Challenge in this first appeal against final order under Section 173 of Motor Vehicles Act (for short the 'Act') is an award dated 08.01.2001 passed in Motor Accident Claims Petition No. 273 of 1998 by 5th Additional District Judge, Unnao/ Motor Accident Claims Tribunal (hereinafter referred to as the 'Tribunal'), wherein in the petition filed for compensation by parents, brother and sister of deceased Imran Warsi, who died in Motor Accident, a compensation of Rs. 1,50,000/- was awarded. Dissatisfied with the amount of compensation the claimants preferred this appeal.
2. The brief facts of this case are that according to the claim petition one Imran Warsi, aged about 28 years, a business man having his establishment known as Silver Green, Parade Road, Kanpur, was going from Lucknow to Kanpur on 01.02.1998. When his own Maruti car having registration No. U.P. 78 R-8613 reached at Lucknow-Kanpur road near Singh Hotel, Nababganj Town within the area of Police Station Ajgain, District Unnao a bus having registration No. U.P. 32-T-7270 hit the car driven by Imran Warsi. In this head on collision bus came in wrong side. The driver driving the bus rashly and negligently in high speed lost control over bus causing grievous injuries to Imran Warsi. Imran Warsi was taken to District Hospital, Unnao from where he was referred to Kanpur. Before reaching to the hospital at Kanpur Imran Warsi succumbed to the injuries and declared death when he was at hospital in Kanpur.
3.It was further pleaded that deceased was the only earning member of his family. He was earning Rs. 15,000/- per month and was Income Tax payee. He paid the tax upon the income of Rs. 67,260 during the financial year 1997-98 i.e. year ending of 31st of March, 1998.
4.The petition was contested by the owner of the bus Niraj Maurya and National Insurance Company Ltd., the insurer of the bus. On the basis of pleadings of the parties several issues were framed. The parties adduced their evidence but non of the respondents i.e. owner and insurer of the bus adduced any oral evidence. After considering the evidence on record the Tribunal held that the accident was occurred due to sole negligence of driver of bus in which Imran Warsi succumbed to the injuries. It was not a case of composite negligence. it was further held that the bus was being driven by a valid driving licence holder at the time of accident and the same was duly insured with respondent No.2 on the date and time of accident.
5.While awarding the compensation the Tribunal assessed the income of deceased at Rs. 45,000/- per month. It was further held that the father of the deceased Mohd. Usman Warsi is only dependent legal heir who is more than 60 years of age on the date of accident. After applying the multiplier of 5 and after deducting 1/3rd amount towards own expenses of the deceased awarded the compensation of Rs.1,50,000/-.
6.Heard the learned counsel for the parties and perused the record of appeal as well as of Tribunal.
7.It is an appeal of the Claimants-Appellants challenging the quantum of compensation. Some other issues relating to compensation and entitlement are also involved in this appeal. No appeal or cross objections have been filed either by the owner or the insurer of the bus.
8.The learned counsel for the appellant submitted that the Tribunal has wrongly assessed the income of the deceased at Rs. 45,000/- per annum though in the income tax return of the same financial year the net taxable income of Rs. 67,260/-was shown, therefore, the assessment of the income is manifestly erroneous and is liable to be set aside. The income of the deceased should be taken at least of Rs. 67,260/- for the purpose of computation of compensation.
9.Learned counsel for the appellants further submitted that the Tribunal has erred in not awarding the pendente lite interest and has violated the mandate as contained in Section 171 of the Act. He also submitted that awarding of interest is mandatory as held in National Insurance Company Ltd., Vs. Smt. Mayawati and Ors. (2006 (2) ALJ 799).
10.Learned counsel for the petitioner has further submits that in view of latest judgment of the Supreme Court even the businessman also entitled to the enhancement of compensation for future prospect as held in Santosh Devi Vs. National Insurance Company Ltd and others-(2012) 6 SCC 421.
