Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 1312

IN THE HIGH COURT OF ALLAHABAD
VIVEK VARMA, J.
United India Insurance Co. Ltd. – Appellant
Versus
Smt. Sanwala Devi and Others – Respondents
First Appeal from Order No. 3149 of 2017
Decided On : 15-12-2021

Advocates:
Advocate Appeared:
For the Appellant : Nagendra Kumar Srivastava.
For the Respondents: Ramesh Chandra Pathak, Neeraj Chandra Srivastava.

Point of law: When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.

Headnote:
Motor Vehicles Act, 1988 - Section 166, 168 - Income Tax Act, 1961 - U.P. Motor Vehicles Rules 1998 - Rule 220A - Claim Petition - Appeal against judgment and award passed by Motor Accident Claims Tribunal - Asserted that deceased died due to negligent and rash driving of respondent - Appellant is insurer of offending vehicle - Tribunal or High Court on perusal of the last pay certificate, have not noticed that income tax on estimated income of employee was not deducted from salary of employee during said month or financial year - Appellants have stated that assessment year applicable is 1997-1998 and not 1996-1997 - They have also taken specific plea that for Assessment Year 1997-1998 the rate of tax on income more than Rs. 40,000 and up to Rs. 60,000 was 15% and not 20% .
Finding of the court:
It becomes pertinent to note here that neither appellant-insurance company nor any of respondents in claim petition brought to notice of Tribunal that income tax payable by deceased was not deducted at source by employer - No such statement was also made by PW-3, who placed on record last pay certificate of deceased - Tribunal on perusal of the last pay certificate did not find that income tax on estimated income of employee was not deducted from salary of employee - In absence of evidence to contrary, presumption will be that employer at time of payment of salary deducted income tax on estimated income of deceased employee - In view of provisions of the Income Tax Act, 1961, court holds that High Court was wrong in deducting 20% from salary of deceased towards income tax, for calculating compensation - As per law, presumption will be that employer State Government at time of payment of salary deducted income tax on estimated income of deceased employee from salary and in absence of any evidence, court holds that salary as shown in last pay certificate as Rs. 8920 should be accepted which if rounded off comes to Rs. 9000 for calculating compensation payable to dependants - Court is of the opinion that since deceased was 51 years of age at time of death, as such addition of 20% for future prospect has rightly been awarded by the Tribunal placing reliance upon U.P. Motor Vehicle Rules, 1998.
Result: Appeal dismissed

JUDGMENT :

VIVEK VARMA, J.

1. Heard Sri. Nagendra Kumar Srivastava, learned counsel for the appellant, Sri. Ramesh Chandra Pathak, learned counsel for the respondent nos. 1 to 5 and Sri. Neeraj Chandra Srivastava, learned counsel for respondent nos. 6 to 10.

2. The present first appeal from order arises out of the judgment and award dated 18.05.2017 passed by the Motor Accident Claims Tribunal/District Judge, Basti (hereinafter referred to as the ‘Tribunal’) in M.A.C.P. No. 18 of 2015 (Smt. Sanwala Devi and Others vs. Ram Sumarin and Others) awarding Rs. 30,46,622/- as compensation from the appellant with simple interest at the rate of 6 percent from the date of filing of petition till the date of its actual payment.

3. The respondent nos. 1 to 5, the claimants, filed a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal, seeking compensation amounting to Rs. 64,99,476/- along with 15 percent interest per annum from the date of filing of petition till its payment.

4. The claimants are the heirs and legal representatives of late Ramraj S/o Jagmohan, who died as a result of an accident on 14.12.2014. The deceased Ramraj along with his son Dilip Kumar (Respondent no. 3) was going to the house of his relative on a Scooty bearing registration no. UP-51X-4621. He was pillion rider of the Scooty, which was driven by his son. When they reached near Sukrauli village, a tractor bearing registration no. UP-51Q-5794 took a sudden turn and collided with the Scooty. Ramraj was seriously injured in the mishap. He was brought to the district hospital where he was declared dead by the doctor. He is survived by his wife Smt. Sanwala Devi, respondent no. 1 aged about 50 years and four sons namely, Rajesh Kumar aged about 30 years, Dilip Kumar aged about 20 years, Ajay Kumar aged about 18 years and Sangram Kumar aged about 15 years.

5. It was asserted in the claim petition that the deceased died due to negligent and rash driving of respondent no. 10-Ashwani Kumar (tractor driver). It was brought to the notice of the Tribunal that the respondent no. 10-Ashwani Kumar was under the employment of respondent nos. 6 to 9. The appellant i.e. United India Insurance Co. Ltd. is the insurer of the offending vehicle. The Tribunal allowed the claim petition by the impugned judgment and award.

6. In the instant appeal the learned counsel for the appellant has raised two issues:

(i) The Tribunal has considered the income of the deceased as Rs. 3,11,280/- per annum and the slab of income tax was nil up to Rs. 2,50,000/- hence the taxable amount be deducted towards income tax.

(ii) The Tribunal has provided 20% of the income for future prospect, which is not sustainable as the age of the deceased was 51 years at the time of incident and the Hon’ble Supreme Court in Sarla Verma vs. DTC, (2009) 6 SCC 121 held that there is no provision for future prospect after the age of 50 years.

7. On the other hand, learned counsel for the respondents-claimants has submitted that the award passed by the learned Tribunal is legally sustainable and calls for no interference.

8. Rival submissions fall for consideration. The accident is not in dispute. The appellant has not challenged the liability imposed on it. Hence, only the aforesaid issues are to be dealt with.

Issue No. 1:

9. The deceased was a peon in the office of Rajkiya Ayurvedik Evam Unani Officer, Basti and the only source of income was his salary. The Tribunal on the basis of the last pay certificate of the month of November 2014 issued on 18.03.2017 as well as on the basis of the statement of PW-3 Mahmood Jafar dated 06.04.2017, a Junior Clerk in Rajkiya Ayurvedik Evam Unani Karyalaya, assessed the income of the deceased as Rs. 3,11,280/- per annum.

10. It becomes pertinent to note here that neither the appellant-insurance company nor any of the respondents in the claim petition brought to the notice of the Tribunal that the income tax payable by the deceased Ramraj was not deducted at source by t