Court No. - 88
Case :- FIRST APPEAL FROM ORDER No. - 1846 of 2010 Appellant :- Reliance General Insurance Company Ltd. Respondent :- Smt. Rahela Rehman And Others Counsel for Appellant :- S.K. Mehrotra Counsel for Respondent :- Manish Tandon,R.K. Gupta
Hon'ble Vipin Chandra Dixit,J.
This First Appeal From Order has been filed by the Reliance General Insurance Company Limited against the judgment and award dated 26.2.2010 passed by Additional District Judge, Court No.13/Motor Accident Claims Tribunal, Kanpur Nagar in MACP No.205 of 2007(Smt. Rahela Rehman and others vs. Gagandeep Saran and another) by which compensation of Rs.16,76,170/- alongwith 6% interest has been awarded in favour of claimants and liability of payment has been fixed upon the appellant-insurance company.
Brief facts of the case are that the claimants- respondents had filed claim petition under the Motor Vehicles Act claiming compensation for Rs.47,35,232/- on account of death of Mohd. Anees Siddiqui who died in a road accident which occurred on 28.1.2007. It was alleged in the claims petition that the deceased was going to his factory by his scooter bearing no.UP78X-5156 on 28.1.2007 and when he reached near Medical college at 10:30 P.M. a Safari Tata car bearing no.UP78 BD- 4888 which was coming from opposite direction had dashed the scooter and Mohd. Anees Siddiqui had received grievous injury and died on account of injury received in the accident. It is pleaded that the deceased was on his left side in moderate speed and the offending car coming from opposite direction which was driven by its driver very rashly and negligently came wrong side and dashed the scooter of the deceased. The deceased was running business of iron. The age of deceased was 49 years at the time of accident and had earned Rs.28,116/- per month from the business. The FIR was lodged against driver of the car and the Investigating Officer after due investigation had submitted charge sheet against driver of the car.
The opposite party no.1 owner of the car had contested the claim by filing written statement. The factum of accident was denied by the owner of the car and it was pleaded that the deceased himself was rash and negligent and was responsible for the accident. The driver of the car had a valid and effective driving licence and his car was duly insured at the time of accident.
The opposite party no.2 appellant had appeared before the Claims Tribunal and filed its written statement denying the allegations of claim petition. It was pleaded by the insurance company that the deceased himself was rash and negligent. The insurance of car was denied and it was also pleaded that the driver of car had no valid and effective driving licence on the date of accident.
The Claims Tribunal has framed 7 issues for determination. The claimants had produced Smt. Rahela Rehman-claimant no.1 who is widow of deceased as P.W.1, Mohd. Yunus as P.W.2, Sajjan Tiwari as P.W.3, and Sushil Kumar Dixit as P.W.4 and had also produced documentary evidence to prove their case. The opposite parties had filed registration certificate, insurance certificate and driving licence as documentary evidence and no oral evidence was adduced by the opposite parties.
The claims Tribunal while deciding issues 1,5 and 7 had recorded the finding that the accident occurred on account of rash and negligent driving of driver of insured car and there was no negligence on the part of the deceased. The issue nos. 2 & 3 was decided holding that the car bearing no. UP78 BD 4888 was duly insured with the Reliance General Insurance Company Limited and the driver of car had a valid and effective driving licence to drive the car. The issue no.6 was also decided in favour of claimants holding that since there was no contributory negligence on the part of deceased and as such insurer of the scooter was not necessary party. The Claims Tribunal while deciding issue no.4 had assessed the compensation and awarded Rs.16,76,170/- with 6% interest and the liability of payment was fixed upon the appellant-insurance company being insurer of the car.
The claimants had also filed cross-objection appeal for enhancement of compensation on the ground that the compensation has wrongly been calculated by the Claims Tribunal and it was awarded on very lower side.
Heard Sri S.K. Mehrotra, learned counsel for the appellant and Sri Manish Tandon, learned counsel for claimant-respondent Nos. 1 to 3. No one is present on behalf of respondent no. 4 who is owner of the car.
