The term use of motor vehicle has been explained by the Apex Court in the case of Shivaji Dayanu Patil v. Vatschala Uttam More, MANU/SC/0402/1991 : 1991 3 SCC 530, the term use of motor vehicle means where the term use of motor vehicle has been explained even leakage of petrol and, thereafter, where the explosion in the place and fire occurred resulting in death of certain villagers. This involved the petrol tanker and one another truck was held to be accident arising out of use of motor vehicle and, therefore, there is a casual relationship between earlier event of accident which was due to collision and later incident of explosion and fired such connection need not be direct or immediate once. If it is demonstrated that the death occurred due to use of motor vehicle, then prima facie claim petition would be maintainable. It goes without saying that it is because of use of motor vehicle that accident occurred. Later on while deciding the matter finally, also the Apex Court in Judgment titled New India Assurance Company Limited Versus Yadu Sambhaji More reported in, MANU/SC/0019/2011 : (2011) AIR SC 666 has taken similar view which goes to show that the tribunal had jurisdiction to entertain such petitions, that to in use or arising out of use of the motor vehicle has been consistently followed in the later judgment. The Apex Court has criticised the finding by the tribunal of rejecting the claim petitions. {Para 20}
The learned tribunal with utmost respect has not taken holistic view in the matter while holding that the truck was used as a weapon, the accident is by the use of vehicle and it has to be turned to be an accident. The term 'negligence' would assume significance the term negligence in common parlance would go to show that the driver drove the vehicle negligently as narrated herein-below.
27. Just because the charge sheet is laid under Section 302 will not take the case from the purview of using the vehicle negligently. The evidence of all the witnesses go to show that the driver of the vehicle drove the vehicle rashly and negligently and came from behind and dashed with the jeep deliberately may be he had not caused murder that is not the subject matter of our concerned but the death occurred due to the ante mortem injuries caused due to use of truck in which the truck which dashed with the police vehicle in which the deceased was seated.
First Appeal From Order No. 966 of 2016
Decided On: 08.07.2022
Renu Devi and Ors. Vs. Gufran Ahmad and Ors.
Hon'ble Judges/Coram:
Dr. Kaushal Jayendra Thaker and Ajai Tyagi, JJ.
Author: Ajai Tyagi, J.
Citation: MANU/UP/2195/2022.
1. Heard learned counsel for the appellants and learned counsel for the respondents. Perused the record.
2. This appeal has been preferred by appellants/claimants against the judgment and order dated 03.02.2016 passed by Motor Accident Claims Tribunal Chandauli/Additional District Judge, Court No. 1, Chandauli (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 107 of 2013, Smt. Renu Devi and others v. Gufran Ahmad and others by which the claim petition of appellants was rejected by learned tribunal.
3. The incident having taken place is not in dispute. The dispute is whether said incident is covered under Sections, 165, 166 and 168 of the Motor Vehicles Act, 1988 (in short M.V. Act) or is a murder, the legal representatives of deceased whether are entitled to any compensation under M.V. Act is the crux of the litigation.
4. The brief facts as culled out from the record are that on 31.5.2013 at about 01.45 a.m. (night), deceased Ashok Kumar Yadav, who was constable in U.P Police Department, was on duty with S.H.O. and other police personnel and were in Government Jeep No. UP 66 G 0072, near Madho Singh Toll Plaza within the jurisdiction of Police Station Orai, District Sant Ravidas Nagar, a truck bearing No. UP 70 CT 7486 came on the spot and the Police enquired from the truck driver regarding the goods loaded in the truck. On making this enquiry, the truck driver started the truck and ran away from there. The Police jeep chased the aforesaid truck and after overtaking the truck, the jeep crossed the toll plaza and stopped the truck and when police personnel signalled, the truck driver to stop the truck, the truck driver deliberately broke the barrier of toll plaza by driving rashly and negligently and damaged the barrier and hit the jeep from behind. Consequently, the jeep was fleeing in air and it overturned. In this accident, Constable Ashok Singh Yadav sustained serious injuries due to which he died during treatment.
5. The Motor accident claims tribunal held that it was a case of murder and not a case of rash and negligent driving by the truck driver. The tribunal also held that the murder of deceased was caused using the truck as a weapon and if any vehicle is used as a weapon then no compensation can be granted to the claimants under M.V. Act and the claim petition preferred by appellants who were legal representatives of deceased was rejected.
6. Learned counsel for the appellants submitted that death of the deceased had taken place while he was in police jeep, hence it was death while using motor vehicle. It is also submitted that at the time of accident, the truck driver was driving the truck rashly and negligently. The truck hit the jeep at a very high speed from behind causing accident.
