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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No.339 of 2011
Cholamandalam M.S. General Insurance Company Limited
……….Appellant
Versus
Smt. Hanifa & others
…Respondents Present:- Mr. Bharat Tiwari, Advocate holding brief of Mr. Sarvesh Aggarwal,
Advocate for the appellant.
Mr. Sachin Kumar Sharma, Advocate holding brief of Mr. S.K. Shandilya,
Advocate for respondent nos.1 and 2.
Mr. R.S. Azad, Advocate for respondent no. 3.
Mr. Lalit Miglani, Advocate for respondent no. 6.
Hon’ble Sudhanshu Dhulia, J. (Oral)
This appeal has been filed by the appellant against the judgment and award dated 25.03.2011 passed by the Motor Accident Claims Tribunal, Roorkee, District Haridwar in MACP No.175 of 2010, whereby a compensation of Rs.8,10,096/- (Rupees Eight Lakh Ten Thousand Ninety Six Only) has been awarded to the claimants.
Brief facts of the case are that on 07.09.2010, the son of the claimants Muneer who was a passenger in a Vikram/Tempo bearing registration no. UK-08TA-0461 was travelling from “Saliyar” to “Roorkee”. At about 1:30-2:00 PM in the afternoon, near Ibrahimpur turn G.T. Road, a truck bearing registration no. UK-08CA-1594 which was coming from Roorkee towards Saliyar and which was being driven rashly and negligently by its driver and was on the wrong side of the road, had a head on collision with the Tempo, as a result of which, the Tempo was severely damaged and Muneer who was a passenger in the said Tempo sustained grievous
2 injuries and died on the spot. The driver of the Tempo and some of the co-passengers also died in the said accident and the rest of the passengers sustained grievous injuries.
On account of the death of Muneer, a claim petition was filed by the claimants claiming a compensation of Rs. 30,10,000/- (Rupees Thirty Lakh Ten Thousand only). It was stated in the claim petition that at the time of the incident the deceased Muneer was 23 years of age. He was earning a sum of Rs. 1,71,089/- (Rupees One Lakh Seventy One Thousand Eighty Ninety only) per annum and he was the sole breadwinner of their family.
Written statements were filed by Chola Mandalam Insurance Company, the owner of the truck, the owner of the tempo and Reliance General Insurance Company Limited as well.
On the basis of the rival pleadings of the parties, the learned Motor Accident Claims Tribunal framed the following issues:-
“1. Whether on 07.09.2010 at about 01:30 to 02:00 P.M. at village Ibrahimpur Mod, G.T. Road, under P.S. Kotwali Gangnahah, Roorkee, District Haridwar, when the son of the claimants Muneer was going from village Saliyar to Roorkee as passenger in Tempo/Vikram No. U.K. 08 TA- 0461, and when it reached at Ibrahimpur Mod G.T. Road, then the accident occurred due to rash and negligent driving by the driver of truck no. UK- 08 CA-1594 which was coming from Roorkee, which hit the tempo which was on the correct side, as a result of which, Muneer died on spot due to injuries sustained by him in the accident?
Whether the claimants are entitled for any compensation? If yes, then to what extent and from whom?
Whether the accident occurred due to contributory negligence of the driver of truck no. UK 08CA-1594 and Tempo/Vikram No. UK-08 TA- 0461, as stated by respondent no. 3 in para no. 20 of its written statement? If yes, then its effect?
Whether at the time of accident, the driver of Truck No. UK-08CA-1594 was not having a valid driving licence and the documents relating to the vehicle were not valid, as has been stated by respondent no. 3 in its written statement?
Whether at the time of accident, the driver of Tempo/Vikram No. UK-08TA-0461 was not having a valid driving licence, as has been stated by respondent no. 5 in its written statement?”
While deciding issue no. 1, the learned Tribunal has relied on the evidence of eye-witness account particularly PW 2 Waseem, who has said that the tempo/vikram on the date of accident was being driven on the correct side, and was running at a slow speed, which had 8-9 passengers. On the other hand, the truck was on the wrong side. On the basis of the evidence led by the eye-witness, the conclusive finding of the learned Tribunal is that the accident was caused by the negligent and rash driving of the truck no. UK-08CA-1594, as a result of which, Muneer sustained grievous injuries and died on the spot.
While deciding issue no. 3, the learned Tribunal recorded a categorical finding that the accident has occurred
4 as the truck was being driven on the wrong side and it dashed the tempo which was on its right side. Therefore, the learned tribunal has negated the argument of the insurance company that there was a contributory negligence on the part of the driver of the tempo.
So far as issue no. 4 is concerned, the learned Tribunal on the basis of the documents placed before it came to the conclusion that at the time of the accident, the driver of truck no. UK-08CA-1594 was having a valid driving licence and all the papers relating to the truck were valid.
With regard to issue no. 5, the learned Tribunal on the basis of the documents placed before it came to the conclusion that at the time of accident, the driver of the tempo was having a valid driving licence and all the papers relating to the tempo were valid at the time of the accident.
10.
