1. Heard Sri Satendra Nath Rai, learned counsel for the appellants and Sri Ashish Kumar Srivastava, learned counsel for respondent No.3.
2. This appeal is directed against an award dated 15th October, 2015 passed by learned Motor Accident Claims Tribunal (hereinafter referred to as "the Tribunal")/ District Judge, Lakhimpur Kheri in M.A.C.P. No.351 of 2013 titled as Smt. Poonam Gupta and others vs. Awnish and others.
3. The brief facts as born out from the record, are that on 08th August, 2013, Sri Rahul Gupta husband of appellant No.1 and father of appellants No.2 and 4 died in road accident when he was traveling on motorcycle bearing Registration No. UP 31 AB 0824. While returning back from Mohammadi between 5:30/06:00 AM/PM when he reached near Dharm Sabha Inter College, a truck bearing Registration No. UP 31 T 2998 hit the motorcycle, the said truck was being driven in rash and negligent manner and at a fast speed, as a result of which Sri Rahul Gupta fell down and received injuries. The deceased was taken to District Hospital, Lakhimpur, where he succumbed to his injuries.
4. The appellants, being the legal representatives of Rahul Gupta, filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), for award of compensation to the tune of Rs.21,90,000/- (twenty lacs ninety thousand only) along with interest. The appellants/petitioners pleaded that the accident was caused due to rash and negligent driving of truck bearing Registration No. UP 31 T 2998 by Ramesh Kumar Bharti; at the time of his death, the age of deceased was 38 years, the deceased was selling the goods on commission basis with Gupta Powder Agency Lakhimpur and he was earning Rs.10,000/- per month.
5. Respondents No.1 and 2 (owner and driver of the offending vehicle respectively) filed written statement and denied the allegations made in the petition. It was denied that the accident was caused due to negligent driving by respondent No.2 and claimed that the accident occurred because of negligent driving of the deceased and deceased was not having valid driving license. Respondent No.3/The New India Assurance Company filed a separate written statement and denied the allegations made in the petition. It was alleged that the driver was not having a valid driving license at the time of accident, the motorcycle was being driven in violation of the traffic rules and the accident was not caused due to negligence of the driver of truck.
6. On the pleadings of the parties, the Tribunal framed the following issues:-
"1- D;k fnukad 08-08-2013 dks le; 05-30 o 6-00 cts ds e/; nsodyh&y[kheiqj ekxZ ij /keZ lHkk b.Vj dkyst ds ikl eksVj lkbfdy la[;k ;w0ih0 31 ,ch 0824 ftldks e`rd cgqr dh /kheh o lko/kkuh xfr ls pyk jgk Fkk] es ihNs ls vk jgs Vªd la[;k ;w0ih0 31 Vh 2998 ftldks mldk pkyd rsth o ykijokgh ls pyk jgk Fkk] eksVj lkbfdy esa VDdj ekj nh ftlls jkgqy xqIrk dks xEHkhj pksVs vk;h ftlls ifj.kkeLo:i mldh nkSjku mipkj vLirky esa e`R;q gks x;h\ 2- D;k dher nq?kZVuk ds le; iz'uxr okgu Vªd la[;k ;w0ih0 31 Vh 2998 foi{kh la[;k&3 chek dEiuh ds ikl chfer Fkk] rFkk chek dh 'krksZa ds O;frdze esa ugh pyk;k tk jgk Fkk\ 3- D;k iz'uxr nq?kZVuk ds le; nq?kZVuk dkfjr djus okyk okgu Vªd la[;k ;w0ih0 31 Vh 2998 ds pkyd ds ikl oS/k ,oa izHkkoh pkyu vuqKfIr rFkk okgu Lokeh ds ikl okgu ls lacaf/kr oS/k ,oa izHkkoh dkxtkr Fks\ 4- D;k ;kfpdk esa vko';d i{kdkjksa dk nks"k gS\ ;fn gka rks izHkko\ 5- D;k ;kphx.k izfrdj ikus ds vf/kdkjh gS\ ;fn gka rks fdruk vkSj fdlls\"
7. In support of their claim, the appellants examined Smt. Poonam Gupta as PW-1, Manoj Kumar Gupta as PW-2 and Arpit Gupta as PW-3. Respondent No.1 produced some documents.
