High Court
Case Details
Neutral Citation No. - 2023:AHC:154837 Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 450 of 2007 Appellant :- Smt. Jhunni And Others Respondent :- The New India Assurance Company Ltd. And Another Counsel for Appellant :- Mohd. Naushad Siddiqui,Shreesh Srivastava Counsel for Respondent :- Ajay Singh Hon'ble Saral Srivastava,J. 1. Heard learned counsel for the appellants and learned counsel for the respondents. 2. The present appeal has been filed by the appellants against the award dated 03.11.2006 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Kanpur Dehat In M.A.C.P. No.48 of 2006. 3. Challenging the said award, learned counsel for the claimants/appellants has contended that the Tribunal has erred in law in holding the negligence of the deceased, namely, Late Chand Khan in the accident to the extent of 50%, who was driving the scooter No.U.P.77-2572. It is submitted that the finding of the Tribunal on the issue of 50% negligence of the deceased in the accident is perverse and based on no evidence on record. It is further submitted that the appellants had produced PW2-Mohd. Zahir who was the eye witness of the accident, who deposed before the Tribunal that the accident was the result of negligence of the driver of the offending bus No.USZ-3486, and in the absence of any evidence rebutting the testimony of PW2, the Tribunal has erred in law in holding the negligence of the deceased to be 50% in the accident. Accordingly, it is submitted that the finding of the Tribunal on the issue of negligence of the deceased in the accident is liable to be set aside. 4. It is further contended that no amount towards future prospect has been awarded by the Tribunal, whereas considering the age of the deceased i.e.22 years, the claimants/appellants are entitled to 40% towards future prospect in view of the judgement of Apex Court in the case of National Insurance Company Limited Vs.
Legal Reasoning
Pranay Sethi and Others 2017 (16) SCC 680. It is contended that the Tribunal has erred in law in applying the multiplier of 17, wheres the Tribunal ought to have applied multiplier of 18 considering the age of the deceased in view of the judgement of the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 (6) SCC 121. It is submitted that a very meagre amount of Rs.1800/- has been awarded by the Tribunal towards non-pecuniary damages, whereas, claimants/ appellants are entitled to Rs.30,000/- towards the aforesaid head in view of the judgement of Apex Court in the case of Pranay Sethi (supra). 5. Per contra, learned counsel for the respondents would contend that the Tribunal while holding the negligence of the deceased to the extent of 50% held that the deceased was pillion rider of the scooter. It is further submitted that it is evident from the testimony of PW2 that it was a case of accident of two vehicles, namely, offending bus No.USZ-3486, and scooter No.U.P.77-2572 coming from opposite direction, and therefore, the manner in which the accident took place reveals that there was some negligence of the deceased in the accident, therefore, the Tribunal has rightly held the negligence of the deceased to be 50% in the accident.It is contended that the deceased was bachelor at the time of accident, therefore, considering the judgement of the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 (6) SCC 121, Tribunal should have deducted 1/2 towards personal expenses of the deceased instead of 1/3. Thus, it is contended that the compensation awarded by the Tribunal is just and proper and does not call for any interference by this Court. 6. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. 7. The Tribunal has held 50% negligence of the deceased in the accident. The claimants/appellants produced PW2, eye witness of the accident, who deposed that the accident was the result of rash and negligent driving of the driver of the offending bus and the respondents did not lead any evidence in rebuttal to the testimony of PW2. In such view of the fact, the testimony of PW2 regarding sole negligence of the driver of the offending bus in the accident could not have been ignored by the Tribunal in recording the finding with respect to the negligence of the deceased in the accident.In such view of the fact, the finding of the Tribunal on the issue of 50% negligence of the deceased in the accident cannot be sustained and is set aside. Accordingly, it is held that the accident was the result of sole negligence of driver of offending bus. 8. So far as the quantification is concerned, the submission of learned counsel for the claimants/appellants in respect of future prospect and grant of non-pecuniary expenses has got force in view of the judgement of Apex Court in the case of Pranay Sethi (supra) and thus, following the aforesaid judgement of Apex Court, claimants/appellants are entitled to 40% towards future prospect considering the age of the deceased, and further non- pecuniary damages awarded by the Tribunal is enhanced from Rs.1800/- to Rs.30,000/-. 9. The submission of learned counsel for the claimants/appellants with regard to deduction of 1/4th towards personal expenses of the deceased in view of the judgement of Apex Court in the in the case of Sarla Verma (supra) has got substance. Thus, it is provided that 1/4 should be deducted towards personal expenses of the deceased instead of 1/3 from the income of the deceased for computation of compensation. 10. The submission of learned counsel for the respondents with regard to deduction of 1/2 towards personal expenses of the deceased in view of the judgement of Apex Court in the case of Sarla Verma (supra) has got substance. Thus, it is provided that 1/2 should be deducted towards personal expenses of the deceased instead of 1/3 from the income of the deceased for computation of compensation. 11. Further, the submission of learned counsel for the appellant that if the award is not deposited within two months from the date of award, the Insurance Company shall be liable to pay interest at the rate of 6% per annum from the date of institution of claim petition is illegal is concerned, it is settled in law that the claimants/appellants are entitled to interest from the date of institution of claim petition till the payment of award. In such view of the fact, it is directed that the entire amount of compensation shall carry 6% interest from the date of institution of claim petition till its payment. 12. For the reasons given above, the appeal is partly allowed and award of the Tribunal is modified to the extent as indicated above. Order Date :- 2.8.2023/NS Digitally signed by :- NITIN KUMAR High Court of Judicature at Allahabad