Court No. - 37
Case :- FIRST APPEAL FROM ORDER No. - 1376 of 2021 Appellant :- Smt. Savitri And 5 Others Respondent :- The New India Assurance Co. Ltd. And 2 Others Counsel for Appellant :- Mayank Counsel for Respondent :- Vipul Kumar
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Subhash Chand,J.
1. Heard Sri Mayank, learned counsel for the appellant, Sri Vipul Kumar, learned counsel for the respondent and perused the judgment and order impugned.
2. By way of this appeal, the claimants have challenged the judgment and order dated 30.11.2015 passed by Motor Accident Claims Tribunal/Special Court, Mathura (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 346 of 2013 awarding sum of Rs.24,94,702/- as compensation to the claimants with interest at the rate of 7%.
3. The accident is not in dispute. The Insurance Company has not challenged the liability imposed on them. Hence, the only issue to be decided is, the quantum of compensation awarded. The details of facts except for deciding compensation are not narrated.
4. The main grievance for which this appeal has been preferred is non grant of any amount under the head of future loss of income though the date of accident is 4.6.2013. The date of award is 30.11.2015 namely after the judgment of the Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) 613 despite that no future loss has been considered by the Tribunal though the deceased was Junior Engineer in M.V.D.A., Mathura. It is submitted by the learned counsel for the appellants that despite the fact that PAN Card was projecting the age of the deceased which showed that he was born on 05.06.1966. The Tribunal took a fact finding exercise namely that the widow in her testimony conveyed that she was 46 years of age and that they were married in the year 1987. The Tribunal came to the conclusion that a husband has to be 3 and 4 years older to the wife and therefore, the Tribunal considered the age of the deceased to be more than 50 years. Sri Mayank, learned Advocate for appellants submitted that this finding is fallacious and is based on surmises and conjectures. It is submitted by learned counsel for the appellants that even if the said surmise is accepted which would mean that the age of the deceased was 3 & 4 years more than that of the widow, he would be below the age of 50 years and would fall within the age bracket of 46-50 years.
5. The next contention is that the multiplier of 11 granted by the Tribunal is bad. It is further submitted that the deceased was earning Rs.27,667/- per month and in June, 2013 after increase of Dearness Allowances, the income was Rs.28,848 per month. The Tribunal has considered the income to be Rs.3,01,176/- per year and deducted 13% as income tax deduction. Learned Advocate for the appellant has produced the tax slab for the Financial Year 2013-2014 (Assessment Year 2014-15) where the tax rate for the income Rs.2,00,000/- to Rs.5,00,000/- was 10% and, hence, according to him in view of the judgment of the Apex Court in Vimal Kanwar and Others Vs. Kishore Dan and others, 2013 (3) T.A.C. 6 (S.C.), 10% could be deducted as income tax from the income i.e. Rs.28,848/-. Therefore, the monthly income would come to Rs.26,000/- (round figure).
6. As far as deduction towards personal expenses of the deceased namely 1/4th is concerned, we do not disturb the same as held by the Tribunal as there are six dependants out of whom three are minors.
7. The submission that the Tribunal has not granted any amount towards future loss of income. Grant of future prospects will have to be traced back and reference can be had to the decision in General Manager, Kerala S.R.T.C., Trivandrum v. Susamma Thomas & Ors.,(1994) 2 SCC 176 wherein addition of future prospects was also calculated. The decision in Susamma Thomas (Supra) was referred in U.P.S.R.T.C. & Ors. v. Trilok Chandra & Ors.(1996) 4 SCC 362 which have been considered by the Apex Court in Sarla Dixit Versus Balwant Yadav AIR 1996 SC 1274 and the Apex Court has considered decision in Hardeo Kaur V/s. Rajasthan State Transport Corporation, 1992 2 SCC 567. The decision in Sarla Dixit has been considered to be good law in (1) Puttamma Vs. K.L.Narayana Reddy, AIR 2014 SC 706 (2) Raman Vs. Uttar Haryana Bijli Vitran Nigam Limited, Bijoy Kumar Dugar Vs. Bidyadhar Dutta, 2006 (3) SCC 242 : (3) Sarla Verma (supra) (4)R.K.Malik Vs. Kiran Pal, AIR 2009 SC 2506 (5)National Insurance Company Limited Vs. Pranay Sethi, AIR 2017 SC 5157 Raj Rani Vs. Oriental Insurance Company Limited, 2009 (13) SCC 654. We have gone through the decisions in those days referred to herein above and the judgment of Gujarat high court in Ritaben alias Vanitaben Wd/o. Dipakbhai Hariram and Anr. v/s.Ahmedabad Municipal Transport Service & Anr., 1998 (2) G.L.H. 670, wherein, the Court has observed as under:
"para-7: It is settled proposition of that the main anxiety of the Tribunal in such case should be to see that the heirs and legal representatives of the deceased are placed, as far as possible, in the same financial position, as they would have been, had there been no accident. It is therefore, an action based on the doctrine of compensation.
