Miscellaneous Appeal No. 782 of 2010 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.782 of 2010 ====================================================== 1. Most.Musarat Jahan, W/o late Shamim Akhtar Amiri 2. Shadab Akhatar Amiri, S/o late Shamim Akhatar Amiri 3. Imtiaz Akhatar Amiri, 15 years, S/o late Shamim Akhatar Amiri 4. Ayuyaz Akhatar Amiri, 11 years, S/o late Shamim Akhatar Amiri 5. Shahnawaz Akhatar 11 years, S/o late Shamim Akhatar Amiri 6. Isharat Praveen 09 years, D/o late Shamimi Akhatar Amiri 7. Nuzhat Praveen 07 years m/d/o late Shamim Akhatar Amiri 8. Azmat Praveen 03 years m/d/o late Shamim Akhatar Amiri 9. Shahwaz Akhatar 01 years m/s/o late Shamim Akhatar Amiri All resident of village Imadpur, P.O. Bihar Sharif, P.S. Bihar, District-Nalanda .... .... Appellant/s Versus 1. Md. Omair, S/o Md. Ismail, owner of truck no. WMQ/856 AJG, North range, Calcutta 17, West Bangal 2. Shri Gonaur Ram, S/o late Jaleshwar Ram, driver of truck no. WMQ 856 village Amarakh P.O. & P.S. Maniyari, District-Muzaffarpur 3. The Branch Manger, New India Assurance Co. Ltd. at Kachhari Road, P.O. Bihar Sharif, District-Nalanda .... .... Respondent/s ====================================================== Appearance: For the Appellant/s : Mr. Rabi Bhushan Prasad For the Respondent/s : Mr. M.P. Jaiswal ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT 07. 30-08-2013 Heard Mr. Rabi Bhushan Prasad, learned counsel appearing for the appellants and Mr. M.P. Jaiswal, learned counsel appearing for the respondent no. 3, the New India Assurance Company Limited. This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) is directed against the judgment and award dated 19.06.2010 and 26.6.2010 passed by
Legal Reasoning
Shri Arun Kumar Singh, 1st Additional District Judge-cum- Motor Patna High Court MA No.782 of 2010 (7) dt.30-08-2013 2 Vehicle Accident Claim Tribunal, Nalanda at Bihar Sharif in Claim Case No. 50 of 1996, whereby the tribunal while allowing the claim case has awarded a compensation of Rs. 6,04,072/- which is inclusive of the amount of the compensation plus the loss towards consortium plus expenses towards cremation. The tribunal after reducing the amount paid towards interim compensation of Rs. 50,000/- has directed the insurance company to make payment of Rs. 5,54,072/- to the claimants and upon their failure to do so within one month from the date of the order, the claimants were allowed interest @ 6 per cent per annum payable from the date of the order. The claimants are before this Court in appeal questioning the quantum of compensation on the following grounds namely; (a) The deductions towards personal and living expenses ought to have been 1/5th in the light of the judgment of Sarla Verma reported in (2009) 6 SCC 121 and not 1/3rd as held by the tribunal. (b) The interest should have been awarded from the date of filing of the claim case and not from the date of the award; and (c) The tribunal has not taken note of the pay revision which took place from 01.01.1996 meaning thereby the element of future prospects. I have heard Mr. Rabi Bhushan Prasad appearing for the Patna High Court MA No.782 of 2010 (7) dt.30-08-2013 3 claimant-appellants and Mr. M.P. Jaiswal appearing for the respondent no. 3 the insurance company. It is not in dispute that the compensation awarded under the claim case has since been paid to the claimants. The issue is whether the claimants are entitled to an enhancement in the quantum of compensation in the light of the issue raised by Mr. Prasad appearing on their behalf on the strength of the judgment rendered in the case of Sarla Verma (supra). On the issue of interest, it is the contention of learned counsel appearing for the appellants that the order of the tribunal is not correct since the delay cannot be attributed to the claimants. The prayer for enhancement has been contested by Mr. Jaiswal appearing for the insurance company. A counter affidavit has also been filed on behalf of the insurance company contesting the claim. It is the submission of Mr. Jaiswal that the computation of the compensation has been made in the light of the facts and evidence available on record and thus requires no interference. On the issue of deduction towards personal living expenses, it is the submission of Mr. Jaiswal that since the claimants have failed to demonstrate whether or not the children of the deceased continued to be dependent, the deduction made by the tribunal cannot be faulted with. On the issue of interest, learned counsel Patna High Court MA No.782 of 2010 (7) dt.30-08-2013 4 has referred to the finding of the tribunal to submit that since the claimants were themselves negligent in the disposal of the claim case, hence they cannot seek premium over their own faults. On the issue of pay revision, it is stated that since the same had not taken effect on the date of the accident, hence the appellant was not entitled to any enhancement on that account. I have heard learned counsel for the parties and I have perused the award impugned. The computation of compensation has been discussed by the tribunal while dealing with issue no. 6 at paragraph 7 of the judgment. The tribunal while admitting to the salary of the deceased of Rs. 7,194/- per month and