This appeal has been preferred against the award dated 30.9.2004 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 2, Unnao (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 157 of 2000 (Smt. Brij Rani Jain and Ors. vs. Sardar Jagtar Singh and another), whereby a sum of Rs.11,45,800/- has been awarded as compensation to the claimant-respondents 1 to 5 on account of death of one Sri Ramesh Chandra Jain in the motor accident occurred on 11.2.2000 in Kanpur Nagar.
The brief facts of the case, in short, are that deceased Ramesh Chandra Jain aged about 47 years on his scooter having Registration No. U.P.35-A/4979 was going to Bakarganj crossing Transport Nagar, P.S- Babupurva, District Kanpur City on 11.2.2000 at 4.45 P.M. A TATA Mini Truck having Registration No. U.P. 32-Z/0869 own by respondent no. 1, Sardar Jagtar Singh and driven by Mahendra Singh hit the scooter of the deceased from its back. On account of this accident Ramesh Chandra Jain succumbed to the injuries on spot. Mini truck was caught with the help of the public and police at some distance from the place of the accident.
Claim petition was preferred by the claimant-respondents 1 to 5 before the Tribunal. The Insurance Company and the owner of the mini truck contested the claim by filing written statements.
The Tribunal framed issues in regard to the accident, negligence of the driver, death of Ramesh Chandra, insurance of the mini truck, validity and effectiveness of the driving license of the driver of mini truck, payment of compensation and its liability and entitlement.
The parties adduced evidence in support of their claim. No oral evidence has been adduced by any of the opposite parties. The Tribunal after considering the pleadings and evidence available on record came to the conclusion that the accident occurred due to sole negligence of the driver of the mini truck. The mini truck was insured with the Appellant-Insurance Company and the driver of the mini truck Mahendra Singh was having valid and effective driving licence for plying the heavy goods vehicle at the time of accident. Consequently, the Tribunal awarded compensation of Rs.11,45,800/- and liability was fastened to pay the compensation upon the Appellant-Insurance Company.
Being aggrieved by the impugned award, the present appeal has been preferred by the Appellant,Insurance Company mainly on the following grounds.
(1) That it is a case of contributory negligence and the Tribunal has not appreciated the evidence in right prospective on this count.
We have considered the evidence available on record. In the claim petition, it has been categorically pleaded that the mini truck hit the scooter from its back. The First Information Report was lodged within 45 minutes after the accident by one Lalit Bihari Goal, an eye witness who has been examined as P.W.2 in the case by the Claimant-Respondent. In the F.I.R., it has been categorically mentioned that the mini truck hit the scooter of the deceased from its back. The statement of P.W.2 Lalit Bihari Goal finds corroboration from the FIR lodged by him at police station just after 45 minutes of the accident i.e. at 5.30 p.m. Our attention has been drawn by the learned counsel for the appellant that there is variation in the evidence of P.W.2 in regard to the hitting of the Scooter by front wheel of the mini truck. According to oral statement of P.W.2 mini truck's right wheel hit the scooter, but from perusal of the site plan it appears that left wheel of mini truck hit the scooter.
The alleged discripency is not very material when it is a fact that the mini truck hit the scooter from its back. As such, the hitting to scooter by right or left front wheel of the mini truck is not very significant and is not sufficient to discard the evidence of this witness.
So far as the determination of the negligence of the driver is concerned, the Tribunal after considering all these aspects and came to the conclusion that the mini truck hit the scooter from its back, hence the driver of the mini truck is solely negligent in causing the accident. We do find any illegality or perversity in the findings recorded by the Tribunal on this count.
The second limb of arguments of learned counsel for the appellant is, that the amount of Income Tax paid by the deceased ought to have been deducted from the total income of the deceased while considering the income of the deceased for the purpose of computation of compensation. It has been submitted that in this case, the total income of the deceased was shown as Rs. 1,39,900/- in the Income Tax Return filed by the claimant-respondent no.1 for the financial year1999-2000 and assessment year 2000-2001. A sum of Rs. 16,418/- as income tax was shown to be paid by the deceased in that relevant year, the net income received on the basis of the income tax return for the financial year 1999-2000 would be Rs. 1,23,482/-. Therefore, the amount of compensation is liable to be reduced to that extent.
The Tribunal determined the income of the deceased for financial year 1999-2000 at Rs. 1,39,900/- and after dividing it by 12, monthly income was found to be of Rs.11,600/- but while making it in round figures his income was calculated at Rs.11,000/- per month, which shows that a sum of Rs. 600/- was reduced while computing the monthly income. The Tribunal after calculating the monthly income of the deceased and after deducting 1/3 amount of personal expenses, monthly dependency was determined at Rs.7300/- for his family members. As such annual dependency was fixed at Rs. 87,600/-. After applying the multiplier of 13 in terms of II Schedule the compensation of Rs. 11,38,800/- was determined. Besides this, a sum of Rs. 5000/- as consortium and Rs.2000/- for funeral expenses has also been awarded. As such, the total compensation of Rs. 11,45,800/- has been awarded to the claimant-respondents.
