Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 1418 of 2009 Appellant :- Smt. Rekha And Others Respondent :- Sachin Chawala And Others Counsel for Appellant :- Sohan Lal Yadav,Alok Kumar Yadav,Ashwini Kumar Singh Counsel for Respondent :- Rajesh Kumar,Vidya Prakash Singh Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Ashwini Kumar Singh, learned counsel for appellant and Sri Rajesh Kumar, learned counsel for Insurance Company respondent.
2. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellants, being aggrieved by judgment and award dated 24.1.2009 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 10, Ghaziabad in MACP. No.56 of 2007.
3. The accident is not in dispute. The issue of negligence is decided in favour of the appellant herein. The Insurance Company has not challenged the liability imposed on them by the Tribunal. The only issue to be decided is the quantum. The issue is whether the Tribunal could have deducted HRA, the Tribunal did nto grant amount under the head of future loss of income though he was a police constable and was having a Government job.
4. It is submitted by learned counsel for the appellant that the Tribunal has considered his income Rs.8,251/- per month which is unjust as his pay packet was Rs.10,112/- per month and deduction of Rs.1,861/- on the head of HRA could not have been made in view of the judgment of Apex Court in National Insurance Company Limited Versus Indira Srivastava, 2007 LawSuit(SC) 1322 and the recent decision of the Apex Court which has held that HRA cannot be deducted only income tax can be deducted. Hence, the amount which has to be considered would be Rs.10,112/- per month as no income tax was payable on total income of Rs.1,20,000/- in the year 2006 i.e. the year of accident. The multiplier of 16 was granted as he was aged about 35 years. He was survived by three dependents. It is submitted that the deduction towards personal expenses should be 1/3rd and not more.
5. It is submitted that the deceased being 35 years of age at the time of accident, the multiplier of 11 granted by the Tribunal requires to be enhanced and multiplier of 16 requires to be granted and to it Rs.1,00,000/- requires to be granted as non pecuniary damages.
6. It is submitted by Sri Rajesh Kumar, learned counsel for the respondent- Insurance Company that the income which has been granted does not require any interference. It is submitted that the future income has not been ascertained and future prospects has rightly not been granted.
7. As per the judgment in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 the amount requires to be re-valuated. The income of the deceased would be Rs.10,112/- out of which no income tax would have to be deducted. The amount which has to be considered will be Rs.10,000/- x 12 to which Rs.5,000/-x 12 will have to be added looking to the age of the deceased to be below 40 years. He was survived by three dependents. The deduction towards personal expenses should be 1/3rd and not more. Hence, Rs.15,000/- x 12 out of which 1/3rd will have to be deducted, hence the datum figure would be Rs.18,00,000/- to which Rs.70,000/- will have to be added under the head of non pecuniary damages.
8. Counsel for the respondent has further submitted that amount requires to be added as per Uttar Pradesh Motor Vehicles Rules, 1998 (hereinafter referred to as 'Rules') and the interest cannot be paid as prayed for namely 18% and it should be at 7% on the enhanced amount and the amount which has already been awarded.
9. The rate of interest will have to be 9% and I am unable to accept the submission of learned counsel for the respondent that the Rules will apply. A Division Bench of Lucknow Bench in F.A.F.O. No. 199 of 2017 (National Insurance Company Limited Vs. Lavkush and another) decided on 21.3.2017 have interpreted the Rules, which has been followed by this Court time and again, will enure for the benefit of the appellant and, therefore the rate of interest would be 9% as held in catena of decision of this High Court.
10. 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 claimants would be entitled to Rs.18,70,000/- with 9% rate of interest from the date of filing of the claim petition till the amount is deposited. The difference amount be deposited by the Tribunal within 12 weeks. The amount already deposited be deducted from the amount to be deposited.
11. This Court is thankful to both the counsels to see that this very old matter disposed of.
Order Date :- 30.4.2019 Mukesh