11.The Counsel for the appellants further submitted that the Tribunal has wrongly held that mother is not legal representative nor the dependent of the deceased. In this regard the learned counsel for the Appellants relied upon the judgment in Gujrat State Road Transport Corporation, Ahmadabad Vs. Ramanbhai Prabhatbhai (AIR 1987 SC 1690). In this judgment their Lordships has held that the brother of deceased can file the claim petition as legal representative of the deceased, however, it was observed that brother being not the dependent of the deceased was not entitled to compensation except to the extent of minimum amount payable under Section 140 of the Act. Hence, the Tribunal was wrong in holding that mother, brother and sister of the deceased are not legal heir of the deceased.
12.It was further submitted by the counsel for appellants that the income shown in income tax return is the minimum. The actual income is much higher and not less than 15,000/- per month. For the purpose of computation of compensation the income of Rs.15,000/-per month should be taken in consideration.
13.On the contrary, the learned counsel for the Insurance Company pointed out that in this case the deceased was an unmarried person and aged about 34 years of age. The Tribunal has committed manifest error in law by not deducting half of the amount towards the personal expenses of the deceased and only deducting 1/3rd amount towards the same, therefore, the amount awarded by the Tribunal is already excessive and no interference is called for in the award. It has been further submitted that the return of income tax is not reliable. From the perusal of the Income Tax Return, it reveals that return was filed by the father of the deceased after death of Imran Warsi. Hence the income shown in the income tax return is not acceptable and exorbitant income has been shown for the purpose of this case and the Tribunal has rightly held that the income of the deceased was Rs. 45,000/- per annum.
14.The Counsel for insurance company relied upon the latest judgment of the Hon'ble Supreme Court in Shakti Devi Vs. the Union of India & ors. reported in 2001 (1) TAC 4 SC where in it was held that the deduction for personal expenses should be, in case of unmarried deceased would be half of the income and not 1/3rd.
15.It was further submitted that the finding recorded by the Tribunal that mother is not legal representative is based on evidence on record. Attention has been drawn towards the oral statement of the petitioner Mohd. Usman Warsi wherein he stated on oath that is wife, son and daughter are not dependent upon him. It was further submitted that all the sisters and brothers of deceased are major and no evidence adduce on behalf of the petitioner that they are dependent upon the deceased. It was further submitted that the amount awarded by the Tribunal has already been deposited by Insurance Company and also withdrawn by petitioner No.1 Mohd. Usman Warsi on the basis of repayment application moved by him. Therefore, the petitioner have stopped to challenge the the award on this score.
16.Learned counsel for the Insurance Company further submitted that awarding of interest is discretionary and not mandatory.
17.On these grounds it has been submitted by learned counsel for insurance company that no interference is called for in the impugned award.
18.On the basis of submissions put forward at the Bar following are the points for the consideration by this Court.
I. Whether the tribunal was on fact right in holding the income of the deceased at Rs. 45,000/- per annum?
II. Whether awarding of pendente lite and future interest is mandatory?
III. Whether mother is the legal heir and dependent of the deceased?
IV. Whether deduction of 1/3 amount towards the personal expenses of the deceased is wrong and it should be one half of the total income because of the fact that the deceased was unmarried?
V. Whether the petitioner are entitled to enhancement of compensation on the ground of future prospect of the deceased?
VI. Whether in case of difference in the age of two parents, i.e. father and mother, the multiplier should be in accordance with the age who is lessor in age?
Point No. I and V
19.As both these points are connected with the fixation of income of deceased for calculation of compensation so they are taken to-gather.
20.To assess the income of the deceased Appellants relied upon Income Tax Return. The photostat copy of income tax return filed by Appellants is already on record. The genuineness of this document has not been disputed by insurance company or by the Owner of the Vehicle. The Appellant No.1 gave statement contrary to it. The income stated on oath of the deceased at Rs. 15,000/ P.M. cannot be accepted. The income shown in this assessment order would be the income of the deceased and the tribunal has erred in reducing the income of the deceased shown in the income tax return for the relevant year. At the most amount paid as income tax could be deducted from this amount and no other amount is liable to be deducted.