Sri S.K. Mehrotra, learned counsel for the appellant-insurance company has challenged the award mainly on two grounds that it was a case of head on collusion between scooter and insured car and the deceased was driving the scooter without wearing helmet and as such there must be some contributory negligence on the part of the deceased and the Claims Tribunal has committed illegality in holding the negligence of driver of the car. It is further submitted that the Claims Tribunal has also erred in awarding very excessive compensation accepting loss of annual income of the deceased as Rs.2,50,000/- whereas there was no loss of income as business of deceased has not stopped after his death.
Learned counsel for the appellant had relied upon the site plan and had submitted that it was a case of head on collusion in between scooter and the insured car and as such there must be some contributory negligence on the part of the deceased. From the perusal of site plan it is apparent that the deceased was on his extreme left side and the insured car hit the scooter of the deceased by coming wrong side and as such from the site plan itself the driver of the car was alone responsible for the accident. The appellant-insurance company had not adduced any oral evidence and even driver of the car was not produced in witness box to prove the negligence of the deceased. The Investigating Officer after due investigation had also submitted charge sheet against driver of insured car. In absence of any evidence adduced by the Insurance Company, the Claims Tribunal has rightly decided the issue of negligence relying upon evidence of eye-witness P.W.2 and P.W.3 as well as site plan and as such the finding recorded by the Claims Tribunal in respect of rash and negligent driving of driver of car is based on evidence and material which are on record and there is no illegality in any manner.
Learned counsel for the appellant has failed to show any provision under the Motor Vehicles Act or any case law to the effect that if any business, factory or shop run by deceased was not closed after his death, the claimants are not entitled for compensation.
It is submitted by learned counsel for the claimants that the annual income of the deceased was accepted on lower side. The claimants had filed income tax returns for three years disclosing income of the deceased for the assessment year 2005-2006 as Rs.2,76,201/-, 2006-07 as Rs.3,37,399/- and year 2007-2008 as Rs.3,41,155/- but the Claims Tribunal had accepted annual income of the deceased as Rs.2,50,000/-. The multiplier has also wrongly been applied by the Claims Tribunal as '10' in place of '13'. No amount has been awarded towards Future Prospects and Non-Pecuniary Damages were also awarded on lower side.
After considering the rival submission of learned counsel for the parties and after perusing the entire record, this Court finds that the finding recorded by the Claims Tribunal in respect of negligence of car driver, insurance of car as well as validity of driving licence are based on oral as well as documentary evidence adduced by the parties and there is no illegality in any manner but compensation has wrongly been calculated and it was awarded on lower side.
So far as quantum of compensation is concerned, the Claims Tribunal has erred in applying wrong multiplier as well as accepting the income after rebate and also erred in not awarding any amount towards Future Prospects and Non-Pecuniary Damages was also awarded on lower side.
The Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017(4) T.A.C. 673 has laid down certain guidelines for calculating just compensation under the Motor Vehicles Act. Relevant paragraph 61 is reproduced hereunder:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
In view of above, the compensation is reassessed in view of law law provided by Hon'ble Apex Court in the case of Pranay Sethi(supra) which is as follows:
1) Annual income: Rs.3,18,252/-
2) Future prospects: 10% = Rs.31,825/-
3) Total annual income: Rs.3,18,252/- + Rs.31,825/-=Rs.3,50,077/-
4) Deduction towards personal expenses: 1/3rd = Rs.1,16,692/-
5) Annual loss of dependency: Rs.3,50,077-Rs.1,16,692=Rs.2,33,385/-
6) Multiplier applicable: 11=Rs.2,33385x11=Rs.25,67,235/-
7) Total loss of dependency: Rs.25,67,235/-
8) Non-pecuniary damages: Rs.70,000/-
Total: Rs.25,67,235+ Rs.70,000/- = Rs.26,37,235/-
In view of above, the appeal preferred by Reliance General Insurance Company Limited is dismissed and cross-appeal filed by Claimants respondents is partly allowed. The compensation awarded to the claimants is enhanced from Rs.16,76,170/- to Rs.26,37,235/- and the appellant- insurance company is liable to pay enhanced amount of compensation of Rs.9,61,065/- alongwith 6% interest from the date of filing claim petition to the claimants within two months from the date of production of certified copy of this order.
Interim order, if any, is vacated. No order as to cost.
Order Date :- 28.10.2021 P.P.