Partly allowed

Smt. Urmila Devi and 6 Ors. v. Nathuni Ray and 2 Ors.

Allahabad HC20 Nov 2019FAFO/2200/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part and modified the Motor Accident Claims Tribunal award. The Court recalculated compensation based on gross salary with 30% for future prospects, adjusted the dependency deduction to one-fifth, corrected the multiplier to 14, and enhanced conventional heads.

What did the court decide?

Compensation enhanced from Rs. 7,89,000 to Rs. 15,55,120 with 8% p.a. interest payable from the date of filing the claim petition.

Smt. Urmila Devi and 6 Ors. Vs Nathuni Ray and 2 Ors. — Motor Accident Claims | Allahabad HC (2019)

A.F.R.

Court No. - 4

Case :- FIRST APPEAL FROM ORDER No. - 2200 of 2014

¶5

Appellant :- Smt. Urmila Devi And 6 Ors. Respondent :- Nathuni Ray And 2 Ors. Counsel for Appellant :- Amit Kumar Sinha,Deepali Srivastava Sinha Counsel for Respondent :- Arvind Kumar,Saurabh Srivastava

¶6

Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.

¶7

Per Hon'ble B. K. Narayana, J.

¶8

Seen the office report dated 18.3.2017. Service on respondent no. 1 is deemed to be sufficient in view of the provisions of Chapter VIII Rule 12, Explanation (II) of the High Court Rules.

¶9

Heard Sri Amit Kumar Sinha, learned counsel for the appellants and Sri Saurabh Srivastava, learned counsel for respondent no. 3.

¶10

This appeal has been preferred by the claimants/appellants for enhancement of compensation awarded to them by Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Allahabad by judgement and award dated 27.2.2014 passed in M.A.C.P No. 01 of 1998 by which a sum of Rs. 7,89,000/- together with interest @ 8% p.a. in case the opposite parties/respondents failed to deposit the entire amount of awarded compensation within 30 days of the award, was awarded as compensation.

¶11

It appears from the perusal of the record that one Ravi Shankar Pandey (deceased) aged about 42 years on the relevant date, was posted as Assistant Auditing Officer and was earning a sum of Rs. 8,700/- per month. On 31.8.1997, while the deceased was going from Kalipara to Navpara at Bahraich, by a jeep bearing registration no. U.P. 40/A 2423, it collided with truck bearing registration no. W.B. 03/A 4458 due to rash and negligent driving of the drivers of both the vehicles. In the accident so

¶12

¶13

caused, the deceased received severe head injuries and he was admitted to Krishna Medical Centre, Lucknow, and had remained there under the treatment of Dr. Piyush Mittal from 31.8.1997 to 13.9.1997 incurring expenses of Rs. 50,000/- towards treatment. At the time of his death, his wife Smt. Urmila, sons-Ajay Kumar Pandey, Jitendra Kumar Pandey and Vinay Kumar Pandey, daughter Km. Pratibha Pandey, father Hari Lal Pandey and mother Devkanya Devi were dependent on him. The claim petition was filed by the claimants/appellants for an award of Rs. 70,00,000/- as compensation for the death of Ravi Shankar Pandey as a result of the injuries sustained by him in an accident which was caused due to rash and negligent driving of drivers of the two vehicles.

¶14

The claim petition was contested by opposite party/respondent no. 2, Irrigation Department Khand Irrigation and opposite party/respondent no. 3, United India Insurance Company Ltd. The owner of the tanker, opposite party/respondent no. 1, Nathuni Ray in this appeal did not contest the claim petition.

¶15

The Insurance Company in its written statement though broadly admitted the allegations made in the claim petition, but pleaded that the owner of the tanker alone could not be saddled with the liability of payment of entire compensation as it is the case of a contributory negligence and the liability should be apportioned between owners of both the vehicles. The Insurance Company further sought time for verification of the driving license of the driver of truck bearing registration no. W.B. 03/A 4458. The Irrigation Department in its written statement neither admitted nor considered it necessary to reply to the averments made in the claim petition. It further pleaded that the driver of the jeep in which the deceased was travelling, possessed a valid driving license and was driving the jeep at the time of the accident as per the traffic rules i.e. at the speed of 20-25 km/hour and the accident had been caused due to rash and negligent driving of the tanker by its driver.

¶16

On the basis of the pleadings of the parties, the Tribunal framed

¶17

¶18

following issues :-

¶19

Whether Ravi Shankar Pandey died in the accident caused due to rash and negligent driving of the driver of the truck bearing registration no. W.B. 03/A 4458 on 31.08.1997 at 11.45 am?

¶20

What compensation are the claimants entitled to ?

¶21

Is the truck in question fully insured?

¶22

Is the Insurance Company not liable to pay the compensation?

¶23

Relief.

