High Court
Case Details
Court No. - 4 Case :- FIRST APPEAL FROM ORDER No. - 2010 of 2006 Appellant :- Mangla Prasad And Others Respondent :- Jadawati Singh And Others Counsel for Appellant :- Abhishek Kumar Srivastava,Mohd. Asim Zulfiquar Counsel for Respondent :- ,Rajeev Ojha Hon'ble Salil Kumar Rai,J. Heard the counsel for the appellants - claimants as well as the counsel for the New India Assurance Company Ltd. The present appeal has been filed by the claimants under Section 173 of the Motor Vehicles Act, 1988 (hereafter referred to as, 'Act') to increase the compensation amount awarded by the Motor Accident Claims Tribunal, Allahabad through its award dated 28.2.2006 passed in Motor Accident Claim Petition No. 426 of 2004. The facts of the case are that the appellant no. 1 (who died during the pendency of the appeal) filed Motor Accident Claim Petition No. 426 of 2004 under Section 163-A of the Act claiming a compensation of Rs.2,25,000/- with 15% interest per annum from the date of accident alleging that his son Sadhu, aged about 8 years, died in an accident caused due to rash and negligent driving of the vehicle, i.e., Truck No. 42 / T-2412 by its driver. The accident occurred on 27.4.2004 at 6:20 a.m. It was further stated in the claim petition that the offending vehicle was insured with the New India Assurance Company Ltd., i.e., opposite party no. 2. The owner of the vehicle, i.e., opposite party no. 1 and the Insurance Company, i.e., opposite party no. 2 contested the claim petition and filed their written statement. In his written statement, the owner of the vehicle denied that the accident arose out of the use of his vehicle or due to rash and negligent driving of the vehicle by its driver. The owner of the vehicle further claimed that on the date of accident, the vehicle was insured with opposite party no. 2 and the driver of the vehicle had a valid driving licence, therefore, the Insurance Company was liable to pay compensation. It may be noted that the driver of the vehicle was not impleaded as
Facts
defendant in the claim petition and has also not been impleaded as an opposite party in the present appeal. In the claim petition, the Tribunal framed four issues. Issue No. 1 related to the factum of accident and the plea of the claimants that Sadhu had died in an accident which arose out of the use of the offending vehicle and due to its rash and negligent driving, Issue No. 2 was as to whether on the date of accident, the vehicle was insured with opposite party no. 2, i.e., Insurance Company, Issue No. 3 was as to whether at the time of accident, the driver of the vehicle had a valid driving licence and Issue No. 4 was regarding the amount of compensation payable to the claimants and the opposite party liable to pay compensation. On Issue No. 1, the Tribunal held that Sadhu, the son of the claimants, had died in an accident occurring on 27.4.2004 at 6:20 a.m. caused due to rash and negligent driving of the offending vehicle by its driver. Issue Nos. 2 and 3 were decided in favour of the owner of the vehicle and the Tribunal held that at the time of accident, the vehicle was insured with opposite party no. 2 and the driver of the vehicle had a valid driving licence. So far as Issue No. 4 was concerned, the Tribunal determined compensation on a notional income of Rs.15,000/- and after applying a multiplier of 15. The Tribunal also deducted 1/3 from the notional income of the deceased and held the dependency to be Rs.10,000/- per annum. The Tribunal also awarded Rs.2,000/- for funeral expenses to the claimants. Thus, the Tribunal awarded a total compensation of Rs.1,52,000/- to the claimants with an interest at the rate of 6% per annum from the date of filing the claim petition till the date of payment. The present appeal has been filed praying that the compensation awarded by the Tribunal is very meager and contrary to law and for increasing the compensation payable to the claimants.
