High Court
Case Details
(1) RESERVED ON 16.02.2022 DELIVERED ON 13.4.2022 Court No. - 4 Case :- FIRST APPEAL FROM ORDER No. - 3883 of 2009 Appellant :- Smt. Shanti Devi Ojha And Ors. Respondent :- U.P.S.R.T.C. And Ors. Counsel for Appellant :- Ram Singh Counsel for Respondent :- Jyotsna Srivastava,Jyotsna Srivastava,S.K. Mishra,S.K.Mishra Hon'ble Salil Kumar Rai,J. Heard Sri Ram Singh, the counsel for the appellants, Ms. Jyotsna Srivastava, Advocate representing the Insurance Company as well as Sri S.K. Mishra, Advocate representing the U.P.S.R.T.C. The present First Appeal From Order under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, ‘Act’) has been filed by the claimants against the judgment and award dated 10.9.2009 passed by the Motor Accident Claims Tribunal, Allahabad in Motor Accident Claim Petition No. 193 of 1990 (Smt. Shanti Devi Ojha & 2 Ors. vs. Uttar Pradesh State Road Transport Corporation, Lucknow). The facts of the case are that the claimants – appellants claiming to be dependants of one Pradeep Kumar Ojha filed Motor Accident Claim Petition No. 193 of 1990 under Section 166 of the Act alleging that Pradeep Kumar Ojha died in an accident caused due to rash and negligent driving of the vehicle Bus No. U.M.Z. - 9392. The accident occurred on 12.12.1989 at 8:30 p.m. The Uttar Pradesh State Roadways Transport Corporation, i.e., the opposite party no. 1 was the owner of the offending vehicle. It was stated in the claim petition that, at the time of his death, Pradeep Kumar Ojha was aged about 29 (2) years. It was further pleaded that the deceased was a government servant drawing a salary of Rs.2,200/- per month. On the said averments, the claimants prayed for a compensation of Rs.6,34,000/- for the death of Pradeep Kumar Ojha. The claimant – appellant no. 1 is the mother of the deceased and the claimant – appellant nos. 2 and 3 are the sisters of the deceased. A reading of the claim petition shows that at the time of filing of the claim petition, appellant no. 2 was 30 years old and appellant no. 3 was 25 years old and both were unmarried. The opposite party no. 1 filed its written statement and in its written statement, the opposite party no. 1 admitted the ownership of the vehicle and the factum of accident but denied the negligence of the driver of the vehicle in causing the accident and also the entitlement of the claimants to compensation. The vehicle was insured with opposite party no. 3. Issues were framed by the Tribunal regarding the factum of accident, the negligence of the driver of the offending vehicle in causing the accident, the entitlement of the claimants – appellants to compensation as well as the amount of
Legal Reasoning
compensation payable to the claimants and the defendant liable to pay compensation. In its judgment and award dated 10.9.2009, the Tribunal
Legal Reasoning
held that Sri Pradeep Kumar Ojha died due to the injuries suffered in the accident caused due to rash and negligent driving of the offending vehicle by its driver. In the proceedings before the Tribunal, the opposite party no. 1, i.e., the owner of the vehicle did not produce the driving licence of the driver of the vehicle, therefore, the Insurance Company was held not to be liable to pay compensation to the claimants and the opposite (3) party no. 1 – the owner of the vehicle was held liable to pay compensation. In its award, the Tribunal held that the claimant – appellant no. 1, being the mother of the deceased, was entitled to compensation but the claimant – appellant nos. 2 and 3, who were sisters of the deceased, were not entitled to any compensation. In its award the Tribunal, relying on the certificate of the Secretary of the Joint Entrance Examination Board, Lucknow held that the monthly salary drawn by the deceased was Rs.1,835/- per month. The Tribunal, considering that the deceased was a bachelor, deducted 2/3 as his personal expenses and on the aforesaid basis calculated the dependency of appellant no. 1 as Rs.7,340/-. The Tribunal applied a multiplier of 8 on the age of appellant no. 1, i.e., the mother of the deceased who was found to be 55 years of age at the time of accident. Applying the aforesaid principles, the Tribunal awarded a compensation of Rs.58,720/- to the appellant no. 1 as pecuniary damages and Rs.5,000/- for loss of love