Hon'ble Rohit Ranjan Agarwal,J.
1. Heard learned counsel for the claimants-appellants and Sri Pawan Kumar Singh, learned counsel for the respondent no. 4.
2. None has appeared on behalf of the defendants-respondent nos. 1 to 3 despite service.
3. By means of this first appeal from order, the claimants-appellants, Smt. Heema Gill @ Hema Gill and her son-Aadi Gill are seeking enhancement of amount of compensation awarded by M.A.C.T./Addl. District Judge, Court No. 8, Saharanpur in M.A.C.P. No. 244 of 2015 (Smt. Heema Gill @ Hema Gill and Another Vs. Ashish Kumar and 3 others) for the death of one Vikram Gill @ Vikram Gill husband of claimant-appellant no. 1 and father of claimant-appellant no. 2.
4. The facts of the case are that on 29.6.2015 at about 6 A.M. while deceased-Vikram Gill who was aged about 42 years was going on his Scooter (Activa) bearing registration no. U.P. 11P-5256, his Activa was hit from behind by a Truck Container bearing registration no. R 58-3886 (hereinafter referred to as the "offending vehicle") which was being driven rashly and negligently by it's driver near P.S. Kutubsher, District Saharanpur causing fatal injuries to the deceased who died during treatment in Government Hospital Saharanpur on the same day.
5. The written report of the incident was lodged at P.S. Kutubsher on the basis of which case crime no. 225 of 2015, under Sections 279 and 304A IPC was registered. The offending vehicle was seized by the police and the deceased's body was sent to postmortem. The claimants-appellants who are the heirs of the deceased filed M.A.C.P. No. 244 of 2015 before M.A.C.T./Addl. District Judge, Court No. 8, Saharanpur claiming a sum of Rs. 84,70,000/- as compensation and Rs. 50,000/- towards interim compensation for the death of Vikram Gill as a result of the injuries sustained by him in an accident on 29.6.2015 due to rash and negligent driving of the driver of the offending vehicle.
6. The claimants-appellants' claim was contested by the respondent nos. 1 to 3 denying the allegations made in the claim petition. The respondent no. 4, Magma H.D.I. G.I.C. Limited also filed a written statement under Rule 24B of Chapter IV of The Patents Rules, 2003 denying the allegations made in the claim petition and in the additional pleas, respondent no. 4 stated that the driver of the Truck Container did not possess a valid driving license on the date of occurrence and the other documents pertaining to the vehicle namely registration fitness certificate permit and insurance policy were neither valid nor effective at the time of the incident. The vehicle was not being driven as per the terms and conditions of the insurance policy. The parties also adduced oral as well as documentary evidence in support of their respective claims before the tribunal to which we shall refer as and when the context so requires.
7. The M.A.C.T after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record allowed the claim petition in part and awarded a sum of Rs. 6,82,000/- as compensation to the claimants-appellants. The tribunal held that the deceased at the time of his death was aged about 42 years and his personal income was Rs. 2,16,000/- and after deducting 1/3rd amount from his personal income amounting to Rs. 72,000/- which the deceased would have spent towards his living and personal expenses, he would have spent Rs. 48,000/- per year on his family. By applying the multiplier of 14, the tribunal calculated the loss of dependency at Rs. 6,72,000/- and further awarded sums of Rs. 2500/-, 5000/- and 2500/- respectively under the conventional heads of funeral expenses, loss of consortium and loss of estate. Notice may be taken to the fact that none of the defendant-respondent have preferred any appeal against the impugned judgment and award. In fact none has appeared before us on behalf of the respondent nos. 1 to 3 despite service.
8. Learned counsel for the appellants has challenged the impugned judgment and award on the following grounds :
(i) The tribunal committed a patent error of law in calculating the loss of dependency by taking into account the agricultural income of the deceased instead of his income of Rs. 1,20,000/- per year from the business or professional income.
(ii) The tribunal has failed to award any amount towards the future prospective.
