Court No. - 88
Case :- FIRST APPEAL FROM ORDER No. - 1572 of 2016 Appellant :- U.P.S.R.T.C.
Respondent :- Smt. Savita Devi And 4 Ors. Counsel for Appellant :- Sunil Kumar Misra Counsel for Respondent :- Ram Singh And Case :- FIRST APPEAL FROM ORDER No. - 1870 of 2016 Appellant :- Smt. Savita Devi And 3 Ors.
Respondent :- U.P. State Roadway Corporation Nigam And Another Counsel for Appellant :- Ram Singh,Amit Kumar Singh
Hon'ble Vipin Chandra Dixit,J.
Both the First Appeals From Orders have been filed under section 173 of Motor Vehicle Act, 1988(hereinafter referred to as 'Act, 1988) against the judgment and award dated 5.2.2016 passed by Additional District Judge, Court No.8, Motor Accident Claims Tribunal, Allahabad in Motor Accident Claim Petition No. 932 of 2012(Smt. Savita Devi & others vs. U.P. State Road Transport Corporation & another) by which compensation of Rs.20,39,771/- alongwith 7% interest has been awarded to the claimants on account of death of Aniruddh Prasad in a road accident.
Sri Ram Singh, learned counsel for the claimant-respondents states that he does not want to press the objection/cross-appeal filed in FAFO No.1572 of 2016. The objection/cross-objection filed in FAFO No.1572 of 2016 is accordingly rejected.
Brief facts of the case are that the claimants being legal heirs and representatives of Late Aniruddh Prasad had filed claim petition under section 140 & 166 of Act, 1988 claiming compensation of Rs.40,00,000/- on account of death of Aniruddh Prasad who died on account of injuries received in accident which occurred on 4.10.2012. It is alleged in the claim petition that the deceased was working as a Store Keeper in U.P. State Road Transport Corporation and was getting salary of Rs.26,000/- per month.
The UPSRTC has put in appearance and filed its written statement denying claim allegations. It is pleaded by the UPSRTC that there was no negligence on the part of driver of the bus and income of the deceased was also denied.
The Claim Tribunal after considering entire evidence and material on record has recorded the finding while deciding the issue no.1 that accident occurred on account of rash and negligent driving of driver of the bus No.UP72H/9909. The Claims Tribunal while deciding issue no.2 has calculated the compensation accepting the monthly income of the deceased as Rs.26,234/- and after deducting 1/3 towards personal expenses and by applying multiplier of eight had assessed the compensation as Rs.16,78,976/- and after adding 20% future prospects and Rs.5000/- for funeral compensation, Rs.10,000/- for loss of love and affection, Rs.5000/- for loss of estate and Rs.5000/- for loss of consortium, the total compensation was awarded as Rs.20,39,771/- alongwith 7% interest.
The FAFO No. 1572 of 2016(UPSRTC vs. Savita Devi and others) has been filed by the UPSRTC mainly on the ground that it was a case of contributory negligence and future prospects have wrongly been given as 20% and the compensation was awarded on higher side and the entire liability has wrongly been fixed upon UPSRTC.
FAFO No. 1870 of 2016 has been filed by the claimants for enhancement of compensation on the ground that the Claims Tribunal has wrongly deducted 1/3rd in place of 1/4th as there were four dependents on the income of deceased, the multiplier has wrongly been applied by eight in place of nine and non-pecuniary damages were also awarded on lower side.
Heard Sri Sunil Kumar Mishra, learned counsel for UPSRTC and Sri Ram Singh, learned counsel for the claimants and perused the record.
The factum of accident has not been disputed by the parties. The UPSRTC has produced driver of the bus as D.W.-1 who has not denied the factum of accident as well as involvement of the bus in the accident but only negligence has been denied whereas the claimants had fully proved the rash and negligent driving of the driver and the Claims tribunal recorded the finding after considering the evidence adduced by the parties while deciding issue no.1 that the driver of the bus was rash and negligent and was responsible for the accident. Finding recorded by Claims Tribunal in respect of negligent driving of bus driver is based on evidence and materials which are available on record and there is no illegality in any manner.
So far as quantum of compensation is concerned, the Claims Tribunal has committed illegality in applying the multiplier of eight accepting the age of the deceased more than 56 years. The Hon'ble Apex Court in the case of Sarla Verma(Smt.) and others vs. Delhi Road Transport Corporation and another reported in 2009(2) TAC 677 has held that there are discrepancies/errors in the multiplier scale given in the second schedule and provided multiplier table. Para 21 is reproduced herein below:-
"21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
The multiplier table provided in the above decision was also affirmed by the Constitutional Bench of Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017(4) T.A.C. 673.
The Hon'ble Apex Court in the case of Pranay Sethi(supra) has laid down certain guidelines for calculating just compensation under the Motor Vehicles Act. Relevant paragraph 61 is reproduced hereunder:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:
(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."
The income of deceased was not disputed by UPSRTC and as such it is accepted as Rs.26234/-. The multiplier of nine in place of eight and deduction towards personal expenses is 1/4th in place of 1/3rd and future prospects 15% in place of 20% are accepted in view of law laid down by Hon'ble Apex Court.
In view of aforesaid discussion, the quantum of compensation has been reassessed as follows:-
1) Monthly income: Rs.26,234/-
2) Annual income: Rs.26,234/- x 12 = Rs.3,14,808/-
3) Future prospects: 15% = Rs.47,222/-
4) Total annual income: Rs.3,14,808 + Rs.47,222/- =Rs.3,62,030/-
5) Deduction towards personal expenses: 1/4th = Rs.90,508/-
6) Annual loss of dependency: Rs.3,62,030/- - Rs.90,508/- = Rs.2,71,522/-
7) Multiplier applicable: 9
8) Total loss of dependency: Rs.2,71,522/- x 9 =Rs.24,43,698/-
9) Non-pecuniary damages: Rs.70,000/-
Total: Rs.24,43,698/- + Rs.70,000/- = Rs.25,13,698/-
(Total in round figure = Rs.25,13,700/-) Both the appeals are hereby partly allowed and award of the Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs.20,39,771/- to Rs.25,13,700/- with interest at the rate of 7% from the date of filing of claim petition. The UPSRTC is directed to pay enhanced amount of compensation within two months from today.
No order as to costs.
Order Date :- 25.10.2021 P.P.