21.From the perusal of the assessment order of income tax it appears that a sum of Rs. 842/- has been deducted as income tax from the actual income of 64,600/. As such income comes to Rs. 63,818/- p.a. It makes no difference that the return of Income Tax has been filed after the death of assessee by the father. The balance sheet of the year in question has also been filed by the Appellants before the Tribunal.
22.We are of the opinion that income of the deceased would be taken at Rs. 64,000/- in round figure. In view of the judgment of the Hon'ble Supreme Court in Santosh Devi case (supra), considering 34 years age of the deceased based on the date of birth given in Income Tax return the addition of 30% of income is required to be made for computing the compensation.
23.Point no. I and V are accordingly decided.
Point No. II
22. The question of award of interest on determined amount of compensation by the Tribunal is governed by the statutory provision contained in Section 171 of Motor Vehicles Act. The same is quoted herein below:-
"171. Award of interest where any claim is allowed.- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."
23. The reading of Section 171 of M.V. Act clearly indicates that while awarding the compensation in a claim petition by the Tribunal the tribunal may direct that in addition to amount of compensation simple interest shall also be paid at such rate from such date not earlier than the date of making the claim petition as it may specific in this behalf.
24. It is true that word "may" has been used which indicates that award of interest is discretionary. But in in later part of the section word "shall" has been used before words "as also be paid at such rate and from such date not earlier than the date of making the claim". In this case the interest has been awarded by the Tribunal but not from the date of claim Petition. The tribunal awarded interest prospectively and that too in the event of making default of payment within two months from the date of award.
25. The Hon'ble Supreme Court had an occasion to consider this controversy (even in absence of any specific provision in any statute for award of interest) in the light of the provision contained in Section 34 of Civil Procedure Code and also in the light of the provision contained in Section 3 of the Interest Act. It has been held by their Lordships in Thazhathe Purayil Sarabi and others v. Union of India and others, AIR 2009 SC 3098, that if the decree is passed in terms of the money it would be incumbent upon the court to award the interest. The reason considered by the Apex Court for it that because the amount due under money decree was actually payable to the plaintiff/claimant on the date of accrual of cause of action.,i.e, the date on which the payment of money become due and the person illegally withhold that money use it for his own purposes, therefore, the same has been paid in the form of interest in a suit for recovery of money. In other word, it could be said that person illegally withholding money shall be bound to pay the withhold money with compensation for withholding the same in the form of interest. . In para 16,17 and 18 the apex Court held as under:-
"16. It is, therefore, clear that the Court, while making a decree for payment of money is entitled to grant interest at the current rate of interest or contractual rate as it deems reasonable to be paid on the principal sum adjudged to be payable and/or awarded , from the date of claim or from the date of the order or decree for recovery of the outstanding dues. There is also hardly any room for doubt that interest may be claimed on any amount decreed or awarded for the period during which the money was due and yet remained unpaid to the claimants.
17. The Courts are consistent in their view that normally when a money decree is passed, it is most essential that interest be granted for the period during which the money was due, but could not be utilized by the person in whose favour an order of recovery of money was passed. As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of the right to utilise the money due, which has been, in fact, utilized by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed.
18.The only question to be decided is since when is such interest payable on such a decree. Though, there are two divergent views, one indicating that interest is payable from the date when claim for the principal sum is made, namely, the date of institution of the proceedings in the recovery of the amount, the other view is that such interest is payable only when a determination is made and order is passed for recovery of the dues. However, the more consistent view has been the former and in rare cases interest has been awarded for periods even prior to the institution of proceedings for recovery of the dues, where the same is provided for by the terms of the agreement entered into between the parties or where the same is permissible by statute."