(iii) The amount awarded under the conventional heads is too meager and not in consonance with the directions given by the Apex Court in the Constitutional Bench' decision referred in the case of National Insurance Company Limited Versus Pranay Sethi and Others reported in 2017 (4) T.A.C. 637 (S.C.).
(iv) The interest has been awarded erroneously at the rate of 7% in place of 9%.
9. Sri Pawan Kumar Singh, learned counsel appearing for the respondent no. 4 has made submissions in support of the impugned judgment and award and further submitted that Rule 220A of the Uttar Pradesh Motor Vehicle Rules 1998 clearly provides that the rate of interest shall not exceed 7% and hence the tribunal did not commit any illegality in awarding interest at the rate of 7%.
10. After having heard the learned counsel for the parties present and perused the impugned judgment and award as well as the law reports cited before us by the learned counsel for the parties, we find that there is force in the submission made by the learned counsel for the appellants qua ground nos. 1, 2 and 3.
(i) Coming to the first ground of challenge, the tribunal while calculating the loss of dependency erred in taking into consideration the deceased's income from the agricultural property despite of his noticing that the deceased was earning Rs. 1,20,000/- per annum from business or profession. In our opinion while calculating the loss of dependency, the income from business or profession ought to have been made the basis. Thus, we hold that the deceased was earning Rs. 1,20,000/- per annum and not Rs. 72,000/- as held by the tribunal.
(ii) Coming to the second ground of challenge, we find that although Apex Court in the case of National Insurance (supra) has held that while determining the income, an addition of 25% of the established income should be made where the deceased is aged between 40 to 50 years but the tribunal had failed to award any amount towards the future prospect. In this case the deceased at the time of his death was aged about 42 years and was self-employed and earning Rs. 1,20,000/- per annum from business or profession. We therefore, add 25% of the established income of the deceased towards future prospect and hold that the annual income of the deceased was Rs. 1,50,000/- per annum (25% of Rs. 1,20,000/-). After deducting 1/3rd amount towards the living and personal expenses of the deceased, he would have contributed Rs. 1,00,000/- to his family.
(iii) Coming to the third ground of challenge, we find that there is merit in the said ground also. In sub-paragraph (viii) of paragraph 61 of the judgment rendered by the Apex Court in the case of National Insurance (supra) has held that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. Thus, in our opinion, the amount awarded by the tribunal under the conventional heads are too meager and not in consonance with the guildelines laid down by the Apex Court in this regard in National Insurance (supra). We accordingly awarded Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively under the conventional heads namely, loss of estate, loss of consortium and funeral expenses.
(iv) The last ground at which the learned counsel for the appellants has challenged the impugned judgment and award is that tribunal ought to have awarded interest at the rate of 9% per annum on the awarded amount of compensation, we do not find any merit therein in view of Rule 220A of the Uttar Pradesh Motor Vehicle Rules 1998.
11. We accordingly proceed to recalculate the compensation in the light of the aforesaid findings. As noted above, the deceased was earning Rs. 1,20,000/- p.a. less tax. By adding 25% towards future prospects as the deceased was between the age of 40 to 50 years, the deemed annual income of the deceased would be Rs. 1,50,000/- p.a. (1,20,000/- + 25% of Rs. 1,20,000/-). After deducting 1/3rd amount from his annual income i.e. 1,50,000/- towards the living and personal expenses of the deceased, his contribution to the family is determined as Rs. 1,00,000/- p.a. By applying the multiplier of 14, the total loss of dependency is assessed at Rs. 14,00,000/-. We further award a sum of Rs. 15,000/- towards funeral expenses, Rs. 40,000/- under the head of loss of consortium and Rs. 15,000/- towards loss of estate. We accordingly increase the compensation awarded to the claimants-appellants by the Tribunal from Rs. 6,82,000/- to Rs. 14,70,000/-. The claimants-appellants shall further be entitled to interest @ 7% p.a. on the enhanced amount of compensation from the date of filing of the claim petition till the actual payment is made.
12. The appeal is allowed in part.
13. The impugned judgement and award stand modified to the extent indicated hereinabove.
14. The parties shall bear their respective costs.
Order Date :- 28.11.2019 SA