Hon'ble Ajit Singh, J.
1. Heard learned counsel for the parties and perused the record.
2. This appeal has been preferred against the Judgment and award dated 30.7.2014 passed by the Motor Accident Claims Tribunal, Kanpur Nagar (hereinafter referred to as ''the MACT') in Motor Accident Claim Petition No. 252 of 2011 filed by Smt. Rashmi Jain and another for enhancement of the quantum of compensation.
3. Brief facts as culled out from the record are that deceased with others was travelling in Spark Car bearing registration No. HR 01 AA 3660. Kumari Malini Jain (deceased) along with Rohit, his wife Shivani and son Shubham was going to Nazibabad from Delhi on 2.10.2010 when on the way, at about 10 a.m., driver of car bearing registration No. U.P. 20 W 7481 driving his vehicle rashly and negligently dashed with their car from the front as a result of which all the persons received severe injuries. All were rushed to Puja Hospital Nazibabad where they were told to get them treated in a better equipped hospital. The patients were taken to Meerut Hospital. Malini Jain succumbed to injuries on the way to Meerut. In the accident, Rohit sustained fracture in right leg, Shivani sustained fracture in left leg and all the three received injuries on other parts of the body too. Deceased was an intelligent and hale and hearty girl, who was posted as Assistant Manager and used to earn Rs.30,000/- per mensem. She had obtained degree of M.B.A. from M.S.W. and X.L.R. I., Jamshedpur. The claimants filed claim petition claiming a sum of Rs.92,30,000/- as compensation from all the respondents.
4. The Tribunal heard the parties and, vide Judgment and award dated 30.7.2014, awarded a sum of Rs.9,78,500/- along with 7 per cent simple rate of interest from the date of presentation of claim petition till the date of last payment of awarded amount.
5. The appellants are parents of the deceased Malini Jain, who was 35 years of age when she was travelling in the car driven by her brother and met with an accident with the car owned by respondent No. 1. The fateful accident occurred on 2nd of October, 2010. Issues, which are not in dispute, are that the accident took place between two vehicles and negligence of both the drivers was decided by the Tribunal to be 50% each. It is an admitted position of fact that neither the deceased contributed to the accident which took place nor she was a tort feasor. It is not in dispute that the vehicle owners have not challenged the award and decree till date. The Insurance companies have also not challenged the decree and award but respondent No. 4, namely, The New India Assurance Company Ltd., which has been exonerated by the Tribunal, has contended that as appeal under Section 173 of the Motor VehiclesAct 1988 is continuation of original proceedings, they have right to defend and contend that there was also breach of condition of insurance contract by owner and driver
6. The factual datas as further culled out and important for our purposes are that the deceased was a divorcee. She was in the age bracket of 31-35 years when the accident occurred as narrated above i.e., on 2nd of October, 2010. The driver of other vehicle died in the accident. The driver of the vehicle in which the deceased was travelling suffered severe injuries, who was real brother of deceased. Other inmates of the vehicle were also injured. The parents at the time of accident in the year 2010 were aged 52 and 54 years respectively. The claimants claimed a sum of Rs. 92,30,000/- as the deceased was Assistant Manager and earning Rs. 30,000/- per month. She obtained her M.B.A. degree from M.S.W. and X.L.R. I., Jamshedpur.
7. The accident having occurred is not in dispute. On notice being served, the respondents appeared and filed their reply before the Tribunal. The claimants also filed documentary evidence. Respondent No. 2- M/s Chola Mandalam M.S. General Insurance Company, as usual, filed reply denying that the vehicle was insured with them. They contended that the income of the deceased was not proved. They contended that the F.I.R. was a delayed F.I.R. and they were not liable to pay any amount though the copy of policy being filed. They contended that the vehicle bearing Registration No. U.P. 20 W 7481 was not insured with them and that U.P. 20 W 7481 was wrongly made a party. In the alternative, they contended that the petition was not filed as per the pro forma and there is breach of policy conditions. Unfortunately, though the accident occurred in 2010 much after 1988 when the Motor Vehicles Act came into force, they have relied on section 60 of the Insurance Act, 1938 and contended that the Insurance Company have right to defend themselves and that the driver of the other vehicle did not have proper driving licence and whether any medical policy or personal accident policy was taken or not should also be declared. Respondent No. 3- Shivani Bahel has accepted averments made in paragraphs 1and 5 of the claim petition but has denied the correctness of averments made in paragraphs 6 and 7 of the claim petition. It is submitted that the vehcile was insured with the respondent No. 4 but the sole negligence was that of the driver of the U.P.20 W 7481 as he drove the vehicle rashly and negligently and his death shows that he was totally negligent. Her husband , i.e., driver Rohit Jain also were injured and if there is any liability it would be that of the Insurance Company.