26. This question was also considered by this Division Bench in the light of several authorities of Apex Court in FAFO NO. 6 0f 2009, Union Of India Vs. Ashok Kumar Pal, decided on 20.09.2012. Apart from this another Division Bench of this Court in Smt. Mayawati case (supra) also held that award of interest is mandatory in the light of provision contained in section 171 of the Act and in case this mistake is pointed out before the appellate court, the appellate court possesses power to pass orders awarding the interest in view of specific provision contained in Section171 of the Act. Therefore, the Tribunal has committed a manifest error in law by not awarded the interest.
27. Considering this aspect of the matter and keeping in view of the aforesaid judgments of Apex Court as well as of this Court it could be safely held that ordinarily the interest should be awarded by tribunals from the date of presentation of claim petition and till the actual payment is made. If the Tribunals are not awarding the interest as above and awarding interest from any other date, the Tribunals have to assign the cogent reasons for that.
28. The point No. II is accordingly decided Point No. III
29. It is true that petitioner No.1 Mohd. Usman Warsi stated on oath that her wife and children are not dependent upon him but they are dependent upon God. This statement does not conclusively prove that mother is not dependent upon the deceased. It is a fact to be noticed that in Indian society husband and wife are dependent to each other, so, it cannot be said that when husband is alive the wife would not be dependent upon him. Considering all these facts and the evidence on record, it is held that the mother, brother and sister of decease are legal heirs of the deceased. However, if out of these legal heirs somebody is found dependent upon the income of the deceased then those dependents would be entitled for compensation, but those legal heirs who are not dependent upon the deceased would not be entitled to compensation.
30. Therefore, we are of the view that parents of the deceased would be entitled to compensation in this case being dependent as well as legal heirs and legal representative of the deceased.
31. The Point No. III is accordingly decided Point No. IV
32. In view of the Supreme Court judgment in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Others, 2009 (6) SCC 121 and in another judgment of the Hon'ble Supreme Court in Shakti Devi Vs. New India Insurance Copmpany Ltd and Ors. 2011 (1) TAC 4 SC the deduction in the case of unmarried person towards the personal expenses ordinarily be taken to be one half specially when the dependent are parents. There is no evidence to show that brother and sisters were dependent upon the deceased. The father brothers and sisters of deceased are alive and are major. It has not been proved that other brother of the deceased were not earning members. It is on record that business carried out by the deceased was still going on. However it is stated by appellant No.1 on oath that there is substantial loss of income on account of the death of Imran Warsi. In Shakti Devi's case (supra) the deduction of personal expenses of deceased were reduced from 1/3rd to half in an appeal filed by claimants for enhancement of compensation.
33. Considering all these aspect of the matters, we are of the opinion that deduction towards personal expenses may be taken into account to the extent of one half of the income of deceased.
34. The point No. IV is accordingly decided.
Point No. VI
35. To apply the multiplier the Tribunal is required to consider the age of dependents legal heirs as well as of the person on whom they are dependent.
36. In this case the age of deceased mentioned in claim petition is 28 years. The date of birth of deceased mentioned in the income tax return ( filed by father of deceased) is 15.08.1964. As such the age of deceased comes to 33 years 5 months 15 days on 1.2.1998 (date of accident). It shows that age of petitioner has wrongly been mentioned in petition with oblique motive. The father of deceased stated on oath that his age is 60 years. In proof of his age he filed the copy of entries in voter list in which his age is mentioned as 64 years as on 1.1.1999. He did not stated about age of other petitioners. In voter list the age of other petitioners namely Bilqees Jahan (mother of deceased), brother of deceased Zeshan, sisters of deceased Bhuri, Rani, and Roomi is mentioned as 54,22,22,23,24 years respectively. There is no evidence on record to show that deceased was having twin brother and sister. It is also clear from Voter list that the same has been prepared after the date of accident. The variation of age of deceased and claimants-Appellants mentioned in voter list, statement on oath and in claim petition could not be reconciled by the petitioners from any cogent evidence. It is also worth notice that age shown in the voter list is in lessor side. Therefore, on the basis of evidence available on record we are of the opinion that the age of appellants No1 and 2, Mohd. Usman Warsi and Smt Bilqees Jahan is not less than 60 years and 55 years respectively on the date of accident.
