Court No. - 37
AFR Case :- FIRST APPEAL FROM ORDER No. - 2386 of 2016 Appellant :- Smt. Kavita Singh And 4 Others Respondent :- H.D.F.C. Ergo General Insurance Co. Ltd. And 2 Others Counsel for Appellant :- Mayank Counsel for Respondent :- Sushil Kumar Mehrotra
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Dinesh Pathak,J.
1. Heard Sri Mayank, learned counsel for the appellants, Sri Sushil Kumar Mehrotra, learned counsel for the respondent and perused the judgment and order impugned.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 22.4.2016 passed by Motor Accident Claims Tribunal/Additional District Judge,Court No.3, Mathura (hereinafter referred to as 'Tribunal') in M.A.C.No.567 of 2014 awarding a sum of Rs.23,51,000/- with interest at the rate of 7% as compensation.
3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondent has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded.
4. It is submitted by learned counsel for the appellants that deceased was about 32 years at the time of the accident. Tribunal has wrongly assessed his income as Rs.16260/- by excluding the amount of HRA. It is submitted that in view of the Judgment of Apex Court in Vimal Kanwar and others Vs. Kishore Dan and others, 2013 (3) T.A.C. 6 (S.C.) 2013 (3) T.A.C. 6 (S.C.), the Tribunal could not have deducted HRA and thus, income of the deceased may be considered Rs.18159/-. Further it did not grant any amount under the head of future prospect, which should be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that the amounts granted under non-pecuniary damages are on the lower side and it should be as per the decision in Pranay Sethi (Supra). It is further submitted that the deduction towards personal expenses of the deceased should be 1/3rd. Hence, the award requires enhancement.
5. As against this, learned counsel for the Insurance Company has submitted that the award does not require any interference. The Tribunal has not committed any error in not granting the future loss of income.
6. We have considered the submissions and considered the factual data. The deceased was fourth class employee in National Federation of Cooperative Federation of Corporative Sugar Factory. We agree with the submission of the learned counsel for the appellants that HRA cannot be excluded while considering the income of the deceased in view of Judgment in Vimal Kanwar (supra). Thus, we consider income of the deceased to Rs.18159/-. Further as the deceased was below 40 years of age and a salaried person, 50% is to be added towards future loss of income. Main contention of Sri Mehrotra is that deduction of 1/4 is bad as father cannot be said to be dependent and deduction of personal expenses has to be always based on the number of dependents/legal representative of the deceased. We are convinced with the submission of Sri Mehrotra. Thus, deduction towards personal expenses would be 1/3rd and not 1/4th. The amount under the head of non-pecuniary head would be Rs.70,000/-+30,000 as this is appeal of the year 2016 and about four years have elapsed.
7. Hence, total compensation payable is recalculated and is computed herein below:
i. Income Rs.18,159/-
ii. Percentage towards future prospects : 50% namely Rs.9079/- (rounded up)
iii. Total income : Rs.18,159 +9,079 = Rs.27,238/-
iv. Income after deduction of 1/3rd : Rs.18,159/-
v. Annual income : Rs.18159 x 12 = Rs.2,17,908/-
vi. Multiplier applicable : 16
vii. Loss of dependency: Rs.2,17,908 x 16 = Rs.34,86,528/-
viii. Amount under non-pecuniary head : Rs.1,00,000/-
ix. Total compensation : Rs.35,86,528/-
9. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :-
"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
9. No other grounds are urged orally when the matter was heard.
10. 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.
11. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti 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.
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 respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.
13. 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 not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.
14. Record and proceedings be sent back to the Tribunal.
Order Date :- 19.8.2021 Ram Murti