8. Respondent No. 4 Insurance Company has denied their liability and submitted that the vehicle was not driven as per the policy conditions and that there was breach of section 41(2) of the Motor Vehicles Act, 1988.
9. The Tribunal framed five issues. Issue nos. 1 and 4 are inter-connected issues regarding negligence of drivers of U.P. 20 W 7481 and HR 1 AA 3660 in which the deceased was travelling with her family members. We are not concerned with the correctness of the said issues as the appellants have not challenged the issue of negligence decided by the Tribunal and, therefore, we also do not delve into as to the factum of either negligence. The drivers were held to be equally neglegent namely 50% each.
10. Learned counsel for the appellants-claimants has heavily relied on the Judgment of the Apex Court in the case of Khenyei vs. New India Assurance Company Ltd and others, 2015 LawSuit (SC) 469 so as to contend that no amount could be deducted from compensation to which the claimants are entitled as qua the deceased it was a case of composite negligence and not of contributory negligence. Learned counsel for the opposite party No. 4 has heavily relied on Judgment of the Apex Court rendered in the case of Oriental Insurance Company Ltd. vs. Sudhakaran K. V. and others, A.I.R. 2008 Supreme Court 2729 to contend that the deceased was not covered in the policy.
11. The appellants-claimants have challenged the award and decree on several counts. One that though the driver of the vehicle in which the deceased was travelling had contributed to the accident having taken place, the Tribunal could not have deducted 50% from the amount payable to the parents of the deceased as neither the deceased had contributed to the accident nor she was the driver. She was an occupant of the vehicle which was insured with the respondent No. 4. Secondly, the claimants have also challenged non-grant of any amount under the head of future loss of income as, according to the Tribunal, the deceased was in permanent employment and, as such, the income, at the time of her death, had to be added by 50% which had to be considered as her future loss of income also. As far as the question of furture loss of income is concerned, the deceased may not be in Government employment, the decision of the Apex Court and that also in Sarla Varma does not specify whether it should be a government job or not. Thirdly multiplier has wrongly been applied based on the age of the parents which is against the Judgment of the Apex Court rendered in the case of Amrit Bhanushali Vs. N.I.C., 2012 (3) ACCD 1133 (SC). The Tribunal has wrongly relied on the Judgments of Apex Court rendered in the case of New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and others (Three Judges Bench), 2007 (4) TAC 17 (SC) and Shakti Devi Vs. New India Assurance Company Ltd and another, 2011 (1) TAC 4 where multiplier is granted on basis of claimants and not deceased.
12. The claimants have further contended that the income of the deceased was rightly assessed to be Rs.30,016/- per mensem, which is not in dispute. Deduction of 1/3rd should have been been towards personal expenses of deceased as per the second Schedule of the Motor Vehicles Act 1988. It is further contended that the Tribunal has awarded only Rs.10,000/- towards compensation for loss of love and affection and funeral expenses. Nothing has been awarded towards filial consortium of the parents who have lost their daughter.
13. Per contra, learned counsel for the respondent submitted that the compensation and rate of interest awarded by the Tribunal is just and proper and does not call for any interference by this Court.
14. Having considered these facts and the fact that the income of Rs.30,016/- as decided by the Tribunal is not in dispute as, according to the Form 16 produced, income of the deceased per year was Rs.3,54,000/-, hence, we can consider her income to be Rs.30,000/-.per month . Unfortunately though she was in employment and below the age of 40 years, the Tribunal did not think proper to grant any amount under the head of future loss of income which is bad in law. The amount of future loss of income in the year of judgment was 50% of the income earned. The Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, 2017 0 Supreme (SC) 1050 has reiterated the concept of future loss. The amount of income has to be last pay. The deceased was a salaried person below 40 years, therefore, we would add 50% towards the said head looking to the job qualification and nature of work performed by the deceased. As far as the deduction is concerned, we are unable to accept the submission of the learned counsel for the appellant that it should be 1/3rd. As deceased was a divorced lady, therefore, 1/2 would be proper deduction. This takes us to the question of multiplier, namely, whether it should be as per the age of parents or the age of the deceased. The said issue is no longer res integra in view of the decision in Pranay Sethi (supra) and the judgment in Munna Lal Jain and another Vs. Vipin Kumar Sharma and others, 2015 (6) SCALE 552 and it is the age of the deceased which should be considered for the purpose of consideration of multiplier. In our case, it should be 16 looking to the age of the deceased who was in the age bracket of 31 to 35 years, which is not in dispute. Lastly, we are of the view that the amount under the head of filial consortium would be Rs.50,000/- towards the parents especially mother. Compensation towards funeral expenses is awarded a Rs.15,000/-.