para-8: It may also be mentioned that perfect determination of compensation in such tortuous liability is, hardly, obtainable. However, the Tribunal is required to take an overall view of the facts and the relevant circumstances together with the relevant proposition of law and is obliged to award an amount of compensation which is just and reasonable in the circumstances of the case.
para-10: Even in absence of any other evidence an able bodied young man of 25 years, otherwise also presumed to earn an amount of Rs.1000/- or more per month, on that basis the prospective income could be calculated by doubling the one prevalent on the date of the accident, which is required be divided by half, so as to reach the correct datum figure which is required to be multiplied by appropriate multiplier. Even taking a conservative view in the matter, the deceased would be earning not less than an amount of Rs.1000/- per month and considering the prospective average income of Rs.2000/- and divided by half, would, obviously come to Rs.1500/."
8. Thus even in year of accident, the addition of future prospects was not ruled out, just because tribunals in Uttar Pradesh were not granting future loss, it cannot hold field where the decision of Apex Court is otherwise as demonstrated with decision though of persuasive value of Gujarat High Court referred herein above wherefore, the submission of learned counsel for the appellant that no amount under the head of future loss of income was admissible in those days, will have to be considered. The decision of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021 SC 359 will have to be looked into. Therefore, we will have to consider the same in the light of the recent decisions as well as the decisions of the Apex Court prevailing.
9. Even in the earlier days, the factors to be considered for issuing quantum of compensation reads as follows:
i. To give present value, a reasonable deduction or reduction is required as lump sum amount is given at a stretch under the head of prospective economic loss;
ii. The tax element is also required to be considered as observed in the Gourley's case (1956 AC 185).
iii. The resultant impairment/death on the earning capacity of the claimant/claimants .
iv. That the amount of interest is awarded also on the prospective loss of income.
v. That the amount of compensation is not exemplary or punitive but is compensatory.
10. We would go by the data available on the record also namely the PAN Card of the deceased which can be said to be a Government document and admissible in evidence unless proved to depict uncorrected facts. It would go to show that his age was 47 years and we recompute the amount as according to Sri Vipul Kumar, learned counsel for the respondent-Insurance Company, the compensation awarded by the Tribunal is just and proper and does not require enhancement. While perusing the judgement, it is very clear that the Tribunal has not considered the judgment of the Apex Court in Sarla Verma (Supra) nor has it considered the earlier judgments which were focusing on future loss of income to be paid. We grant 30% addition towards future loss of income as the deceased was below the age of 50 years and was in regular service. As far as multiplier is concerned, it would be 13 as the deceased was in the age bracket of 46-50. As far as amount under the head of non-pecuniary damages are concerned, it should be Rs.70,000/- + 10% increase in every three years in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. Therefore, we would grant Rs.1,00,000/- under the head of non pecuniary damages.
11. Hence, the total compensation payable to the appellant is computed herein below:
i. Income Rs.26,000/- per month
ii. Percentage towards future prospects : 30% namely Rs.7800/-
iii. Total income : Rs. 26,000 + 7800 = Rs.33,800/-
iv. Income after deduction of 1/4th : Rs.25,350/-
v. Annual income : Rs.25,350 x 12 = Rs.3,04,200/-
vi. Multiplier applicable : 13
vii. Loss of dependency: Rs.3,04,200 x 13 = Rs.39,54,600/-
viii. Amount under non pecuniary damages : Rs.1,00,000/-
xi. Total compensation : 40,54,600/-
12. 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."
13. No other grounds are urged orally when the matter was heard.
14. 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 the amount is deposited. However, for the period of delay namely 191 days, interest shall not be payable by the Insurance Company in view of the decision of the Apex Court in Lakkamma and Others Vs. The Regional Manager M/s United India Insurance Co. Ltd., AIR 2021 SC 3301. The amount already deposited be deducted from the amount to be deposited.
15. 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.
16. 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.
17. 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.
18. Record and proceedings be sent to the Tribunal.
Order Date :- 23.9.2021 DKS