Court No. - 4
Case :- FIRST APPEAL FROM ORDER No. - 1103 of 2012 Appellant :- The New India Assurance Company Ltd.
Respondent :- Vidya Devi And Others Counsel for Appellant :- V.C.Dixit
Hon'ble Bala Krishna Narayana,J. Hon'ble Irshad Ali,J.
Case called out in the revised list.
None has appeared on behalf of respondent no. 2, although the name of Sri Vivek Yadav has been shown in the cause list as counsel for the respondent no. 2.
Sri V.C. Dixit, learned counsel has appeared on behalf of appellant- insurance company.
Seen the office report dated 19.2.2018. Service on respondent nos. 1, 3, 4, 5 and 6 is deemed to be sufficient in view of the provisions of Chapter VIII, Rule 12, Explanation (II) of the Allahabad High Court Rules.
This first appeal from order has been preferred by the appellant-insurance company against the judgment and award dated 25.01.2012 passed by M.A.C.T./A.D.J Court No. 1, Jaunpur in M.A.C.P. No. 232 of 2007.
By the impugned judgement and order, the M.A.C.T. Jaunpur allowed in part the M.A.C.P. No. 232 of 2007 filed by the claimants-respondents claiming a sum of Rs. 20,30,000/- along with the interest at the rate of 12% per annum as compensation for the death of one Suresh on 9.11.2007 at about 9 P.M. in an accident which was caused due to rash and negligent driving of a Truck bearing registration no. HR58/2569 (hereinafter referred to as the "offending truck") by its driver which collided with Bolero Car bearing registration no. UP53Q/1292 in which the deceased was going to Nauperva.
In the claim petition, it was pleaded that the deceased at the time of his death was an employee in the Public Works Department (P.W.D.) and was earning Rs. 5000/- per month and apart from his salary which he was drawing by virtue of his being an employee of P.W.D. he was earning Rs. 3000/- per month by working at home and hence his monthly income was Rs. 8000/- per month. The claimants-respondents had also claimed Rs. 30,000/-, Rs. 3,00,000/- ad Rs. 2,00,000/-respectively under the conventional heads namely funeral expenses, loss of mental agony and loss of consortium.
The claim petition was contested by the appellant-insurance company as well as the opposite party nos. 5 and 6, the owners of the offending truck and the Bolero car by filing their respective written statements. The tribunal on the basis of the pleadings of the parties framed as many as eight issues. The parties led evidence in support of their respective cases which has been referred to and dealt with in detail by the tribunal in the impugned judgment and award and which need not to be reproduced herein and to which we shall refer as and when the context so requires.
The tribunal by the impugned judgement and award allowed the claim petition of the claimants-respondents in part and awarded Rs. 9,10,325/- as compensation against all the opposite parties and directed the appellant- insurance company to make payment of the awarded compensation to the claimants-respondents.
Sri V.C. Dixit, learned counsel for the appellant-insurance company has challenged the impugned judgement and award on following two grounds :
(i) It being a case of head on collusion, it was incumbent upon the tribunal to have apportioned the liability of payment of compensation equally between the owners of the offending truck as well as the Bolero car in which the deceased was travelling at the time of incident.
(ii) While making 1/4th deduction towards the personal and living expenses of the deceased, the tribunal committed a patent error of law in counting the claimant-respondent nos. 2, 3 and 4 who were minors at the time of the incident as whole in place of half as stipulated under clause
(iii) of sub-Rule (2) of Rule 220-A of the U.P. Motor Vehicles Rules, 1998.
As far as the first ground on which the learned counsel for the appellant has assailed the impugned judgement and award is concerned, the same in our opinion is without any merit.
Learned counsel for the appellant has failed to invite our attention to any evidence on record except the site plan of the place of incident, which was not proved, which may indicate that the driver of Bolero car in which the deceased was travelling at the time of the accident was equally responsible for the head on collusion.