15. The appellants had the trauma of emergency treatment of all the four persons out of whom Malini Jain breathed her last. Medical bills which have been produced are amounting to Rs.3,000/- which has not been considered by the Tribunal. We award said amount rounded upto Rs.5,000/-.
16. Hence, the compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below:-
i. Income: Rs.30,000/- per month ii. Percentage towards future prospects : 50% namely Rs.15,000/-
iii. Total income : Rs. 30,000 + 15,000 = Rs. 45,000/-
17. As far as the appellants are concerned, the deceased was not a tort feasor. The Tribunal has exonerated respondent nos. 3 and 4 only on the ground that the driver driving the vehicle owned by respondent no. 3 insured by respondent no.4 was also negligent and, therefore, 50 per cent has been deducted. The decision of the Apex Court in Khenyei (supra) will enure for the benefit of the appellants as it is open to the claimants to recover entire compensation from one of the joint tort feasor as this is not a case of contributory negligence but is a case of negligence which can be said to be composite qua the deceased. The New India Assurance Company Ltd. is admittedly insurer of the car in which the deceased was travelling. Hence, we hold that the respondents would be jointly liable for their portion of amount. As far as the respondent no.2 M/s Chola Mandalam M.S. General Insurance Company Ltd. is concerned, it is conveyed that 50% of the amount, which was awarded, has already been deposited by them.
18. As this is an appeal under Section 173 of the Motor Vehicle Act, 1988, which is continuation of the proceedings, the New India Insurance Company Ltd. has raised a technical stand that liability of the Insurance Company cannot be extended to death of rider in car. This ground is taken but without any strong basis the reason being that it has not been proved that vehicle was not comprehensively insured. The documentary evidence, which we have perused from the record comprises of document at Ext. 31 Ga-1/1, registration of the vehicle; document at Ext. 31 Ga-1/3; the insurance policy of The New India Assurance Company Ltd.; and document at Ext. 31 Ga-1/4, copy of driving licence of Rohit Jain, which go to show that the vehicle was comprehensively insured for which the Insurance Company has insured the owner. Copy of the policy shows that it was insured for 4 +1 passangers and as is clear from the form, it was a comprehensive policy for which Rs.8,832 were taken as premium. The vehicle was bought in the year of accident, i.e., six months before the fateful accident occurred. It was insured from 6.4.2010 to 5.4.2011. Hence, in view of the submission of the learned counsel for apellants and reliance placed on the decision of Khenyei Vs. New India Assurance Company Ltd. and others (supra) cannot be of any aid to the Insurnce Company once it is held that the driver had proper driving licence. In deducting 50% of compensation, we have considered the same as oral submissions were made and it was contended that they did not challenge as respondent no.4 was exonerated. This feeble argument is not supported by any documentary evidence which shows that the said Judgment would not come to the help of the respondent Insurance Company. In that view of the matter, we are unable to accept the submission of the counsel for the respondent no.4 that the deduction is just and proper. Reliance placed on the decision titled Oriental Insurance Company Ltd. vs. Sudhakaran K. V. and others (Supra) cannot aid the insurance company the reason being the same was concerning non insurable right of a pillion rider where the policy was a Act policy. In the case on hand the non grant of 50% of compensation payable to claimants is because the driver of the vehicle involved was held negligent. This reasoning is against the settled principle of awarding compensation in case of composite negligence where both tort fessors would be liable and in turn the Insurance Company, which insured the vehicle and where it is proved that there is no breach of policy.
19. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision ofthe Apex Court in National Insurance Co. Ltd.Vs. Mannat Johat 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 towhat is ordinarily envisaged in these matters. TheHigh 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."
20. At this stage, it has been submitted by Sri Shukla, learned counsel for the appellants that eleven years have elapsed, the parents are at the fag end of their lives, therefore, on deposit of additional amount being made, this Court may not direct deposit of said amounts in fixed deposits and though this Court has time and again directed the Insurance Companies not to deduct TDS, the same is being deducted.
21. We deem it fit to rely on the Judgment of the Apex Court in the case of A.V. Padma and others Vs. R. Venugopal, 2012 (3) SCC 378 wherein the Apex Court has considered the Judgment rendered in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas and others, AIR 1994 SC 1631. Paras 5 and 6 of A.V. Padma's Judgment read as under:-
"5. Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi- literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money. The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits.
However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him. The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice.