37. It has been submitted from the side of the appellant that the dependency in this case should be determined on the basis of age of mother of deceased because she is lessor in age in comparison to age of the father of deceased. No authority has been brought on record to show that in such situation the application of multiplier should be on the basis of person who is lessor in age.
38. It is important to note that parents if comes in same bracket mentioned in second scheduled the application of multiplier will not be of any difficulty, but if mother and father according to their age fall in different bracket, as in the present cases the difficulty arises.
39. In such situation we are of the considered view that the multiplier should be applied according to bracket in which the father or mother of deceased fall in the lessor bracket.
40. In this case of the deceased was about 34 years of age. Admittedly parents of deceased are older than the deceased. Therefore, the multiplier would be applied according to age of the parents as we have already discussed above. In this case as per age the mother of deceased is in the bracket of age group of 55 to 60 and father in bracket of 60 to 65 years , therefore, in this case considering the age of mother the proper multiplier would be of 8 according to II scheduled.
Point No. VI is accordingly decided.
41. In view of the discussion made above, the income of the deceased is taken to Rs. 64,000/- per annum on the date of accident. After adding 30% of it towards future prospect it comes to Rs.83,200/- per annum. Thereafter, deducting one half of the amount towards personal expenses of the deceased the dependency comes to Rs.41,600/- per annum. The appropriate multiplier is of 8. The same is required to be applied while determining the compensation.
42. Accordingly the amount of compensation comes to Rs. 3,32,800/-(Rs. 41,600 x 8 = 3,32,800). The addition of Rs. 2000/- towards funeral expenses and Rs. 2500/- for loss of estate is also required to be made. As such the total compensation comes to Rs. 3,37,300/-. In our view this amount of Rs. 3,37,300/- is just and fair compensation in this case.
43. On the amount of compensation petitioners No.1 and 2 (parents only) shall also be entitled to pendente lite and future simple interest at the rate of 6% per annum.
44. No other point has been pressed or argued by the appellants.
45. In view of the above, the compensation deserves to be enhanced the appeal deserves to be partly allowed.
46. Hence, the appeal is partly allowed. The amount of compensation is enhanced from Rs. 1,50,000/- to Rs. 3,37,300/- with pendente lite and future simple interest at the rate of 6% per annum which shall be payable only to Appellants No.1 and 2, Mohd. Usman Warsi and Smt Bilquees Jahan.
47. The appeal of claimants-Appellants No.3 to 7 is dismissed and their claim is also dismissed. They shall not be entitled to any compensation.
48. The remaining amount of enhanced compensation with interest accrued thereon shall be deposited by National Insurance Company Ltd, Respondent No.2 before the Tribunal with in one month from the date of order passed in this appeal. The Tribunal will pay the amount equally to appellant/claimant No.1 Mohd. Usman Warsi and appellant No. 2 Smt. Bilqees Jehan. Mohd. Usman Warsi already received Rs.1,50,000/- so the half of the share payable to Mohd. Usman Warsi would be after adjustment of Rs.1,50,000. The half of the amount payable to Smt. Bilqees Jehan i.e.,Rs.1,68,650 with interest accrued thereon would be payable to her. Out of the amount payable to Smt. Bilqees Jehan, a sum of Rs. 1,50,000 with interest accrued thereon would remains in fixed deposit with some Nationalised Bank for the period of two years and the remaining amount would be payable by way of bank draft or through account payee cheque. The remaining amount payable to the appellant No.1 Mohd. Usman Warsi shall remain in fix deposit with some Nationalised Bank for period of two years. The Insurance Company/Respondent No.2 while depositing the remaining amount before the Tribunal would be entitled to adjust the amount already paid under the award of Tribunal.
49. There shall be no order as to costs.
(Hon'ble Vishnu Chandra Gupta, J.) (Hon'ble Devi Prasad Singh, J.) Order date:- 9th October, 2012 Ajay