It has been submitted by the counsel for the claimant-respondent that in income tax return the tribunal overlooked the savings shown by the deceased and did not add in the income of the deceased.
From the perusal of the income tax return it appears that the deceased had shown savings under section 88 of Income Tax Act in the form of investment in ULIP and LIC. A Tax exemption of Rs.2075/- was granted to the deceased as is evident from return of Income Tax. The exemption limit in Financial year 1999-2000 was of Rs 50000/-.Tax slab after exemption limit the income up to Rs.10000/ was taxable at the rate of 10% and thereafter income till next Rs.90000/ [150000-60000=90000] rate of the tax was 20%. It shows that deceased was in the tax slab of 20% because the taxable income shown in return is of Rs.139900/. Considering the rebate of Rs. 2075/- the saving under section 88 of I.T. Act would be of Rs.10375/-. Therefore Rs.10375/- ought to be added in the income of Rs.139900/- shown in the return of Income Tax for calculation of compensation in this case. After addition of such income total income as per return of Income Tax comes to Rs.150275/-.
From the calculation made by the tribunal it appears that instead of taking income of Rs.150275/; calculate the compensation treating the income of deceased at Rs.139000/-. As such tribunal has not taken the income of Rs.10375/- while computing the compensation. Not only this the tribunal further reduce the annual income to the extent of Rs.900/-p.a. and taken into consideration the income at Rs.139000/ as against R.139900/ shown in income tax return. The Tribunal after dividing it by 12 calculated the monthly income of the deceased at Rs 11600/- but further reduced it for computation purposes to Rs. 11000/- and after deducting 1/3 amount towards own expenses of deceased fix dependency of Rs. 7300/- instead of Rs.7333.33P and than calculated annual dependency of Rs.87600/-.
It all transpire that a total amount of Rs. 18875/- per annum [as per calculation shown here Rs.900 +10375 +7200 (600x12)+ 400 (12x33.33) =18875] has been reduced while calculating the compensation which is more than the amount of income tax paid by the deceased. On this count the exclusion of Income tax paid by the deceased to the extent of Rs.16418/- could not be of any significance and would not be a ground to reduce the amount of compensation determined by the tribunal.
Moreover in view of the latest pronouncement of Hon'ble Supreme Court reported in(2012) 6 SCC 421 Santosh Devi v. National Insurance Co. Ltd and others where in the earlier judgment of Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and others,AIR 2009 SC 3104 has been reconsidered and it was held that even in the cases of the private individual, professionals, employees on fixed pay, businessman, etc enhancement up to 30% of the income may be considered by the Tribunal.
Therefore, we are of the firm opinion that there is no force in the submissions made by counsel for the Appellant-Insurance Company so far it relates to quantum of compensation .
The third limb of the argument of the learned counsel for the appellant relates to penal interest. In this case, the Tribunal has awarded the compensation along with pendente-lite and future simple interest at the rate of 9%, which was payable within one month from the date of filing of the claim petition and in case of default, the rate of interest would be increased at the rate of 12%.
This controversy is covered by the judgment of Hon'ble Supreme Court reported in 2004 (2) SCC page 370 (National Insurance Company vs. Keshav & Ors.), the relevant paragraph 13 of which is reproduced herein below:-
"Though Section 110-CC of the Act (corresponding to Section 171 of the new Act)confers a discretion of the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110-CC of the Act or Section 171 of the New Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal".
In view of the aforesaid legal proposition the imposition of penal interest from the retrospective date would not be legal and is liable to be struck off.
Therefore this appeal deserves to be allowed in part and the amount of compensation determined by the tribunal would be payable with pendente lite and future simple interest at the rate of Rs. 9%.
No other point was pressed or argued by the learned counsel for the appellant.
The appeal is partly allowed. The imposition of penal interest on default of payment of compensation with in a month from the date of award at the rate of interest of 12% from retrospective date is set a side. The compensation of Rs.11,45,800/- would be payable by the Appellant/Insurance Company with pendente-lite and future simple interest of 9% per annum. Accordingly the impugned award is modified to that extent .
The appellant-Insurance company is directed to deposit the entire compensation amount within one month from the date of this order before the Tribunal after adjusting the amount already in deposit made by the appellant-Insurance Company. The statutory amount deposited or any other amount deposited with this court be remitted forthwith to the tribunal but not later than one month from today. The tribunal will disburse the amount of compensation to the claimants in terms of the award. Registrar of this Court shall take fallow up action There is no order as to costs.
(Hon'ble Vishnu Chandra Gupta J.) (Hon'ble Devi Prasad Singh J.) Dated: 11th , September 2012 GSY