8. After considering the evidence adduced by the parties, the Tribunal decided issue No.1 in affirmative and held that the accident was caused due to rash and negligent driving of the truck by Ramesh Kumar Bharti. Issues No.2, 3 and 4 were also decided in favour of the appellants. While deciding issue No.5, the Tribunal adverted to the statements of the witnesses examined by the appellants. In cross-examination of Arpit Gupta (PW-3), proprietor of Gupta Powder Agency, he could not state that what was the income of the deceased, how much commission was being paid to the deceased Rahul Gupta. Hence, the Tribunal assumed the income of the deceased Rahul Gupta at Rs.3,000/- per month. The Tribunal was also of the view that the deceased would have incurred 1/3rd of his income on him and the remaining 2/3rd income was to be incurred on the dependents. The Tribunal found the age of the deceased as 38 years, he was between the age of group of 35 to 40 years. The Tribunal then applied the multiplier of sixteen and passed an award for Rs.3,91,000/- together with interest @ 7% per annum from the date of filing of petition till realization.
9. Learned counsel for the appellants urged that the deceased Rahul Gupta was aged about 38 years at the time of accident and income of the deceased being Rs.3,000/- per month as assessed by the Tribunal, are not being disputed by the appellants. Even otherwise, considering the material available in the record of the Tribunal and the evidence led by the parties during the course of inquiry, this Court is not inclined to disturb the said findings.
10. Learned counsel for the appellants contended that the Tribunal has wrongly deducted 1/3rd of the income towards expanses of the deceased.
11. Learned counsel for the appellants also contended that the future prospects have not been awarded by the Tribunal. He went on submitting that in view of judgment in 'National Assurance Company Ltd. vs. Prenay Sethi and others', 2017 (4) TAC 673 (S.C.), the appellants are entitled to the future prospects, the appellants are entitled to loss of consortium of Rs.40,000/-. He further submitted that the appellants are also entitled to loss of estate to the tune of Rs.15,000/- and funeral expanses of Rs.15,000/- instead of Rs.2,000/- as awarded by the Tribunal.
12. Learned counsel for the appellants also submitted that the appellants are entitled to the compensation along with interest @ 9 per cent per annum as per law laid down in 'Municipal Corporation of Delhi vs. Association of Victim', (2011) 4 SCC 481.
13. On the other hand, learned counsel for the respondent/insurer submitted that the appellants are not entitled to the compensation as claimed in the petition. He also submitted that the appellants are not entitled to the interest @ 9 per cent per annum on the amount of compensation and the award passed by the Tribunal does not call for any interference.
14. I have carefully considered the submissions made by learned counsel for both the parties and I have also carefully perused the material available on record.
15. It has been observed elsewhere, and it bears repetition to note in the present context, that India is one of the several countries with an unduly high rate of road accidents resulting in death, injury or damage, giving rise to claims for compensation brought before the Tribunals by the victims or their next of kin. The law on the subject of compensation has been codified by inclusion of necessary provisions in the MV Act, including on the principle of fault liability (under Section 166). The decision to make an appropriate award of compensation in each case is entrusted in the hands of the tribunal. Whilst a simplified procedure for award of compensation "on structured formula basis" was introduced by insertion of Section 163A, by amending Act no.54 of 1994 (w.e.f. 14.11.1994) wherein it is restricted and controlled by the method indicated in the Second Schedule, in claim cases arising out of fault-liability principle, the legislative guidance through the provision contained in Section 168 is simply that the tribunal is expected to determine such amount of compensation as appears to it to be "just".
16. In Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another', (2009) 6 SCC 121, the Hon'ble Supreme Court after referring to a number of precedents including the judgments in 'U.P. State Road Transport Corporation vs. Trilok Chandra', 1996 ACJ 831 (SC); 'Mance vs. British Columbia Electric Railway Company Ltd.', (1951) AC 601 and 'Davies vs. Powell Duffryn Associated Collieries Ltd.', (1942) AC 601 and after considering various factors relevant for determining the compensation payable in cases involving motor accidents, noticed apparent divergence in the views expressed by the Hon'ble Supreme Court in different cases. The Hon'ble Supreme Court made a sanguine endeavor to simplify the determination of claims by specifying certain parameters.
17. In another case 'R.K. Malik and another vs. Kiran Pal and others', (2009) 14 SCC 1, the two Judge Bench while dealing with the cases involving claim of compensation under Section 163A of the Act, noticed the judgments in 'M.S. Grewal vs. Deep Chand Sood', (2001) 8 SCC 151; 'Lata Wadhva vs. State of Bihar', (2001) 8 SCC 197; 'General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (MRS) and others', (1994) 2 SCC 176 and 'Sarla Dixit vs. Balwant Yadav', (1996) 3 SCC 179 and made the following observations:-
9. In cases of motor accidents the endeavour is to put the dependents/claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely.