7. It is further submitted by learned counsel for appellants that learned Tribunal erred in holding that the death of the deceased was murder simplicitor and not accidental death. Learned counsel submitted that under the M.V. Act if an accident arises due to use of motor vehicle then claimants are entitled to compensation. Learned counsel for appellants has relied on the judgments titled Rita Devi v. New India Assurance Co. Ltd., MANU/SC/0312/2000 : 2000 ACJ 801 (SC), and Ambalika Singh and others v. United India Insurance Co. Ltd. and others, MANU/UP/3009/2017 : 2018 (1) TAC 207.
8. Learned counsel for Insurance company vehemently submitted that the death of deceased was consequence of planned murder by the truck driver. It was not an accident, but the truck driver intentionally hit the jeep, there was mens rea on the part of the truck driver. Learned counsel also submitted that the first information report of the occurrence was lodged under Sections 307 and 302 of Indian Penal Code (I.P.C) along with other Sections and as per contents of F.I.R., the truck driver intentionally hit the police jeep. It is also submitted that the charge sheet is also filed under Section 302 of I.P.C. It is further submitted that it is proved that the act of truck driver can be termed as murder and not accident, and hence, the claimants are not entitled to compensation under M.V. Act and learned tribunal has rightly rejected the claim petition. It is argued that there is no illegality or infirmity in the impugned judgment/award which calls for any interference by this Court under Section 173 of M.V. Act.
UNDISPUTED FACTS:
9. The death of deceased police Constable Ashok Singh Yadav had taken place when he was on duty and he was in the police Jeep when it hit the truck. As per the records, the truck involved in the accident was illegally transporting cattle, when the police enquired from the truck driver, he started the truck and ran away. The police jeep while chasing the truck overtook the said vehicle and crossed the toll plaza and stopped the jeep, after stopping the jeep, the police personnel signalled the truck driver and tried to stop it but the truck driver deliberately broke the barrier and hit the jeep from behind causing the incident to occur.
FINDINGS:
10. In Rita Devi (supra), the Apex Court held that murder can be of two types " murder simplicitor" and "accidental murder". In the case filed Rita Devi (supra) the question before the Apex Court was whether a murder can be an accident in any given case. The Apex Court held that in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing, but there are also instances where murder can be by accident in a given set of facts, which depends on the proximity of the cause of such murder.
11. It was held that if the dominant intention of the act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
12. The claim petition in aforesaid case namely Rita Devi (supra) was filed under Section 163A of M.V. Act, 1988 in which the claimants were not required to prove the act of negligence on the part of driver and the element of negligence rather they were required to prove that the death of the deceased had taken place out of use of the motor vehicle, but in the case on hand, the claim petition was filed under Section 166 of Motor Vehicles Act, 1988. Hence, the appellants/claimants are required to prove the negligence also on the part of the truck driver.
13. The Apex Court in Rita Devi (supra) has held that if any act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
14. The law on this issue about murder in case of use of motor vehicle and compensatory jurisprudence is clarified by the Supreme Court in Rita Devi (supra). The Supreme Court drew distinction between the term "murder" which is not an accident and a "murder" which is an accident. The Supreme Court laid down the test that if the dominant intention of the felonious act is to kill any particular person, then such killing is not accidental murder but a murder simpliciter. However, if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act, then such murder is an accidental murder. Para 10 of the judgment is relevant and is reproduced hereunder:
"10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."
(Emphasis supplied)
15. In Rita Devi (supra), the deceased was employed to drive an auto rickshaw for ferrying passengers on hire. On the fateful day, the auto rickshaw was parked in the rickshaw stand at Dimapur when some unknown passengers engaged the deceased for a journey. As to what happened on that day is not known. It was only on the next day that the police was able to recover the body of the deceased but the auto rickshaw in question was never traced out. The owner of the auto rickshaw claimed compensation from the insurance company for the loss of auto rickshaw. The heirs of the deceased claimed compensation for the death of the driver on the ground that the death occurred on account of accident arising out of use of the motor vehicle. The Apex Court held that the murder to be an accidental murder most satisfy certain tests, the Court in Para 14 is held:-
"14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty bound to have accepted the demand of fare-paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing theft of the autorickshaw."
(Emphasis supplied)
16. In Rita Devi (supra), the Supreme Court relied on Challis v. London and South Western Railway Company, (1905) 2 KB 154 and Nisbet v. Rayne & Burn, (1910) 1 KB 689 would throw light so as to draw the distinction between the felonious act which accidentally results in death and a murder simpliciter. Paras 11 to 13 of the judgment are reproduced hereinbelow:
"11. In Challis v. London and South Western Rly. Co. [(1905) 2 KB 154 : 74 LJKB 569 : 93 LT 330 (CA)] the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held:
"The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously."
