The Allahabad High Court has set aside the order of a Tribunal Court in awarding of motor accident claim and has increased the claim amount, while also permitting the insurance company to recover the losses from the owner and driver of the vehicle.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Vivek Varma passed this order, while hearing a petition filed by Vimla Devi And 4 Ors.
Both these appeals arise out of the same award/decree. The First Appeal is preferred by the original claimants for enhancement of compensation, whereas connected Appeal has been filed by the Insurance Company with which the vehicle was insured, challenging the findings as far as fixing their liability, compensation granted and on grounds of contributory negligence of the deceased.
The facts of the case are that on the intervening night of May 29 and 30, 2011, Haridas Gautam, Vijay Gautam and Pankaj Kumar Sharma were returning to their home from Lucknow in a Maruti Wagon R car bearing registration, which according to the petitioner, was driven by Shiv Shankar @ Pappu.
On May 30, 2011 at 4:00 am, when they reached ahead of petrol pump of village Rithiya on Lucknow Main Road, driver Shiv Shankar @ Pappu was driving the car rashly and negligently when he saw a vehicle coming from opposite side and with presumption that his car can collide with the coming vehicle he moved his car to very left of his side due to which the car collided with the railing of the road side culvert as a result of which Haridas Gautam and Vijay Gautam sustained several injuries on the other hand Pankaj Kumar Sharma and driver Shiv Shankar @ Pappu sustained minor injuries. Haridas Gautam and Vijay Gautam were taken to the District Hospital for treatment where Haridas Gautam succumbed to his injuries and Vijay Gautam was treated for his injuries.
It is an admitted fact that the claimants are legal representatives of the deceased. The deceased was 53 years of age at the time of the accident. He was working as a Chief Pharmacist in District Women Hospital, Basti. He was survived by his wife, two minor sons and two major daughters.
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The Tribunal considered his income to be Rs 26,900/-p.a, deducted 1/4th towards personal expenses of the deceased, granted multiplier of 9 and granted Rs1,00,000/- towards compensation for loss of consortium, granted Rs 10,000/- towards for loss of estate, granted Rs 10,000/- towards funeral expenses and ultimately assessed the total compensation to be Rs 22,98,900/-.
Aditya Singh Parihar, counsel for the claimants appellants has submitted that the tribunal has deducted 20% by way of income tax and other emoluments which is not in consonance with the judgment of Vimal Kanwar and Others Versus Kishore Dan and others ( 2013) 7 SCC 476.
Counsel has submitted that tribunal has granted a multiplier of 9 in-place of 11 which is required to be granted as per the judgement of Sarla Verma Vs D.T.C, AIR 2009 SC 3104.
It is submitted that no amount under loss of future prospect is granted relying on the decision of Sarla Verma (supra) as the deceased was above 50 years of age.
The Court will be obliged to decide all the issues raised in both the appeals as per the judgment of the Apex Court in the case of U.P.S.R.T.C Vs Km Mamta and Others, AIR 2016 SC 948.
The issues which are raised by the Insurance Company are enumerated as follows:-
(a) The award and decree is bad as it was Vijay Gautam who was driving the vehicle and not Shiv Shankar @ Pappu;
(b) That there is a delay of about 26 months in lodging the F.I.R. and about two and half years delay in filing the claim petition;
(c) That there is no finding to the fact that accident in question occurred due to rash and negligent driving of the driver of Maruti Car and who is liable to pay the claimants;
(d) That the compensation awarded towards consortium and other heads is on the higher side;
(e) The claimants have also challenged the quantum of compensation.
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The Court noted that,
Issue (a) and (c) As far as the facts go it is an admitted position that the driver was one Shiv Shankar @ Pappu to whom the owner had entrusted the vehicle but from the evidence on record it is proved that the charge sheet was laid against Vijay Gautam who was also injured in the accident. The oral testimony of the driver Shiv Shanker also corroborates this fact, in that view of the matter the finding of fact that the vehicle was being driven by Shiv Shankar @ Pappu could not be permitted to stand. In fact, the said finding is contrary to the statement and testimony of the driver of the vehicle that he was not driving the vehicle at the time when the accident took place could not be disbelieved just because he was a licensed driver. The fact Shiv Shankar @ Pappu was in the vehicle only would not make him liable as driving the vehicle in absence of any other evidence being led. In that view of the matter, we hold that the vehicle was being driven by Vijay Gautam. The factum of knowledge that vehicle was driven by Vijay Gautam and not by Shiv Shankar @ Pappu and to take benefit of this fact, we would have to peruse Section 147 and Section 149 of the Motor Vehicle Act, 1988.
The Court held that,
It could not be culled out from record that on what basis, the Tribunal has deducted certain pecuniary benefits from the income of deceased. The income of the deceased in the year of accident and looking to his job has to be considered to be Rs 32,000 per month, as the deceased was in the age bracket of 51-55 years, 20 percent as future loss of income requires to be added in view of UP MV rules and decision in Urmila Shukla (Supra) as the deceased was survived by his wife, two minor sons and two major daughters, who were unmarried, could have been the expenses borne on himself.
The claimants would be entitled to a multiplier of 11 and not 9 as per the judgment of National Insurance Company Ltd. Vs. Pranya Sethi 2017 (13) SCALE Rs 1,20,000/- granted for non pecuniary damages is not disturbed.
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Hence, the total compensation payable to the appellants is computed herein below: i. Income Rs 32,000 pm. ii. Percentage towards future prospects : 20% namely Rs. 64,00/- p.m iii. Total income : Rs. 32,000 + Rs. 64,00 = Rs. 38,400/- p.m iv. Income after deduction of 1/4th : Rs. 28,800/- p.m v. Annual Income : Rs. 28,800 x 12 = 3,45,600/- p.a vi. Multiplier applicable : 11 vii. Loss of dependency: Rs.3,60,000 x 11 = Rs.38,01,600/- viii. Amount under non-pecuniary head : 1,20,000/- ix. Total compensation : Rs. 39,21,600/-
In view of the above, the Court allowed both appeals. Compensation is re-calculated. Award and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondents shall jointly and severally be liable to pay the amount to the claimants, the Court said.
The Court further held that the Insurance Company can recover the amount from the owner and driver if it is proved that the owner was aware and had given the vehicle to Haridas Gautam to drive and that Haridas Gautam had no license to drive the vehicle the recovery rights are given, are these facts being proved by Insurance Company.
“The respondent-Insurance Company shall deposit the additional amount after recalculating within a period of 12 weeks from today with interest at the rate of 7.5% per annum from the date of filing of the claim petition till the amount is deposited. The amount already deposited will be deducted from the amount to be deposited.
The registry of the Tribunal is directed to allow the claimants 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 No1 of 2020 in First Appeal From Order No 23 of 2001 (Smt. Sudesna and others Vs Hari Singh and another) and in First Appeal From Order No 2871 of 2016 (Tej Kumari Sharma v Cholamandalam M.S General Insurance Co. Ltd) decided on 19.3.2021 while disbursing the amount.
On depositing the amount in the Registry of Tribunal, the Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Apex Court in the case of A.V Padma V/s Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment be passed by tribunal seeing the disbursement status of applicants /claimants. Record be sent back to tribunal forthwith”, the order read.