and affection and further Rs.2,000/- for funeral expenses. Thus, the Tribunal awarded a total compensation of Rs.65,720/ to the claimant – appellant no. 1 with 6% interest from the date of filing the claim petition till the date of payment of compensation excluding the period for which the claim petition had stood dismissed. The present appeal has been filed for enhancement of compensation as awarded by the Tribunal. It was argued by the counsel for the appellants that the multiplier should have been determined on the age of the deceased and not on the age of appellant No. 1. It was further argued that the Tribunal had wrongly deducted 2/3 as personal expenses from the income of the deceased and while considering the multiplicand has not taken into consideration (4) the future prospects of the deceased. It was further argued that the claimant no. 1 has been awarded a very meagre compensation under the conventional heads. It was also argued by the counsel for the appellants that the appellant nos. 2 and 3 were also entitled to compensation as they were unmarried sisters of the deceased, and, therefore his legal representatives. It was further pleaded by the counsel for the appellants that the appellants are entitled to interest of 7.5% per annum on the awarded amount. It was argued that for the aforesaid reasons, the compensation is to be increased and the appeal is to be allowed. Rebutting the arguments of the counsel for the appellants, the counsel for the opposite party no. 1 has supported the award dated 10.9.2009 and the reasons given by the Tribunal in support of its findings. The counsel for the opposite party no. 1 has argued that the compensation awarded by the Tribunal is not liable to be increased and the appeal is liable to be dismissed. I have considered the rival submissions of the counsel for the parties. Before proceeding further, it may be noted that no cross appeal or cross objection has been filed by the opposite parties, i.e., the owner of the vehicle (opposite party no. 1) or the Insurance Company, i.e., opposite party no. 3 challenging the findings of the Tribunal regarding the factum of accident, the negligence of the driver of the offending vehicle, and the liability of opposite party no. 1 to pay compensation. Therefore, this Court is not entering into any discussion on the aforesaid issues and the judgment is being restricted to the amount of compensation which the claimants were entitled to. (5) The counsel for the appellants argued that at the time of his death, the deceased was 24 years of age and, therefore, the multiplier has to be determined accordingly. In support of his contention, the counsel for the claimants – appellants relies on the post-mortem report as well as the extract of the family register in which the age of the deceased was recorded as 24 years on 2.1.1990. No other evidence, e.g. High School Certificate or the service book of the deceased was produced to prove the age of the deceased. In the claim petition, the age of the deceased was disclosed as 29 years and even in the memorandum of appeal filing the present appeal, the age of the deceased is stated to be 29 years. Thus, it is held that, at the time of his death, the deceased was 29 years old. So far as the issue regarding the entitlement of claimant – appellant nos. 2 and 3 and their dependency while deducting the personal and living expenses of the deceased are concerned, it was held in Sarla Verma (Smt) & Ors. vs Delhi Transport Corporation & Anr. 2009 (6) SCC 121 that “subject to the evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.” The claim petition indicates that the claimant – appellant nos. 2 and 3 were 30 years and 25 years of age, respectively. A perusal of the records and the testimony of the claimant – appellant no. 1 shows that the father of the deceased had retired from service and was alive during the proceedings before the Tribunal and was receiving pension. In her statement recorded on 12.9.2003, the claimant no. 1 as PW – 1 has stated (6) that both her daughters were dependent on the pension of their father. In view of the aforesaid, the claimant – appellant nos. 2 and 3 are not entitled to compensation for the death of their brother Sri Pradeep Kumar Ojha and are also not to be considered while determining the deductions to be made for