1. Heard Sri Ram Singh for the appellants - original claimants and Sri Ramesh Singh for the respondents - Insurance company namely New India Insurance Company Limited.
2. By means of this appeal, the appellants challenge the judgment and order dated 10.4.2003 passed by Motor Accident Claims Tribunal, Allahabad, in M.A.C.P. No.880 of 1999 (Neeta Devi and others Vs. Naveen Rusia and others), whereby the Tribunal granted a sum of Rs.2,11,000/- with interest @ 7 per cent from the date of claim petition till the amount is deposited.
3. It is submitted by the counsel for the appellants, who are 9 in number, that the claimants had claimed a sum of Rs.15,00,000/-. The deceased was aged 32 years. He was a mason by profession and was earning Rs.3,500/- per month. He has left behind him, his widow, his 7 children and his mother aged 64 years.
4. It is submitted that the Tribunal has misdirected itself in considering the income of the deceased to be Rs.1,500/- though he was a skilled labourer and deducted 1/3rd for his personal expenses and granted multiplier of 17 and granted only Rs.2,000/- towards funeral charges and Rs.5,000/- under the head of loss of husband are the words used in the judgment.
5. The learned Counsel appearing on behalf of the appellants has assailed the award of compensation by urging that:
(i) No addition on account of future prospects was made;
(ii) The High Court erred in deducting 1/3rd of the amount towards personal expenditure without considering that the income of the deceased was extremely low, at Rs.1,500/- per month. A person earning a low income, who has a family to feed, would not spend 1/3rd of his income towards his personal expenditure; and
(iii) The rate of interested granted was 7% as awarded by the MACT be enhanced to 18 per cent.
6. The learned counsel for the Insurance company has made his oral submission namely that the amount awarded cannot be said to be so less in the year 1999 and it requires to be confirmed without any modification. The rate of interest is also granted properly and has further submitted that the appeal being in continuation of the litigation, he raises the issue of non-involvement of the vehicle though he has not filed any cross objection. He has heavily relied on the provisions of order 41 rule 33 of the Code of Civil Procedure and has contended that as held by this Court in the case of National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi and others, F.A.F.O. No.2389 of 2016, decided on 27.7.2016 and has contended that even in absence of filing any cross objection, this Court in order to do complete justice can reevaluate this issue of non-involvement of the vehicle and in the result exonerate the Insurance company of its liability. It is further submitted by Sri Ramesh Singh for the Insurance company that the Tribunal has granted just compensation and no interference is called for and the entire amount has already been deposited by the Insurance company. As against the demand of Rs.70,000/- for non-pecuniary amount, Sri Ramesh Singh has heavily relied on the order of this Court passed in Nanki Devi and others Vs. Ram Narayan Jaiswal and others, FAFO No.142 of 2005, decided on 13.2.2019 and has submitted that the interest granted was as per the prevailing rate of interest.
7. This amount even in the year of accident namely 1999 requires to be enhanced for the reasons mentioned herein below. The deceased was skilled labourer. The appellants are his legal heirs. The income of the deceased being a mason is considered as Rs.3,000/- per month even in the year 1999 as per the judgment of Sarla Verma to which he being a self employed person, a sum of 40 % be added to his income, therefore, his monthly income will be Rs.4,200/- out of which as he had more than 5 mouths to feed as per the judgment in Pranay Sethi, 1/5th will have to be deducted hence which would be Rs.840/- for his personal expenses which brings the figure to Rs.3,360/- for the family. The family would be entitled to multiplier of 16 as he was in the age group of 31 - 35. Hence, Rs.3360/- x 12 x 16, which is equal to Rs.6,45,120/- to which as he had 6 sons and one daughter namely 7 minor children a sum of Rs.20,000/- to each for loss of love and affection and Rs.70,000/- as per Pranay Sethi's judgment hence the family would be entitled to a sum of Rs.8,55,120/- which is rounded up to Rs.8,55,000/- with 9% rate of interest from the filing of the claim petition till the award of the Tribunal and thereafter @ 6% till the amount is deposited.
8. The appeal is in continuation of the claim and likewise if the claimants' claim can be enhanced without any appeal or cross-objection, the ground can be taken by the Insurance company namely that the accident did not occur with the said vehicle. This ground is re-appreciated and the issue is reconsidered in view of the decision of this Court in National Insurance Vs. Smt. Vidyawati (supra) and the principles enunciated therein, the converse will also apply and the appellate court will have power to decide the matter so as to do complete justice to the parties though appeal may not be preferred or cross-objection may not have been filed in its written form or the format prescribed under the Motor Vehicles Rules.