¶24

The claimant/appellants in support of their claim, lead oral as well as documentary evidence. The oral evidence comprised of the statements of P.W.1 Smt. Urmila Devi, P.W.2 Kamla Prasad Mishra and P.W.3 Satish Chandra whereas the documentary evidence adduced comprised of copy of First Information Report of the accident registered as Case Crime No. 121 of 1997, registration certificate of vehicle no. W.B. 03/A 4458, permit, copy of insurance policy, death certificate of the deceased issued by Krishna Medical Centre, extract of family of Ravi Shankar Pandey, High School mark sheet of the deceased, charge-sheet filed in Case Crime No. 121 of 1997, site plan of the place of accident, Technical Examination Report of the two vehicles bearing registration nos. U.P. 40/A 2423 and W.B. 03/A 4458 on behalf of the opposite party/respondent no. 2, Irrigation Department Khand Irrigation and the copy of driving license of Prabhu Dayal, driver of vehicle no. U.P. 40A/2423.

¶25

Notice may be taken of the fact that initially the M.A.C.P. No. 01 of 1998 was decreed ex-parte qua the opposite party/respondent no. 2, Irrigation Department by judgement and award dated 16.7.2004. However, the application filed by the Irrigation Department under IX Rule 13 was allowed by the M.A.C.T. and the ex-parte judgement and award dated 16.7.2004 was set aside and thereafter the impugned judgement and award has been passed.

¶26

¶27

The Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Allahabad after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, awarded the sum of Rs. 7,89,000/- as compensation inter alia holding that the deceased at the time of his death was aged about 42 years and earning Rs. 6,500/- and had left behind seven dependents including four minor children treated as two units as per Rule 220-A of the U.P. Motor Vehicles Rules, 1998 and after deducting (1/3 of 6,500) amount towards personal and living expenses of the deceased, he would have contributed a sum of Rs. 4333/- per month or Rs. 51996/- per annum towards his family and applied the multiplier of 15 and since it was a case of contributory negligence, accordingly, Tribunal fixed the liability of 50-50.

¶28

The impugned judgement and award has been assailed by learned counsel for the appellant on the following grounds :-

¶29

The M.A.C.T. erred in law in holding the monthly income of the deceased as Rs. 6,500/- whereas the gross salary of the deceased was Rs. 8,500/- at the time of his death, for the purpose of computing the compensation.

¶30

The M.A.C.T. did not award any amount towards future prospects.

¶31

The amount awarded under the conventional heads is too meagre and not in consonance with the principles laid down by the Constitutional Bench of the Apex Court in the case of National Insurance Company Limited Versus Pranay Sethi and Others reported in 2017 ACJ 2700 (SC) .

¶32

The M.A.C.T. erred in deducting one-third amount towards living and personal expenses of the deceased, whereas considering the number of his heirs and legal representatives, the deduction made should have been onefifth.

¶33

The M.A.C.T. erred in awarding the interest on the amount of awarded

¶34

¶35

compensation conditionally by illegally providing that the interest on the awarded amount will be payable only if the Insurance Company fails to deposit the entire awarded compensation within 30 days of the award.

¶36

Per contra, learned counsel for the respondent nos. 2 and 3 made their submissions in support of the impugned judgement and award.

¶37

After having heard learned counsel for the parties, we find that there is force in the submissions made by learned counsel for the appellants.

¶38

Coming to the first ground of challenge to the impugned judgement and award, we find that the Tribunal for the purpose of computation of deceased's monthly income, had taken into account the net monthly income of the deceased whereas the gross income of the deceased ought to have been made the basis for calculating the compensation.

¶39

Our attention has been invited by learned counsel for the appellant to paragraph 10 of the judgement of the Apex Court in the case of Sarla Verma and others vs. Delhi Transport Corporation & another reported in 2009 (2) T.A.C. SC 677, wherein the Apex Court has held hereinunder :-

¶40

“10. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects. In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1032/- per month. Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2000/- as gross income before deducting the personal living expenses. The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996 (3) SCC 179], where the deceased was getting a gross

¶41

¶42

salary of Rs.1543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2200/- per month. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/- per annum, (Rs.3500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.”

¶43

Thus in view of the principles culled out in the case of Sarla Verma (supra) , we find that the Tribunal erred in taking into account the net salary of the deceased as the basis for awarding compensation wherein it ought to have awarded compensation on the basis of gross salary of the deceased which is Rs. 8,500/- as the income of the deceased was not within taxable range limits.

¶44

As regards the second ground of challenge canvassed by the appellants that the Tribunal acted illegally in not awarding any amount towards future prospects, we find force in the same.

¶45

The Constitutional Bench of the Apex Court in paragraph 61-iii of Pranay Sethi (supra) has observed as hereinunder :-

¶46

“(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.”

¶47

In the present case, there is no dispute about the fact that the deceased at the time of attaining the age of 40 years and was holding permanent job and hence the Tribunal ought to have added 30% of actual salary to the income of the deceased towards future prospects. We thus add 30% of the actual salary to the income of the deceased towards future

¶48

¶49

prospects, while computing his income.