Legal Reasoning
and are not being considered by this Court in detail. In Kishan Gopal (supra), which has also been followed by a Division Bench of this Court in its judgment and order dated 14.2.2017 passed in First Appeal From Order No. 1580 of 1993 (Nagma Bano vs. Harish Chandar Gupta & 3 Ors.), the compensation in case of death of a child was assessed on the notional income of Rs.30,000/- per annum and after applying a multiplier of 15. The accident in Kishan Gopal (supra) occurred on 19.7.1997. The accident in the present case took place on 27.4.2004, i.e., almost 7 years after the date of accident which was the subject-matter in Kishan Gopal (supra). In the circumstances, it would be appropriate that in the present case also, compensation is determined on the notional income of Rs.30,000/- per annum. The judgments of the Supreme Court in Kurvan Ansari (supra) as well as the Division Bench of this Court in Roop Lal (supra) do not lay down any rule that pecuniary damages in cases of the death of a child in a motor accident has to be necessarily determined on the notional income of Rs.25,000/- per annum. It is to be further noted that in none of the cases referred above, i.e., Kishan Gopal (supra), Nagma Bano (supra), Kurvan Ansari (supra) and Roop Lal (supra), deductions have been made from the notional income of a child victim in consideration of the expenses which the deceased would have incurred towards maintaining himself, had he been alive and, therefore, no deductions have to be made from the pecuniary damages payable to the claimants. Thus, in the present case, the pecuniary damages payable to the claimants for the death of their son in the accident is to be calculated on the notional income of Rs.30,000/- per annum by applying a multiplier of 15 and without making any deductions. Thus, the claimants are entitled to a compensation of Rs.4,50,000/- (Rs.30,000 X 15) as pecuniary damages for the death of their son in the accident. So far as compensation for non-pecuniary damages are concerned, it would be appropriate to note at this stage that the claim petition was filed only by the appellant no. 1 who was the father of the deceased. The mother of the deceased was not a claimant in the claim petition but has filed the present appeal along with the father of the deceased and is appellant no. 2 in the present appeal. A perusal of the award of the Tribunal indicates that in the claim petition, it was stated by the appellant no. 1 that appellant no. 2 was the mother of the deceased. During the pendency of the appeal, the appellant no. 1, i.e., the father of the deceased died and the appeal has proceeded at the instance of appellant no. 2 who, being the widow of appellant no. 1, is also the heir and legal representative of appellant no. 1. Under Section 166 (4) of the Act, a Claim Tribunal is required to treat a report of any accident forwarded to it under Section 158 (6) of the Act as an application for compensation under the Act. Section 158 (6) of the Act provides that as soon as any information regarding any accident involving death or bodily injury to any person is recorded or reported under the said section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within 30 days from the date of recording of information or on completion of such report to the Claims Tribunal and a copy thereof to the concerned insurer and where a copy is made available to the owner, he shall also within 30 days of the receipt of such report, forward the same to the Claims Tribunal and the Insurer. Section 166 (1) (c) & (d) of the Act provide that where death has resulted from an accident, an application for compensation can be filed by all or any of the legal representatives of the deceased or by any agent duly authorized by all or any of the legal representatives of the deceased. Proviso to Section 166 (1) of the Act provides that where all the legal representatives of the deceased have not joined in any application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. Evidently under the Act a legal representative of the deceased would be entitled to compensation under the Act even if he had not filed a claim petition and the Tribunal would consider the report under Section 158 (6) of the Act as an application for compensation under the Act. It is also evident that if a claim petition is filed by one of the legal representatives of the deceased, the claim petition shall be treated to have been filed on behalf of and for the benefit of all the legal representatives of the deceased. In Nagappa vs Gurudayal Singh & Ors. 2003 (2) SCC 274, the Supreme Court in paragraph no. 7 of its judgment held that 'the Claims Tribunal in an appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed' and in paragraph no. 10 of the judgment held that the only limitation or restriction on the power of a Tribunal to award compensation is that the compensation awarded should be a just compensation and there was no other limitation or restriction on the power of the Tribunal. In that view of the matter the fact that the appellant no. 2, i.e., the mother of the deceased was not joined as respondent in the claim petition or as claimants has no effect while