Partly allowed

Smt. Vidya Devi Mishra and Others v. Yash Pal and Others

Allahabad HC23 Jan 2023FAFO/677/1995

Case brief

AI extract

What is this about?

The High Court allowed a first appeal challenging a motor accident compensation award. The Court recalculated the compensation to include future loss of income and non-pecuniary damages, increased the total payable amount, and directed specific guidelines for payment and interest calculation.

What did the court decide?

Compensation increased to Rs. 3,62,080; order modified to include future loss and non-pecuniary damages. Insurance company directed to deposit amount within 12 weeks with specific interest apportionme

Smt. Vidya Devi Mishra and Others Vs Yash Pal and… — Motor Accident Claims | Allahabad HC (2023)

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A.F.R.

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Court No. - 44

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Case :- FIRST APPEAL FROM ORDER No. - 677 of 1995

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Appellant :- Smt. Vidya Devi Mishra And Others Respondent :- Yash Pal And Others Counsel for Appellant :- ,Ravi Sahu,Shyam Singh Sengar Counsel for Respondent :- ,Nagendra Kumar Srivastava

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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1 . Heard Shyam Singh Sengar, learned counsel for the appellants, Sri Nagendra Kumar Srivastava, learned counsel for respondents.

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2 . This appeal, at the behest of the claimants, challenges the judgement and decree dated 10.04.1995 passed by M.A.C.T/I-Additional District Judge, Shahjahanpur (hereinafter referred to as “Tribunal”) in M.A.C.P. No. 37 of 1998. The accident is not in dispute. His death by the accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The only issue to be decided is, the quantum of compensation awarded.

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3 . Brief facts as culled out from the record are that a truck bearing registration no. UTL-81 came in the night of 24.04.1988 at Pandey Filling Station petrol pump, Nawazpur and the driver of the said truck parked the truck beneath a tree infront of the office. In the morning of 22.04.1988 at 7:30 a.m another truck bearing registration no. UTI-1856 came on the petrol pump to take oil from the northen side and pushed parked truck no. UTI-1856 from behind as a result of which the truck no. UTL-81 started and proceeded ahead about 20-25 paces and dashed against a ‘Takhat’ on which deceased Satya Narain, Karuna Shankar Bajpai and Ram Naresh Tiwari were sitting and talking, Karuna Shankar Bajpai and Ram Naresh Tiwari suceeded in running from there but Satya Narain could not get up as a result of which he received severe injuries. He had been rushed to the District Hospital, Shahjahanpur for treatment but the doctors declared him dead.

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4 . The deceased was 45 years of age at the time of accident and he was in the vocation of getting religious ceremonies performed. He was the only

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bread earner in the family. He was survived by his widow, two major sons and a major daughter. In the year 1988, a person in the vocation of doing religious cermons can definitely be said to be earning Rs. 2000/- p.m which cannot be disputed. The tribunal has considered his income to be Rs. 1200/p.m, granted multiplier of 10, deducted 1/3rd towards expenses upon himself and ultimately assessed the total compensation to be Rs. 96,000/-. 5. It is submitted by learned counsel for the appellants that in the year 1988, a person in the vocation of doing religious cermons can definitely be said to be earning Rs. 2000/- p.m which cannot be disputed. The tribunal has considered his income to be Rs. 1200/-p.m, granted multiplier of 10, deducted 1/3rd towards expenses upon himself. It is further submitted that the Tribunal has not granted any amount towards future loss of income which should be granted in view of the decision of the Apex Court National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093.

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It is submitted by learned counsel for the appellant that no amount under the head of future loss of income has been granted. It is also submitted that the no amount under the non-pecuniary heads is awarded and the interest awarded are also on the lower side and requires to be enhanced

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Per contra, As against this, it is submitted by the learned counsel for the respondent that the quantum awarded by the Tribunal is just and proper and under the old act no future loss of income was granted and hence, does not call for any interference of this Court.

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After hearing the counsel for the parties and perusing the judgment and order impugned, this Court feels that his income can be considered to be Rs.1800/- per month. To which as the deceased was 45 years at the time of accident, 30% of the income would have to be added as future loss of income to the deceased. The submission of the Sri N.K. Srivastava, learned counsel for the respondent cannot be accepted in view of the judgement of the Apex Court in Gobald Motor Services Ltd. and another Vs. R.M.K.Veluswami and other, 1962, SCR(1) 929 as this is matter of the year 1988 which falls under the old act namely M.V. Act, 1939.

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Further, this Court feels that the quantum/compensation requires to be recalculated. The Tribunal has erred in not considering the decision in Sarla Verma (Supra), and has not granted any amount towards non-pecuniary damages. We, therefore, grant Rs.1,00,000/- under the non pecuniary heads. Hence, the total compensation payable to the appellants is computed herein below:

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i. Income : Rs.1800/-

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ii. Percentage towards future prospects : 30% namely Rs.540/iii. Total income : Rs. 1800 + 540 = Rs. 2340/iv. Income after deduction of 1/3rd : Rs. 1560/-

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v. Annual loss : Rs. 1560 x 12 = Rs. 18,720/vi. Multiplier applicable : 14 vii. Total loss : Rs. 18,720 x 14 = Rs. 2,62,080/xii. Amount under non-pecuniary head : Rs.1,00,000/xiii. Total compensation : 3,62,080/-

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10 . The insurance company was held to be liable only for Rs. 25,000/- by the tribunal which is also under challenge. I have perused the policy of the Insurance Company which is at paper no. 50 GA. Despite its findings that the liability is increased and the compensation cases would be governed by M.V. Act, 1988, the learned tribunal has committed a grave error in saddling liability only to the tune of Rs. 25,000/- which is also one of the bones of contention of the appellants herein. As far as amount be first deposited, however, the matter has remained pending for 22 years rate of interest after the appeal would be 6% in view decision of the Apex Court in Civil Appeal No.242/243 of 2020 (National Insurance Company Ltd. vs Birender and others) decided on 13 January, 2020 which is the latest in point of time and 7.5% from the date of filing of the claim petition till decision by tribunal.

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No other grounds are urged orally when the matter was heard.

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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

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respondent-Insurance Company shall deposit the additional amount within a period of 12 weeks from today with interest as directed above.

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On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. 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 illiterate or rustic villagers.

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In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri 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 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) while disbursing the amount.

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Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

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The Tribunal shall follow the guidelines issued by the Apex Court in

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Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.

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Record be sent back to the tribunal.

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18 . This Court is thankful to Sri Shyam Singh Sengar, learned counsel for the appellants and Sri Nagendra Kumar Srivastava, learned counsel for respondents for ably assisting this Court.

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Order Date :- 23.01.2023 PS

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Digitally signed by :- POOJA SHARMA High Court of Judicature at Allahabad

Smt. Vidya Devi Mishra and Others v. Yash Pal and Others

Case brief

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Smt. Vidya Devi Mishra and Others v. Yash Pal and Others

Case brief

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