Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 1419 of 2019 Appellant :- Abhishek Rai Respondent :- Girijesh Narayan Pandey And 5 Others Counsel for Appellant :- Vipin Chandra Dixit Counsel for Respondent :- Rahul Sahai
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Vipin Chandra Dixit, learned counsel for the appellant and Sri Rahul Sahai, learned counsel for the respondent.
2. Vakalatnama filed by Sri Rahul Sahai-Advocate on behalf of respondent no. 3 is taken on record.
3. This appeal, at the behest of the claimants, challenges the judgment and award dated 4.2.2019 passed by Motor Accident Claims Tribunal/Additional District Judge/Fast Track Court No.1, Azamgarh (hereinafter referred to as 'Tribunal') in MACP No.401 of 2013 awarding a sum of Rs.2,18,000/- with interest at the rate of 7%.
4. The accident is not in dispute. The issue of negligence is decided in favour of the appellant herein. The Insurance Company has not challenged the liability imposed on them by the Tribunal. The only issue to be decided is the compensation granted by the Tribunal.
5. It is submitted by learned counsel for the appellant that husband of the deceased was doctor and is a income tax payee and his income at the time of accident was Rs.3,25,100/- as per the tax returns. It is contended that 1/3rd income should be considered to be the income of the deceased and the calculation should be made like wise. The Tribunal has erred in considering the income to be Rs.36,000/- per year. He deducted 1/3rd for her personal expenses granted multiplier of 7 only and granted only Rs.35,000/- under the head of non pecuniary damages and the interest also granted was 7%.
6. It is submitted that the deceased being 62 years of age at the time of accident, the multiplier of 7 granted by the Tribunal requires to be maintained but 20% should be added to the income of the deceased and Rs.70,000/- should be paid for non pecuniary damages to both her husband and son and grant a sum of Rs.6,76,853/- with 9% rate of interest.
7. It is submitted by Sri Rahul Sahai, learned counsel for the respondent that the income of the deceased has not been proved. IInd Schedule of the Motor Vehicle Act cannot be applied in the facts of this case and the income cannot be 1/3rd of the husband. It is further submitted that no amount for future prospect can be added as per the judgment of Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050.
8. Having considered the judgment, the income as per Lata Wadhwa and others Vs. State of Bihar and others, 2002 (1) T.A.C. 138 (S.C.) as the accident occurred in the year 2012, income was considered to be Rs.4,000/- looking to the age of deceased and it could not be 1/3rd of the income of the husband.
9. I am in agreement with the submission of Sri Rahul Sahai, learned Advocate that the multiplier of 7 granted is just and proper as the deceased was 62 years of age. However the husband has lost the company of wife at the belated age. Hence, Rs.50,000/- be paid to him under the head of non pecuniary damages though he is not party respondent and Rs.20,000/- would be paid to the son of the appellant.
10. Thus, in view of the discussions and observations made herein above, the appellants- claimants would be entitled to following compensation.:
11. The rate of interest will have to be enhanced and I am unable to accept the submission of Sri Rahul Sahai, learned counsel for the respondent that the Rules will apply. A Division Bench of Lucknow Bench in F.A.F.O. No. 199 of 2017 (National Insurance Company Limited Vs. Lavkush and another) decided on 21.3.2017 have interpreted the Rules, which has been followed by this Court time and again, will enure for the benefit of the appellant and, therefore the rate of interest would be 9% as held in catena of decisions of this High Court.
12. 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 amount be deposited with interest at the rate of 9% from the date of filing of the claim petition till the amount is deposited. The amount be deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.
13. This Court is thankful to both the counsels to see that this very old matter is disposed of.
Order Date :- 29.5.2019/Mukesh