The accident occurred at about 09.00 p.m. when the deceased was coming to his home and when he reached the area of Dhoomanganj on G.T. road as soon as he reached at the road opposite Happy Home, a truck bearing number UP-92-V-171 came on the wrong side rashly and negligently from behind dashed the deceased. The deceased was shifted to the government hospital but had died on the spot. The post-mortem report was conducted on the dead body and his death was due to the accidental injuries. The respondent no.1 - Naveen Roosia had appeared and has stated that the said vehicle was in the name of Madhu Gupta wife of Sanjay Gupta and the said vehicle was insured with New India Assurance Company Limited. The owner of the vehicle filed his reply at 19-Ka, who has denied the accident having taken place but has accepted that the vehicle was owned by him and at the time of accident, Amar Singh son of Ranjeet Singh, who was having proper driving licence was driving the vehicle and was not negligent. The Insurance company filed its reply of total denial. They have even denied the factum of the vehicle being insured and has raised the issue that the vehicle was not involved in the accident. The Tribunal framed issue no.1. The claimants examined the widow of the deceased who had not seen the accident but PW2 Moti Lal, who had also not seen the accident. They have examined PW3 Vijay Kumar who has given vivid description of the accident and the way he has given the description, it supports the F.I.R. which has been given showing that the vehicle was involved. However, the number of the vehicle was not mentioned in the F.I.R. The chargesheet also did not mention the number of the bus just because the F.I.R. did not show the number of the vehicle, it cannot be held against the claimants when there is an eye-witness who deposes on oath with stand the oral cross-examination. PW3 was the person who had registered the F.I.R. and PW3 has shown the number of the vehicle. The owner and the driver and the Insurance company except bare averments have not proved that the accident did not occur with the said vehicle and now to raise this issue, the same is answered against the Insurance company by holding that the number not mentioned in the F.I.R. would not be fetal as the claimants by oral as well as cogent documentary evidence proved that the vehicle mentioned in the petition was the one which was involved in the accident and the driver of the said vehicle drew the vehicle rashly and negligently, thus, I am not persuaded to take a different view than that taken by the Tribunal. The said oral cross objection is rejected.
9. Unfortunately, though this submission is made by Sri Ramesh Singh for the respondent, it has not been even proved before the Tribunal that the vehicle was not involved in the accident and the finding is against the Insurance company, even before this Court, it has not been proved that the accident did not take place with truck No.UP-92-V-171. PW3 has proved the same by oral testimony and by the F.I.R. lodged by him. The accident occurred is also proved, from the evidence, it is proved that F.I.R. was lodged by PW3 - Vijay Kumar, son of Jugun Kishore, had given the F.I.R. on 28.10.1999 and, therefore, this submission of learned Advocate for the Insurance company is considered and is rejected.
10. This Court in FIRST APPEAL FROM ORDER No. - 656 of 2012 in (Smt. Swapna Das Gupta & Others.
Vs. Sri Rajiv Kapoor & Others) decided on 20.4.2017, on the issue of interest has opined as under:
23. "The rate of interest even in the year 2003 namely the date of judgment would be 9% as held by this Court in This takes us to issue of award of interest on amount awarded. It is submitted by learned counsel for claimant that accident occurred 3.1.1993 and Tribunal decided the matter on 29.9.2011 by granting 6% interest from the date of filing of claim petition and if the amount is not deposited within one month then 9% interest was awarded. It is further submitted that rate of interest as awarded by Apex court in the decisions cited by learned counsel for the claimant as 9% and Tribunal has erred in granting it at 6%. As against this learned counsel for the Insurance Company has submitted that appeal is of 1993, matter was dismissed in default number of times.
24. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-
11. "The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8% per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481. Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."
25. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9% interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.
26. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9% per annum which was challenged that it is on higher side. Court upheld said rate of interest.
27. In Shashikala and Others Vs Gangalak-shmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9% rate of interest from the date of claim petition till the date of realization.
28. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8% . Accident took place on 27.11.2016. It was held that 8% interest is on lower side and it should be 9%.
29. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6%. Court held that it is on lower side and it should be 9%.
30. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9% interest.
31. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15% interest which was reduced to 9% Gujrat High Court. Court held that it is on higher side and awarded 9% interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).
32. Unfortunately, it goes without saying that Motor Accident Claim matters could not have been dismissed in default as has been held by Apex court. However, on that count we do not think that Insurance Company can benefit as monies were lying with the Insurance Company and therefore, rate of interest as applicable as per recent trend and as per repo rate as per decision in National Insurance company Limited Vs. Chintan Arun Kumar Raval & Another, in First Appeal No.2440 of 2014 and other matter decided on 16.9.2014 by a Division Bench of High Court of Gujarat (comprising of Hon. Mr. Justice M.R. Shah and Hon.Dr. Justice K.J. Thaker), wherein it has been held "that it is a discretion of the Court to decide the rate of interest but has to be as per prevalent rate of interest which would be given by the banks at that time. The rate of interest shall be 9% from the date of filing of the claim petition till realization". Hence 9% rate of interest would have to be awarded."
11. In view of above, rate of interest in the present case namely question about rate of interest has been discussed in following decisions hence 7% awarded by Tribunal cannot be justified and in my view interest should be paid at 9% per annum for the period the claim petition was filed and as the appeal remained pending 6% thereafter.
12. This appeal is partly allowed. The claimants would be entitled to a sum of Rs.8,55,000/- with 9% rate of interest from the filing of the claim petition till the award of the Tribunal and thereafter @ 6% till the amount is deposited. The judgment and decree dated 10.4.2003 is modified to the aforesaid extent.
13. This Court is thankful to both the Advocates for getting this very old matter disposed of.
Order Date :- 27.2.2019 Irshad