even while taking note of the submission of the claimants for deductions of 1/5th towards personal living expenses of the deceased in the light of the judgment rendered in the case of Sarla Verma (supra), has rejected the contention simply by observing that the judgment would not be applicable in the present case. No reasons has been assigned by the tribunal to reject the contention or for not noticing the decision on this issue as found in paragraph-30 of the said judgment. The Supreme Court in paragraph-30 of the judgment passed in the case of Sarla Verma has held that there shall be a deduction of 1/3rd where the number of dependent family members Patna High Court MA No.782 of 2010 (7) dt.30-08-2013 5 is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5th where the number exceeds six. The number of dependents as is manifest from the memo of appeal is nine and thus the deductions towards personal and living expenses would be only 1/5th of the salary and that answers issue no. ‘a’ raised by the appellants. The second contention raised by the claimants for enhancement, is relying upon the pay revision which took place w.e.f. 1.1.1996. Meaning thereby additions towards future prospects. Although the Supreme Court in paragraph-24 of the judgment passed in Sarla Verma case while discussing the issue of future prospects has held that if the deceased is aged more than 50 years then he would not be entitled to additions towards future prospects but the case in hand is on a different pedestal. The additions sought is on account of pay revision which admittedly took place w.e.f. 1.1.1996 and thus even if the deceased aged 54 years may not have been entitled to additions towards future prospects on account of promotion, increments or the like but where a revision is an admitted fact, then definitely the deceased was entitled to the said benefit more particularly when the accident took place on 25.3.1996 i.e. after the pay revision. Patna High Court MA No.782 of 2010 (7) dt.30-08-2013 6 Applying the thumb rule in terms of the Sarla Verma judgment by taking the lower percentage of 30%, I am of the opinion that as a consequence of the pay revision, the claimants were entitled to additions of 30% of the existing salary by way of future prospects. It is now to be seen as to what would be the reflection of my conclusions above mentioned, on the compensation amount. The monthly salary drawn by the deceased was admittedly Rs. 7194/-. Add 30% thereon by way of pay revision, the figure would come to Rs. 7194 + 2158.2=9352.2 or say 9352 p.m. and Rs. 1,12,224 per annum which is the estimated gross salary. The element of income tax payable thereon, on an estimated basis after giving adjustments towards standard deduction, investments towards L.I.C., G.P.F. etc, would be Rs.10,000/- approximately. Thus the net annual salary drawn by the deceased after giving effect of pay revision and income tax would come to Rs. 1,12,224/- less 10,000/-=Rs. 1,02,224. The deductions towards the personal living expenses of the deceased in the present case being 1/5th, a sum of Rs. 1,02,224 x 1/5=20444.8 or say Rs.20,445/- would have to be deducted towards personal living expense of the deceased i.e. Rs. 1,02,224- 20445=Rs. 81779/- which is the multiplicand. Patna High Court MA No.782 of 2010 (7) dt.30-08-2013 7 Applying the multiplier of 11 as applied by the tribunal the compensation amount would come to Rs. 81779 x 11=8,99,569/-. In terms of Schedule-2 of the Act the claimants were entitled to funeral expenses, loss of consortium, loss of estate and medical expenses, if any. Since there is no medical expenses in the present case, hence the claimants would not be entitled to any amount thereunder but the perusal of the impugned award manifests that there is no award as against loss of estate meaning thereby the over and above the loss of dependency the claimants would be entitled to Rs. 2,000/- towards funeral expenses, Rs. 5,000/- towards loss of consortium and Rs. 2,500/- towards loss of estate. The compensation amount payable would thus be Rs. 8,99,569+2000+5000+2500=Rs. 9,09,069/-. Since the claimants have already been paid the interim compensation amount of Rs. 50,000/- and the amount payable under the award i.e. Rs. 5,75,749/- hence the balance compensation payable to the claimants after enhancement would be Rs. 2,83,320/-. That would bring this Court to the last issue raised by the claimants i.e. interest. I have gone through the order sheet in the claim case and I do find that the matter has definitely been delayed Patna High Court MA No.782 of 2010 (7) dt.30-08-2013 8 at the instance of the claimants to a large extent and in which view of the matter the observation of the tribunal in denying interest from the date of filing of the application cannot be faulted with. However, since this is a case of enhancement the balance amount of compensation of Rs. 2,83,320/- payable to the claimants would be accompanied with interest @ 6 per cent payable from the date of the award until the date of payment by the respondent Insurance Company. This appeal is allowed but in the circumstances without any order as to costs. Let the lower court records be returned to the tribunal concerned, forthwith. S.Sb/- (Jyoti Saran, J)