considering the amount of compensation to be awarded under the head of non-pecuniary damages and non-pecuniary damages have to be determined considering that the claim petition was filed by the father of the child for himself and for the benefit of the mother of the deceased. In accordance with the judgments of the Supreme Court in National Insurance Company Ltd. vs Pranay Sethi & Ors. (2017) 16 SCC 680 and Magma General Insurance Company Ltd. vs. Nanu Ram 2018 SCC OnLine SC 1546, the appellants are entitled to a compensation of Rs.15,000/- for loss of estate and Rs.15,000/- as funeral expenses. Apart from the aforesaid, the appellants are also entitled to a compensation of Rs.40,000/- each for loss of Filial Consortium as awarded in Magma General Insurance (supra), i.e. a total of Rs.80,000/- for loss of Filial Consortium. Rule 220-A of U.P. Motor Vehicle Rules, 1998, identifies 'compensation for loss of love and affection' and 'compensation for loss of consortium' as separate categories and, therefore, the appellants are entitled to separate compensations for 'loss of love and affection' and 'loss of consortium'. In Magma General Insurance (supra), the Supreme Court granted Rs.50,000/- to each of the claimants as compensation in the head 'loss of love and affection'. In view of the aforesaid, the appellants are entitled to Rs.50,000/- each, i.e., a total of Rs.1,00,000/- for loss of love and affection due to the death of their son. Thus, it is held that the claimants are entitled to a compensation of Rs.6,60,000/- (pecuniary damages + loss of estate + funeral expenses + loss of Filial Consortium + loss of love and affection, i.e., Rs.4,50,000/- + Rs.15,000/- + Rs.15,000/- + Rs.80,000/- + Rs.1,00,000/-). In view of the judgment of this Court in Mannat Johal (supra), the claimants - appellants are entitled to an interest of 7.5% simple interest from the date of filing of the claim petition till the payment of compensation amount to the claimants. The award dated 28.2.2006 of the Tribunal is accordingly modified to the aforesaid extent.
Arguments
It was argued by the counsel for the appellants that the Tribunal has wrongly calculated the compensation on a notional income of Rs.15,000/-. It was argued that in Kishan Gopal & Anr. vs. Lala & Ors. 2014 (1) SCC 244, the Supreme Court determined compensation on a notional income of Rs.30,000/- per annum in the case of death of a child. It was also argued that in the present case also, the compensation was to be determined on the notional income of Rs.30,000/- per annum and no deductions could have been made from the notional income of a child victim. It was further argued that the funeral expenses awarded by the Tribunal is on the lower side and no compensation has been awarded by the Tribunal for loss of estate, loss of consortium and loss of love and affection. It was also argued that in view of the judgment of the Supreme Court in National Insurance Company Ltd. vs. Mannat Johal & Ors. 2019 (15) SCC 260, the claimants are entitled to an interest at the rate of 7.5% per annum. It was argued that for the aforesaid reasons, the appellants are entitled to an increase in the compensation amount. Contesting the appeal, the counsel for the Insurance Company has argued that in Kurvan Ansari @ Kurvan Ali & Anr. vs. Shyam Kishore Murmu & Anr. 2022 (1) SCC 317 followed by a Division Bench of this Court in First Appeal From Order No. 2124 of 2021 (Roop Lal & Anr. vs. Suresh Kumar & 2 Ors.), the Supreme Court had determined compensation for the parents of a deceased child on a notional income of Rs.25,000/- per annum and, therefore, in the present case also, the compensation is also to be determined on the notional income of Rs.25,000/- per annum. I have considered the rival submissions of the counsel for the parties. At this stage, it is appropriate to note that no cross appeal or cross objections have been filed either by the Insurance Company or the owner of the offending vehicle challenging the findings of the Tribunal on Issue Nos. 1, 2 and 3 and, therefore, the findings of the Tribunal on the said issues, i.e., issues regarding the factum of accident and negligence of the driver of the vehicle as well as issues regarding the liability of the Insurance Company to pay compensation have become final
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 New India Assurance Company Ltd., i.e., opposite party no. 2 in the Tribunal within three months. The amount so deposited by the New India Assurance Company Ltd. under the present order of this Court shall 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. 2 / legal representatives of the deceased who shall be entitled to withdraw the maturity amount when the fixed deposits mature. The maturity amount shall be credited by the bank/post office in any savings account held by the appellant no. 1 / legal representatives of the deceased 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 / legal representatives of the deceased. 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. Order Date :- 17.2.2022 Satyam Digitally signed by SATYAM AGRAHARI Date: 2022.02.25 17:22:04 IST Reason: Location: High Court of Judicature at Allahabad