¶50

Coming to the third ground of challenge that the amount awarded under conventional heads was too meagre and not in consonance with the principles laid down in paragraph 61 (viii) of Pranay Sethi (supra) , the same also has force. The Apex Court in the case of Pranay Sethi (supra) in paragraph 61 (viii) has observed as hereinunder :-

¶51

“(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.”

¶52

In the instant case, we find that the Tribunal has awarded the sum of Rs. 5,000/-, Rs. 2,000/- and Rs. 2,000/- towards loss of consortium, funeral expenses and loss of estate respectively under the conventional heads, which is neither reasonable nor justifiable.

¶53

We, accordingly, hold that the claimants/appellants are entitled to Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively for loss of estate, loss of consortium and funeral expenses.

¶54

Considering the fourth ground of challenge that at the time of death of the deceased, he had left behind seven family members who were dependent upon him, we find that the deduction towards personal and living expenses of the deceased should have been one-fifth as made by the Tribunal in view of the principle laid down in the case of Sarla Verma (supra) by the Apex Court. Paragraph 14 of the judgement of Sarla Verma (supra) which is relevant for our purpose is being reproduced hereinbelow :-

¶55

“14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th)

¶56

¶57

where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six.”

¶58

In the present case, the deceased had left behind his wife Urmilla, four minor children which as per Rule 220-A of the U.P. Motor Vehicles Rules, 1998, shall be treated as two units and his parents, total five dependants, hence, keeping in view the dictum laid down in paragraph 14 of Sarla Verma (supra), the deduction should have been one-fifth.

¶59

Coming to the last ground upon which the impugned judgement and award has been challenged, in our opinion, the Tribunal was not at all justified in awarding interest on the amount of compensation conditionally.

¶60

Although there is no appeal of the Insurance Company challenging the correctness of the multiplier adopted by the Tribunal in considering the fact that at the time of his death the deceased was aged about 42 years, then as per the table provided in paragraph 21 of the judgement of Sarla Verma (supra), the Tribunal ought to have adopted the multiplier 14 (M14) but nevertheless in order to do complete justice between the parties, we can exercise the power conferred under Order 41 Rule 33 of the C.P.C. which provides that the appellate court shall have power to pass any decree which ought to have been passed or made and this power may be exercised by the Court in favour of all or any of the respondents or parties, although they may not have filed any cross appeal or objection. Order 41 Rule 33 C.P.C. is being reproduced hereinbelow :-

¶61

“33 . Power of Court of Appeal— The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstandng that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.”

¶62

¶63

Thus, in view of above, keeping in view the legal principles followed by the Apex Court in paragraph 21 of Sarla Verma (supra) , we hold that the multiplier which should have been adopted in the instant case should be 14 and not 15.

¶64

We accordingly proceed to recalculate the compensation in the light of the aforesaid principles. As noted above, the actual salary of the deceased was Rs. 8,500/- per month or Rs. 1,02,000/- p.a. By adding 30% towards future prospects as the deceased was between the age of 40 to 50 years, the deemed gross income of the deceased would be Rs. 8,500/- + 30% of Rs. 8,500/- = Rs. 11,050/- per month or Rs. 1,32,600/- p.a. After deducting 1/5th amount (i.e. 11,050-2,210) towards the living and personal expenses of the deceased, his contribution to the family is determined as Rs. 8,840/- per month or Rs. 1,06,080/- p.a. By applying the multiplier of 14, the total loss of dependency is assessed at Rs. 14,85,120/-. We further award a sum of Rs. 15,000/- towards funeral expenses, Rs. 40,000/- under the head of loss of consortium and Rs. 15,000/- towards loss of estate. We accordingly increase the compensation awarded to the claimants/appellants by the Tribunal from Rs. 7,89,000/- to Rs. 15,55,120/-. The claimants/appellants shall further be entitled to interest @ 8% p.a. on the increased amount of compensation from the date of filing of the claim petition till the actual payment is made.

¶65

The appeal is allowed in part. The impugned judgement and award stand modified to the extent indicated hereinabove.

¶66

The parties shall bear their respective costs.

¶67

Order Date :- 20.11.2019 Shalini

Smt. Urmila Devi and 6 Ors. v. Nathuni Ray and 2 Ors.

Case brief

What is this about?

What did the court decide?

Smt. Urmila Devi and 6 Ors. v. Nathuni Ray and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Kavita Devi Vs Satendra

Mohit Verma Vs Suman Verma

Awadh Kishore Singh Vs Smt. Urmila Singh and Others

Zila Basic Shiksha Adhikari Lalitpur Vs Smt. Shaheen Sani

Smt. Urmila Devi and Others Vs Nathuni Rai and Others

United India Insurance Co. Ltd. Vs Smt. Urmila and Others