the personal expenses of the deceased in deciding the multiplicand. The fact that the deceased at the time of his death was working as an Accountant and was getting Rs.1,835/- per month as salary has not been disputed by the parties. It is the admitted case of the parties that the deceased was a bachelor. In Sarla Verma (supra), it was held that in regard to bachelors, normally, 50% is to be deducted as personal and living expenses. Further, it was held in National Insurance Company Ltd. vs Pranay Sethi & Ors. (2017) 16 SCC 680, that the multiplicand has to be calculated after adding 50% of annual salary towards future prospects where the deceased had a permanent job and was below the age of 50 years. Thus, 50% is to be added to the salary of the deceased towards future prospects and 50% has to be deducted as his personal and living expenses while determining the multiplicand. So far as the multiplier is concerned, it has been settled in Sarla Verma (supra) and in the subsequent cases that the multiplier has to be determined considering the age of the deceased and not on the basis of the age of the claimants. Thus, according to Sarla Verma (supra), a multiplier of 17 has to be applied while determining the pecuniary damages. In view of the law laid down in Pranay Sethi (supra) as well as in Magma General Insurance Company Ltd. vs. Nanu Ram 2018 SCC OnLine SC 1546, the appellant no. 1 is also (7) entitled to compensation for loss of Filial Consortium, funeral expenses and loss of estate. The compensation payable to the claimant no. 1 is to be calculated on the aforestated principles and is re-computed as below :- (i) Salary of the deceased Rs.1,835/- per month, i.e., Rs.1835/- x 12 = Rs.22,020/- per annum. (ii) 50% deductions for the personal and living expenses of the deceased = Rs.11,010/- (iii) Future prospects, i.e., 50% to be added to the salary of the deceased = Rs.5,505/- Thus, the multiplicand = Rs. 16,515/- (Rs. 22,020+Rs. 5,505 - Rs. 11,010/-) (iv) Applying the Multiplier of 17, Pecuniary Damages = Rs. 16,515 x 17 = Rs. 2,80,755/- (v) Loss of Filial Consortium = Rs.40,000/- (vi) Loss of estate = Rs.15,000/- (vii) Funeral expenses = Rs.15,000/- Thus, the total compensation payable to the appellants(iv+v+vi+vii) = Rs. 3,50,755/- (Rs. 2,80,755 + Rs. 40,000 + Rs. 15,000 + Rs. 5,000) Apparently, the compensation awarded by the Tribunal to the claimants is very low and the claimant no. 1 is entitled to compensation as determined above. It is held that the claimant no. 1 is entitled to a compensation of Rs. 3,50,755/-. The award of the Tribunal is modified to the extent stated above. (8) It is clarified that the compensation as determined above shall carry the same interest as awarded by the Tribunal.
Decision
The appeal is allowed and the award of the Tribunal is modified to the extent indicated above. The balance amount / excess amount as awarded by this Court in the present appeal shall be deposited by the Uttar Pradesh State Roadways Transport Corporation (New India Assurance Company Ltd.), i.e., opposite party no. 1 in the Tribunal within three months from today. The amount so deposited by the opposite party No. 1 under the present order of this Court, shall in turn be deposited by the Motor Accident Claims Tribunal, Allahabad in the highest interest bearing fixed deposit schemes, either of the post office or of any nationalized bank. The receipts of the fixed deposit shall be handed over to the appellant no. 1 who shall be entitled to withdraw the maturity amount on the maturity of the fixed deposits. The maturity amount shall be credited by the bank/post office in any savings account held by the appellant no. 1 singly. The concerned bank or post office shall not permit any loan or advance against the fixed deposits made in favour of the appellant no. 1. The Tribunal, while depositing the amount in any fixed deposit scheme, shall communicate the directions issued by this Court to the concerned bank/post office. With the aforesaid directions and observations, the appeal is allowed. Parties shall bear their own cost. The office shall transmit the records of the case to the Tribunal, at the earliest. Order Date :- 13.4.2022 Satyam/Anurag Digitally signed by SATYAM AGRAHARI Date: 2022.04.13 13:35:41 IST Reason: Location: High Court of Judicature at Allahabad