10. To put it simply―pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non-pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life, etc. The Act provides for payment of "just compensation" vide section 166 and 168. It is left to the courts to decide what would be "just compensation" in the facts of a case."
18. In Susamma Thomas's case (supra), the Hon'ble Supreme Court ruled that in fatal accident action, the major of damages is the pecuniary loss suffered or likely to be suffered by each dependent as a result of the death and that:-
"9. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether."
19. Taking note of the evolving jurisprudence on the subject, in Sarla Verma's case (supra), which was affirmed by a Bench of Three Hon'ble Judges in 'Reshma Kumari and others vs. Madan Mohan and another', (2013) 9 SCC 65, the Hon'ble Supreme Court held thus:
"16............"Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.
17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision-making process and the decisions. While it may not be possible to have mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/ inputs are the same, and the formula/ legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated (SCC p.185, para 16) "16.....the proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation"
20. With regard to the addition of income towards future prospects, the Hon'ble Supreme Court in Reshma Kumari's case (supra) adverted to para 24 of the Sarla Verma's case and held:
"39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
The aforesaid analysis vividly exposits that the standardization of additional to income for future prospects is helpful in achieving certainty in arriving at appropriate compensation. Thus, the Larger Bench has concurred with the view expressed by Sarla Verma's case (supra) as per the determination of future income.
21. In Prenay Sethi's case (supra), the Hon'ble Supreme Court after considering various provisions of the act and the case law on the subject observed thus:-
"(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the Courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) 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. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
DEDUCTION FOR PERSONAL AND LIVING EXPANSES
22. The deceased-Rahul Gupta was aged 38 years at the time of accident. The Tribunal assessed the income of the deceased at Rs.3,000/- per month. The income of the deceased, Rahul Gupta as held by the Tribunal is not disputed by the appellants. The Tribunal has deducted 1/3rd of his income on personal and living expanses of the deceased. The dependent family members are four, who are the claimants/appellants. Applying the law laid down in Sarla Verma's case (supra), 1/4th income is to be deducted on account of personal and living expanses and not 1/3rd as done by the Tribunal while passing the impugned award.
FUTURE PROSPECTS
23. The deceased Rahul Gupta was aged about 38 years and was having income from private occupation. Applying the law laid down in Prenay Sethi's case (supra), the appellants are entitled to addition of income of 40 per cent on account of future prospects.
LOSS OF FUNERAL EXPANSES
24. The Tribunal has awarded a mere sum of Rs.2,000/- as funeral expenses. As per the law laid down in Prenay Sethi's case (supra), the appellants are entitled to a sum of Rs.15,000/- towards funeral expenses.
LOSS OF ESTATE
25. The Tribunal has awarded a sum of Rs.5,000/- towards loss of estate. As per the law laid down in Prenay Sethi's case (supra), the appellants are entitled to Rs.15,000/- towards loss of estate.
LOSS OF CONSORTIUM
26. As per the law laid down in Prenay Sethi's case (supra), the appellants are entitled to a sum of Rs.40,000/- towards consortium.
27. Thus, the appellants are entitled to the following amount of compensation:-
(i) Loss of dependency : Rs.4,32,000/- (Rs.27,000/- x 12 x 16).
(ii) Future prospects : Rs.1,72,800/-
(iii) Loss of estate : Rs.15,000/-
(iv) Loss of consortium : Rs.40,000/-
(v) Funeral expanses : Rs.15,000/-
28. So far as the interest is concerned, in view of Rule 220A(6) of the Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011, the appellants are entitled to interest @ 7% per annum from the date of filing of the application/petition till realization.
29. In the result, the appeal is allowed and the impugned award dated 15th October, 2015 passed by learned Motor Accident Claims Tribunal/ District Judge, Lakhimpur Kheri is modified and it is ordered that the appellants are entitled to the compensation of Rs.6,75,000/- (rupees six lacs seventy five thousand only) along with interest @ 7% per annum from the date of filing of the petition till realization. The amount already paid or deposited by the respondent shall be adjusted in the aforesaid amount. The apportionment of the compensation amount awarded herein above shall be in terms of the impugned award passed by the Tribunal.
30. The statutory amount, if any, deposited by the insurance company, shall be refunded, as per Rules.
31. Lower court record along with a copy of this judgment be sent back immediately.
(Ved Prakash Vaish) Judge Order Date :- 27th Nov., 2019 cks/-