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Vinod Kumar Mishra & Others v/s National Insurance Company Ltd & Others

    First Appeal From Order No. 513 of 2018

    Decided On, 09 March 2022

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE DR. JUSTICE KAUSHAL JAYENDRA THAKER & THE HONOURABLE MR. JUSTICE AJAI TYAGI

    For the Appellant: Ved Prakash Shukla, Advocate. For the Respondents: Rajeev Ojha, Advocate.



Judgment Text

Ajai Tyagi, J.,

1. This appeal is preferred by the claimants-appellants for enhancement of compensation awarded to appellant by Motor Accident Claims Tribunal/Additional District Judge, Court No.16, Kanpur Nagar ('Tribunal', for short), vide judgment/award dated 9.11.2017 and decree dated 14.11.2017 in M.A.C.No.820 of 2010 (Vinod Kumar Mishra & others vs. National Insurance Co.Ltd. & others) whereby claimants/appellants was awarded Rs.4,71,500/-, with 6% rate of interest as compensation.

2. Brief facts of the case are that on 20.12.2008, the deceased was going on her scooty bearing No.UP78-BP/2060 in District-Kanpur Nagar. When she reached near Railway-crossing, GT Road within the jurisdiction of Police Station-Chakeri, a truck bearing No.UP78-AT/4739 coming from opposite direction, which was being driven very rashly and negligently by its driver hit the scooty of the deceased. In this accident, Kumari Anjali Mishra (deceased) sustained fatal injuries and died during the treatment in hospital. A police report was registered at concerned police station regarding the accident. The owner and insurer of aforesaid offending truck filed their respective written statements before the Tribunal. Driver of the truck did not participate in the proceedings. Aggrieved by the quantum of compensation with 6% per annum rate of interest, the appellants-claimants filed this appeal.

3. Heard Shri Ved Prakash Shukla, learned counsel for the appellants and Shri Rajeev Ojha, learned counsel for the respondents-Insurance Company.

4. The accident is not in dispute. The insurance company has not challenged the liability on it. The issue of negligence has attained finality. Now the only issue to be decided is the quantum of compensation awarded by the Tribunal. Entire factual scenario is not being narrated as the limited question in this appeal relates to the quantum only.

5. With regard to the quantum, learned counsel for the appellants submitted that the age of the deceased at the time of accident was just 21 years and she was student of B.Tech. and had passed 3rd Year; her career was very promissing. It is also submitted that the deceased was earning Rs.6,000/- per month by way of imparting tuitions, but learned Tribunal assessed her monthly income at Rs.3,000/- only. Further submission is that compensation under the heads of non-pecuniary damages is on the very lower-side; Tribunal has awarded Rs.2,500/- for loss of estate and Rs.10,000/- for funeral expenses. No amount regarding filial consortium has been awarded. It is next contended by counsel for the appellants that Tribunal has applied multiplier of 17 while it could have been 18 in the light of the judgment of Hon'ble Apex Court in the case of Smt.Sarla Verma vs. Delhi Transport Corporation [2009 (2) TAC 677 (SC)]. Learned counsel for the appellants-claimants has heavily relied on the following judgments:

A. Meena Pawaia and others vs. Ashraf Ali and others, 2021 LawSuit (SC) 743,

B. Jakir Hussain vs. Sabir and others, 2015 LS (SC) 147

6. Shri Rajiv Ojha, learned counsel appearing for Insurance Company, vehemently objected the contentions made by counsel for the appellants and submitted that deceased was only a student; she was not earning anything. It is further submitted that according to the averment of claim petition, the deceased was imparting tuitions and earning Rs.6,000/- per month, but no documentary evidence in this regard has been adduced by the appellants. Hence, the oral submission does not carry any weight, therefore, learned Tribunal has rightly assessed her income to be Rs.3,000/- per month; multiplier is also correctly applied. Learned counsel appearing for Insurance Co. has lastly submitted that there is no infirmity or illegality in the impugned judgment, which calls for any interference by this Court.

7. It is admitted fact that at the time of death, the age of the deceased was 21 years and it is also admitted and not opposed by respondents that she was the student of B.Tech. and had passed 3rd year. Even, if there is no documentary evidence regarding her imparting the tuitions and earning Rs.6,000/- per month, but learned Tribunal lost its sight from the fact that she was pursuing B.Tech., meaning thereby she was going to become an Engineer, if she had not met the unfortunate accident and died untimely-death.