While deciding the amount of compensation, the learned Tribunal came to the conclusion that it has come in the evidence that the deceased was 23 years of age and was running a shop with the name and style of M/s Sri Balaji Trading Company, and apart from this he also used to work in “Navin Anaj Mandi”. The Tribunal after adding the amount shown in income tax returns of the deceased for the year 2009-10 and 2010-11 which is Rs. 1,56,230/- (Rupees One Lakh Fifty Six Thousand Two Hundred Thirty only) and Rs. 1,71,083/- (Rupees One Lakh Seventy One Thousand Eighty Three only), respectively deducted 1/3 of the amount and calculated the average annual income of the deceased as Rs. 1,09,104/- (Rupees One Lakh Nine Thousand One Hundred Four only). Out of this amount, the learned Tribunal deducted one-third amount towards personal expenses and consequently calculated the annual dependency income as Rs.
5 72,736/- (Rupees Seventy Two Thousand Seven Hundred Thirty Six only). On this amount, a multiplier of 11 has been applied and the compensation of Rs. 8,00,096/- (Rupees Eight Lakh Ninety Six only) has been calculated. Apart from this, the learned Tribunal has also awarded a compensation of Rs. 5,000/- (Rupees Five Thousand only) towards funeral expenses and Rs. 5,000/- (Rupees Five Thousand only) towards loss of estate. Thus, the learned Tribunal has awarded a total compensation of Rs. 8,10,096/- (Rupees Eight Lakh Ten Thousand Ninety Six only).
11.
Aggrieved, the insurance company has filed the present appeal challenging the award passed by the learned Tribunal, firstly on ground that the income tax returns of the deceased were not proved by the department and secondly, the deceased was a bachelor at the time of the incident and therefore instead of one-third, one-half of the amount was liable to be deducted towards personal expenses.
12.
Reliance has been placed by the learned counsel for the appellant on the decision of the Hon’ble Apex Court in the case of Sarla Verma (Smt) and others v. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, where in such circumstances where the deceased was a bachelor, a deduction towards personal expenses should be one-half and not one-third which is done only in the cases of married persons. The reasons are being given in paragraph nos. 31 and 32 of the aforesaid judgment, which read as under:-
“31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also
6 the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one- third and contribution to the family will be taken as two-third.”
13.
A perusal of the aforesaid judgment shows that as regarding the deduction in the case of a bachelor may not be universally applicable in each and every case as the Hon’ble Apex Court has very cautiously stated that this has to be done “normally” in these cases. All the same, there may be situations where this may strictly not apply.
14.
Moreover, perusal of the award passed by the Tribunal shows that the learned Tribunal has not rightly fixed the annual income of the deceased. The learned tribunal has considered the two years income tax returns of the deceased i.e. for the year 2009-10 and 2010-11 as Rs. 1,56,230/- (Rupees One Lakh Fifty Six Thousand Two Hundred Thirty only) and Rs. 1,71,083/- (Rupees One Lakh Seventy One Thousand Eighty Three only), respectively, which comes to Rs. 3,27,313/- (Rupees Three Lakh Twenty Seven Thousand Three
7 Hundred Thirteen only). Thereafter in order to reach to the average annual income of the deceased, the learned Tribunal has divided the same by 03, which in view of this Court is wrong, inasmuch as for getting the average income for two years, it should have been divided by 02 only and not by 03. Therefore, the annual income of the deceased on the basis of the income tax returns for the year 2009-10 and 2010-11 comes to as under:-
Income for the A.Y. 2009-10 = Rs. 1,56,230/-
Income for the A.Y. 2010-11 = Rs. 1,71,083/-
Total - Rs. 3,27,313/-
Average Income (3,27,313 ÷ 2) = Rs. 1,63,656.50/-
15.
Thus, the learned Tribunal has wrongly calculated the annual income of the deceased. Moreover, no compensation towards future prospects has been awarded to the claimants.
16.
However, this Court is also conscious of the fact that there is no appeal of the claimants for enhancement of the award. Even though the claimants have not challenged the award of the tribunal, but in case there is a prayer for decrease of the amount of the award on wrong calculation, it is always open for the claimants to pray for enhancement under other heads where the Tribunal has fallen into an error. In this regard, reliance has been placed by the learned counsel for the claimants Sri Sachin Kumar Sharma, on paragraph no. 6 in the case of Ranjana Prakash and others v. Divisional Manager and another, passed in Civil Appeal No.6110 of 2011, decided on 29.07.2011, which reads as under:-
“6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of
8 future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the Appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections.”
17.
In view of the above, even if it is assumed for the sake of argument that the Tribunal ought to have deducted 1/2 of the income towards personal expenses and not 1/3, yet no interference is liable to be made on the basis of wrong calculation of the Tribunal elsewhere. Consequently Appeal from Order has no merit and the same is hereby dismissed.
18.
Let the entire amount be deposited by the Insurance Company with the concerned Tribunal within three weeks from the date of production of a certified copy of this order, after adjusting the amount already deposited. The statutory amount of Rs.25,000/- (Rupees Twenty Five Thousand only) be also remitted to the concerned Tribunal forthwith. After the amount of compensation is deposited by the Insurance Company, let the same be disbursed to the
9 claimants by the Tribunal in terms of the order dated 25.03.2011 passed by the Tribunal.
19.
Let a copy of this judgment and the lower court record be sent to the concerned Tribunal for onward compliance.
(Sudhanshu Dhulia, J.)
02.08.2019 Ankit/