6. In this case, the victim of the accident died on 21.7.1993. The award was passed by the Tribunal on 15.2.2002. The amount of compensation was enhanced by the High Court on 6.7.2006. Neither the Tribunal in its award nor the High Court in its order enhancing compensation had directed to invest the amount of compensation in long term fixed deposit. The Insurance Company deposited the compensation amount in the Tribunal on 7.1.2008. In the application filed by the appellants on 19.6.2008 seeking withdrawal of the amount without insisting on investment of any portion of the amount in long term deposit, it was specifically stated that the first appellant is an educated lady who retired as a Superintendent of the Karnataka Road Transport Corporation, Bangalore. It was also stated that the second appellant Poornachandrika is a M.Sc. degree holder and the third appellant Shalini was holding Master Degree both in Commerce and in Philosophy. It was stated that they were well versed in managing their lives and finances. The first appellant was already aged 71 years and her health was not very good. She required money for maintenance and also to put up construction on the existing house to provide dwelling house for her second daughter who was a co-owner along with her. The second daughter was stated to be residing in a rented house paying exorbitant rent which she could not afford in view of the spiralling costs. It was further stated in the application that the first appellant was obliged to provide a shelter to the first daughter Poornachandrika. It was pointed out that if the money was locked up in a nationalised bank, only the bank would be benefited by the deposit as they give a paltry interest which could not be equated to the costs of materials which were ever increasing. It was further stated that the delay in payment of compensation amount exposed the appellants to serious prejudice and economic ruin. Along with the application, the second and third appellants had filed separate affidavits supporting the prayer in the application and stating that they had no objection to the amount being paid to the first appellant.
7. While rejecting the application of the appellants, the Tribunal did not consider any of the above-mentioned aspects mentioned in the application. Unfortunately, the High Court lost sight of the said aspects and failed to properly consider whether, in the facts and circumstances of the case, there was any need for keeping the compensation amount in long term fixed deposit. "
22. Thus, it goes without saying that, in our case, the oral prayer of Sri Shukla requires to be considered as the guidelines in A.V. Padma and others (supra) was in the larger interest of the claimants. Rigid stand should now be given way. People even rustic villagers' have bank account which has to be compusorily linked with Aadhar, therefore, what is the purpose of keeping money in fixed deposits in banks where a person, who has suffered injuries or has lost his kith and kin, is not able to see the colour of compensation. We feel that time is now ripe for setting fresh guidelines as far as the disbursements are concerned. The guidelines in Susamma Thomas (supra), which are being blindly followed, cause more trouble these days to the claimants as the Tribunals are overburdened with the matters for each time if they require some money, they have to move the Tribunal where matters would remain pending and the Tribunal on its free will, as if money belonged to them, would reject the applications for disbursements, which is happening in most of the cases. The parties for their money have to come to court more particularly up to High Court, which is a reason for our pain. Reliance can be placed on Susamma Thomas (supra) in matters where claimants prove and show that they can take care of their money. In our view, the Tribunal may release the money with certain stipulations and that guidelines have to be followed but not rigidly followed as precedents. Recently, the Jammu and Kashmir High Court was faced with similar situation in the case of Zeemal Bano and others Vs. Insurance Company, 2020 TAC (2) 118.
23. One of usof Division Bench, namely, Dr. Justice Kaushal Jayendra Thaker in Single Bench of this Court has held that the Insurance Company should not deduct any amount under T.D.S in the case of Smt. Sudesna and others Vs. Hari Singh and another, F.A.F.O. No.23 of 2001, decided on 26.11.2020, which should be strictly adhered to. Relevant part of the said Judgment is as under:-
" It is further orally conveyed that even if the amounts will be deposited, the Insurance company normally deducts TDS. The judgement is reviewed and at the end.
"I. On depositing the amount in the Registry of the Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any.
II. 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 not illiterate and in New India Assurance Co. Ltd. Vs. Hussain Babulal Shaikh and others, 2017 (1) TAC 400 (Bom.).
III. 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 (as directed in para No. II) without producing the certificate from the concerned Income-Tax Authority.""
24. In view of the above, the appeal is partly allowed. Award and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondents shall jointly and severally liable to pay additional amountwithin 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. It is further directed that on deposit of the amount, the Tribunal shall disburse the entire amount by way of account payee cheque or by way of RTGS to the account of the appellants within 12 weeks from the date the amounts are deposited by the respondents. Record be sent back to the Tribunal.
25. A copy of this Judgment be circulated by the learned Registrar General to the Tribunals in the State for guidance after seeking approval of the Hon'ble the Chief Justice.
Order Date:13.4.2021 Ram Murti