8. For assessing the just compensation, in such cases where a promissing student has lost his/her life in unfortunate accident, Tribunals must keep in mind the potential of the deceased to earn his/her livelihood. It is not necessary that in every case, a promissing student had some earning at the time of death, but he/she could have potential and capacity to earn, if the accident would not have occurred. The Motor Vehicles Act is a benevolent Act and the claimants are entitled to just compensation.

9. Hon'ble Apex Court in Meena Pawaia (supra) has held that even the labourers were getting Rs.5,000/- per month under the Minimum Wages Act. Even in 2012, therefore, Tribunal should not have assessed a meager income of a person, who has lost life in accident. Educational qualification and family background of such type of deceased persons should be kept in mind before assessing their income.

10. In the case in hand, it is very well proved that the deceased was 21 years of age and had passed 3rd Year Examination of B.Tech. So we are of the considered opinion that learned Tribunal has committed grave error in fixing her monthly income at Rs.3,000/- only. Keeping in mind the potentiality and capability of the deceased to earn in future, we are of the considered view that her income should be assessed not less than Rs.6,000/- per month as she was promissing B.Tech. Student. Therefore, her monthly income is assessed to be Rs.6,000/- per month. As far as the future loss of income is concerned, learned Tribunal has added 50% of the income, but in Meena Pawaia's case (supra), Hon'ble Supreme Court held that even in a case of a deceased, who was not serving at the time of death and had no income, their legal heirs shall also be entitled to future-prospects by adding future rise in income as held by Hon'ble Apex Court in the case of National Insurance Company vs. Pranay Sethi [2014 (4) TAC 637 (SC)] i.e 40% of the income shall be added for future loss of income, considering the educational qualification, family background etc. where the deceased was below the age of 40 years. Hence, we are not inclined to add 50% to the income of the deceased for future loss of income. Deceased was unmarried, therefore, the Tribunal was rightly deducted for her personal expenses as envisaged by Hon'ble Apex Court in Munna Lal Jain vs. Vipin Kumar Sharma, 2015 (3) TAC 1(SC). Learned Tribunal has applied multiplier of 17, which is on lower-side and it should be of 18 according to the judgment of Hon'ble Apex Court in Smt.Sarla Verma (supra). As far as non-pecuniary damages are concerned, the Tribunal has awarded only Rs.10,000/- towards funeral expenses, which are also on the lower-side. In the light of Judgment of Pranay Sethi (supra), claimants shall be entitled to get Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses. Apart from it, the appellants shall also be entitled to get Rs.40,000/- for loss of filial consortium. Hence, the non-pecuniary damages are calculated at Rs.15,000/- + Rs.15,000/- + Rs.40,000/- = Rs.70,000/-, and as per the judgment of the Pranay Sethi (supra), these would be revised 10% every three years. Hence, we fix total lump-sum non-pecuniary damages at Rs.1,00,000/-.

11. Hence, the total compensation, in view of the above discussions, payable to the appellants-claimants is being computed herein below:

i. Annual Income Rs.6,000/- x 12 Rs.72,000/-

ii. Percentage towards Future-Prospects (40%) Rs.28,800/-

iii. Total Income Rs.72,000/- + Rs.28,800/- Rs.1,00,800/-

iv. Income after deduction of Rs.50,400/-

v. Multiplier applicable 18

vi. Loss of dependency Rs.50,400/- x 18 Rs.9,07,200/-

vii. Non-pecuniary Damages Rs.1,00,000/-

viii. Total Compensation Rs.9,07,200/- + Rs.1,00,000/- Rs.10,07,200/-

12. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal 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 to what is ordinarily envisaged in these matters. The High 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."

13. Learned Tribunal has awarded rate of interest as 6% per annum, but we are fixing the rate of interest as 7.5% in the light of the above judgment.

14. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The Insurance Company shall deposit the amount within a period of 8 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. The amount already deposited be deducted from the amount to be deposited.

15. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of

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Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [2007(2) GLH 291] and this High Court in 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 claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021, while disbursing the amount.
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