After scrutinizing the evidence on record, the tribunal recorded a categorical finding in the impugned judgement that there was negligence on the part of the drivers of both the vehicles which resulted in the accident and while the contribution of the driver of the offending truck in causing the accident was 70%, that the driver of the Bolero car was 30% and it had accordingly apportioned the liability to pay compensation. We do not find that the aforesaid finding recorded by the tribunal suffers from any illegality or legal infirmity requiring any interference by this Court.
However, the second ground of which the learned counsel for the appellant has assailed the impugned judgement and award has force.
It is an admitted fact that the claimant-respondent nos. 2, 3 and 4 were minor at the time of the incident. Clause (i) of sub-Rule 2 of Rule 220-A stipulates that deduction for personal and living expenses of the deceased shall be 50% where the deceased is unmarried and deduction shall be 1/3rd where the family members of a bachelor dependent on the income of the deceased is large. Clause (i) of sub-Rule 2 of Rule 220-A further provides that deduction towards personal and living expenses of a married deceased shall be 1/3rd where dependent family members are 2 to 3 in numbers, 1/4th where dependent family members are 4 to 6 in number and 1/5th where dependent family members are more than 6 in number and clause (iii) of sub-Rule 2 of Rule 220-A further stipulates that for the purpose of calculation of number of family members in clause (ii) a minor dependent will be counted as half.
In the instant case, the tribunal while calculating the number of family members of the deceased has erroneously counted the minor children of the deceased as full members of the family instead of (1/2) half as provided under clause (iii) of sub-Rule 2 of Rule 220-A and made a deduction 1/4th towards personal and living expenses in place of deduction 1/3rd as the number of family members dependent on the deceased, upon counting as per clause (iii) of sub-Rule 2 of Rule 220-A is two and a half which is less than 3.
Thus, in view of the foregoing discussion, we hold that the tribunal erred in making a deduction of 1/4th towards personal and living expenses of the deceased while calculating the number of family members dependent on the deceased as 4 in place of 2 and a half.
But at the same time, we are of the view that the two amounts of Rs. 5000/- each and Rs. 10,000/- awarded by the tribunal under the conventional heads namely funeral expenses, loss of estate and loss of consortium, in our opinion are too meagre and not in consonance with the principle stated by the Apex Court in sub-paragraph (viii) of paragraph 61 of the judgement of National Insurance Company Limited Versus Pranay Sethi and Others reported in 2017 (4) T.A.C. 637 (S.C.).
The constitutional bench of the Apex Court in the case of National Insurance Company Limited Versus Pranay Sethi and Others reported in 2017 (4) T.A.C. 637 (S.C.) in sub-paragraph (viii) of paragraph 61 has ruled that 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.
Thus the amounts awarded under the conventional heads of funeral expenses, loss of consortium and loss of estate are also liable to be increased in accordance with the principles laid down in the case of Pranay Sethi (supra).
We accordingly allow this appeal in part and proceed to recalculate the compensation in the light of the aforesaid principles. As noted above, the monthly income of the deceased is assessed at Rs. 6595/- per month or Rs. 79,140/- per annum. By adding 50% of his monthly income towards future prospect, his monthly income is determined as Rs. 9892.50/- per month or Rs. 1,18,700/- per annum. Considering the number of dependants and the fact that the deceased was a married at the time of death, 1/3rd of the deceased's income is liable to be deducted towards the amount which he would have spent upon himself, if he had remained alive. After deducting 1/3rd from his monthly income towards his personal expenses, his contribution to the family is assessed at Rs. 9892.50 - 3297.50 = 6595/- per month or Rs. 79,140/- per annum. By applying the multiplier of 15, the loss of dependency is assessed as Rs. 11,87,100/-. The claimants-
respondents in addition to the aforesaid amount are also entitled to Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively under the conventional heads namely funeral expenses, loss of consortium and loss of estate in consonance with the principles stated by the Constitutional Bench of the Apex Court in the case of National Insurance Company Limited (supra). Thus, the total compensation which the claimants- respondents are entitled to receive Rs. 12,57,100/- We accordingly increase the compensation from Rs. 9,10,325/- to 12,57,100/-. The increased amount shall carry the interest at the rate of 7% per annum from the date of claim petition to the date of payment.
The parties shall bear their respective costs.
Order Date :- 30.3.2018 SA