The claimant-appellants have preferred this appeal for enhancement of compensation awarded vide judgment, order and award dated 15.1.2010 passed by the Motor Accident Claims Tribunal. The Tribunal by the impugned award has awarded a sum of Rs. 25,99,232/- to the claimant-appellants and has fixed the liability to pay the same in the ratio of 80:20 upon the Oriental Insurance Company with which the vehicle TATA 407 having registration number U.P.-81-N-9183 was insured and upon the owner of Indica car having registration number HR-1Q- 1802 respectively.
The aforesaid award of the Tribunal was challenged by the Oriental Insurance Company Ltd. by means of First Appeal From Order No. 3319 of 2010, which was dismissed on 17.4.2017.
No appeal was filed by the owner of the vehicle upon whom the liability to pay 20% of the compensation was fixed.
The submission of Sri Ram Singh, learned counsel for the claimant-appellants is that the Tribunal has committed a mistake in taking the income of the deceased to be Rs. 46,132/- ignoring the enhancement of the salary as per the sixth pay commission. Secondly, no addition for future prospects of the deceased has been made in his salary. The award of interest at the rate of 6% per annum is on the lower side. Lastly, the non-pecuniary damages are also on the lower side.
There is no dispute to the fact that the accident took place due to negligence of drivers of both the vehicles i.e. TATA 407 having registration number U.P.-81-N-9183 and the Indica car having registration number HR-1Q-1802. The negligence of the respective drivers have been determined as 80% and 20% on which there is no dispute.
The deceased at the time of accident was aged about 57 years and accordingly, multiplier of 9 has rightly been applied.
Now coming to the income of the deceased, it is alleged that the deceased was a Professor and his last drawn salary was Rs. 46,132/- in month of June, 2007. In the said month, he had also received arrears of Rs. 7,360/- and as such, the total salary was shown as Rs. 53,892/-. The arrears so given in the aforesaid month are not to be added in the monthly salary and as such, the Tribunal has rightly taken the salary to be Rs. 46,132/- per month.
The submission that after applying the revised rate of salary as per the report of the sixth pay commission, the salary of the deceased would have been Rs. 66,325/- is of no consequence for the purposes of awarding compensation. The actual last salary drawn by the deceased forms the basis and the foundation for determining the compensation and not the future salary which is normally taken care of providing additions to salary for future prospects.
The Tribunal has deducted 1/3rd of the said salary towards personal expenses to work out the dependency of the claimant- appellants and we find no error in this deduction.
The deceased was aged about 57 years and as such, according to Pranay Sethi's* case, 15% of the salary would have been added in the basic salary towards future prospects for the award of fair compensation. The provision of Rule 220-A of the U.P. Motor Vehicle Rules, 1998 would not apply as they had come into force only w.e.f. 26.9.2011 and was not in place either on the date of the accident or when the award was pronounced by the Tribunal.
Rule 220-A of the Rules provide for award of minimum of 7% interest per annum. But this is w.e.f from 26.9.2011. The aforesaid Rule will not apply to the matter, which has been decided earlier. Therefore, the award of 6% interest cannot be held to be illegal or arbitrary.
According to Pranay Sethi's case, under the conventional head * National Insurance Co. Ltd. vs. Pranay Sethi (2017) 16 SCC 680 and non-pecuniary damages, compensation for loss of estate, loss of consortium and funeral expenses have been fixed at Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The Tribunal under these heads have only awarded a sum of Rs. 2,000/-, Rs. 5,000/- and Rs. 2,500/- respectively.
Therefore, we enhance the same and fixes them at the rate of Rs.
15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.
In view of the above, the compensation payable to the claimant- appellants is as under:
The compensation of Rs. 25,99,232/- awarded by the Tribunal is enhanced to Rs. 33,28,675/- to be payable in the ratio of 80:20 by the Oriental Insurance Company and the owner of Indica Car. The award of the Tribunal dated 15.01.2010 stands modified to the above extent. The appeal is allowed in part. No order as to cost.
Order Date :- 24.4.2018 Noman