12. In the case of Nisbet v. Rayne & Burn [(1910) 2 KB 689 : 80 LJKB 84 : 103 LT 178 (CA)] where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers' workmen, was robbed and murdered. The Court of Appeal held:
"That the murder was an 'accident' from the standpoint of the person who suffered from it and that it arose 'out of' an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmen's Compensation Act, 1906. In this case the Court followed its earlier judgment in the case of Challis [(1905) 2 KB 154 : 74 LJKB 569 : 93 LT 330 (CA)]. In the case of Nisbet [(1910) 2 KB 689 : 80 LJKB 84 : 103 LT 178 (CA)] the Court also observed that 'it is contended by the employer that this was not an "accident" within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word "accident" negatives the idea of intention'. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet."
13. The judgment of the Court of Appeal in Nisbet case [(1910) 2 KB 689 : 80 LJKB 84 : 103 LT 178 (CA)] was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School v. Kelly[1914 AC 667 : 83 LJPC 220 : 111 LT 305 (HL)]."
17. The term accident has not been defined under the M.V. Act. Sections 165, 166, and 168 of the M.V. Act, 1988 read as follows:
Section 165 of M.V. Act, Claims Tribunals-
(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
Explanation.-For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 [and section 163A].
(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been a District Judge, or
(c) is qualified for appointment as a High Court Judge [or as a District Judge]. [or as a District Judge]."
(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them.
Section 166 of M.V. Act, Application for compensation.-
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such 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.
[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.]
[***]
[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.]
Section 168 of M.V. Act. Award of the Claims Tribunal.-On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
18. In light of the judicial pronouncement let us consider the facts, in case on hand the original act of truck driver was to flee with the truck in order to escape from being arrested by the police because cattle were being illegally transported by him, hence, this was the felonious act of truck driver. In furtherance of this original felonious act, the truck driver hit the police vehicle from behind in which the deceased was also there at that time he was on duty. The truck driver hit the police jeep with great speed so that the jeep overturned several times and lastly, fell into the ditch. This fact itself shows that the truck driver was driving the vehicle rashly and negligently and at a very high speed that firstly it broke the toll barrier and then hit the police vehicle. It is pertinent to mention that truck driver has not stepped into the witness box. Learned tribunal has fallen into error in holding that this matter does not fall within the purview of rash and negligent driving by the truck driver. The learned Tribunal has also fallen into error in holding that if any vehicle is used as a weapon for murder then no compensation can be awarded under M.V. Act because learned tribunal has lost sight of the fact that the death of the deceased had taken place due to the accident arising out of use of motor vehicle. The term murder has to be looked into from two angles one murder due to accident and murder where it is felonious act (a) Murder due to accident: the murder of the deceased was due to an accident arising out of the use of motor vehicle. Therefore, the Trial Court wrongly came to the conclusion that the claimants were not entitled for compensation as claimed by them. (b) Murder is felonious act: in common parlance, murder is a felonious act, where death is caused with intent and the perpetrators of the act normally had the motive against the victim for such killing; however, on the other hand, there could also be other instances where murder was not originally intended and the same was caused in furtherance of other felonious act. In our case the judgment of Ambalika Singh (supra) will have to be also discussed.
19. The aforesaid provisions of the M.V. Act would demonstrate that the term accident has not been defined in the M.V. Act and, therefore, importance of the term "accident" and importance of the term out of use of motor vehicle and negligence would be important.
20. The term use of motor vehicle has been explained by the Apex Court in the case of Shivaji Dayanu Patil v. Vatschala Uttam More, MANU/SC/0402/1991 : 1991 3 SCC 530, the term use of motor vehicle means where the term use of motor vehicle has been explained even leakage of petrol and, thereafter, where the explosion in the place and fire occurred resulting in death of certain villagers. This involved the petrol tanker and one another truck was held to be accident arising out of use of motor vehicle and, therefore, there is a casual relationship between earlier event of accident which was due to collision and later incident of explosion and fired such connection need not be direct or immediate once. If it is demonstrated that the death occurred due to use of motor vehicle, then prima facie claim petition would be maintainable. It goes without saying that it is because of use of motor vehicle that accident occurred. Later on while deciding the matter finally, also the Apex Court in Judgment titled New India Assurance Company Limited Versus Yadu Sambhaji More reported in, MANU/SC/0019/2011 : (2011) AIR SC 666 has taken similar view which goes to show that the tribunal had jurisdiction to entertain such petitions, that to in use or arising out of use of the motor vehicle has been consistently followed in the later judgment. The Apex Court has criticised the finding by the tribunal of rejecting the claim petitions.
21. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
22. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
23. We will have also to consider the definition of the word 'Accident' : (i) The word "accident" is derived from the Latin verb "accidere" signifying "fall upon, befall, happen, chance." In an etymological sense anything that happens may be said to be an accident and in this sense, the word has been defined as befalling a change; a happening; an incident; an occurrence or event. In its most commonly accepted meaning, or in its ordinary or popular sense, the word may be defined as meaning: a fortuitous circumstance, event, or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence; an unusual or unexpected result attending the operation or performance of a usual or necessary act or event; chance or contingency; fortune; mishap; some sudden and unexpected event taking place without expectation, upon the instant, rather than something which continues, progresses or develops; something happening by chance; something unforeseen, unexpected, unusual, extraordinary or phenomenal, taking place not according to the usual course of things or events, out of the range of ordinary calculations; that which exists or occurs abnormally, or an uncommon occurrence; and (ii) Unavoidable accident: One which is not occasioned in any degree, either directly or remotely, by the want of such care and prudence as the law holds every man bound to exercise and the term unavoidable accident does not find any mention in the Act.
24. The facts in this case are that the precedents are in favour of the appellants, the incident occurred due to use of motor vehicle. The facts cumulative prove show that incident occurred due to (A) use of motor vehicle (B) due to negligence of the driver. The death occurred due to use of motor vehicle being driven rashly and negligently. There is casual connection between the first and the second incident and therefore the claim petition under the M.V. Act was maintainable. The tribunal has not taken a holistic view of the matter.
25. Reference to the recent decisions in case of Kalim Khan v. Fimidabee, MANU/SC/0677/2018 : 2018 (J) SCC 687 and the recent decision of this Court in Ambalika Singh v. United India Insurance Co. Ltd., MANU/UP/3009/2017 : 2017 (0) AIJ-UP 381149, deciding similar dispute and the petition could not have been dismissed.
26. In our case, the facts reveal that it was an avoidable accident and the driver has driven the vehicle rashly and dashed the vehicle of the police department from behind. It was his duty to take proper care, but as he was committing an illegal act and was scared of getting arrested, he committed this act maximum. The res ipsa loquitur would also play of major role, the reason being that the accident speaks for itself the reason being the incident would not have occurred namely checking of the truck and, thereafter, chasing the truck. This act of the driver would not have been possible and, therefore, it cannot be said that there is no casual connection between the first incident and the second incident. The learned tribunal with utmost respect has not taken holistic view in the matter while holding that the truck was used as a weapon, the accident is by the use of vehicle and it has to be turned to be an accident. The term 'negligence' would assume significance the term negligence in common parlance would go to show that the driver drove the vehicle negligently as narrated herein-below.
27. Just because the charge sheet is laid under Section 302 will not take the case from the purview of using the vehicle negligently. The evidence of all the witnesses go to show that the driver of the vehicle drove the vehicle rashly and negligently and came from behind and dashed with the jeep deliberately may be he had not caused murder that is not the subject matter of our concerned but the death occurred due to the ante mortem injuries caused due to use of truck in which the truck which dashed with the police vehicle in which the deceased was seated.
28. The judgment of this High Court in UPSRTC v. Vidya Devi, MANU/UP/0337/2010 : 2011 ACJ 2659 will also enure for the benefit of the claimants-appellants, the dismissal of the claim petition is bad in eye of law.
29. On the basis of above discussions, we come to the conclusion that the death of the deceased was result of the rash and negligent driving by truck driver and the accident had taken place while using the motor vehicle by the deceased. Hence, we upturn the finding of learned tribunal given on issue nos. 1 and 4 and set aside the order, rejecting the claim petition. The findings given on issue Nos. 2 and 3 because at the time of accident, the truck in question was duly insured by Insurance Company/respondent no. 3 and the truck driver was having valid and effecting driving licence and we confirm the said findings as nothing is demonstrated by the insurance company to take a different view in the matter.
30. Now we come to the part of the compensation. The accident in question had taken place before 9 years and the record is before us. There are no complicated questions as the deceased was a salaried person the documents are there and, therefore, the next issue which arises is that the matter has remained pending for long, the record and proceedings are before this Court should the matter be remanded to the Tribunal so that compensation is decided or decide this court can the same? The answer is in the affirmative as per the judgments of the Apex Court in Bithika Mazumdar and another Vs. Sagar Pal and others, MANU/SC/0152/2017 : (2017) 2 SCC 748 and of this Court in F.A.F.O. No. 1999 of 2007 (Oriental Insurance Company Limited vs. Smt. Ummida Begum and others) and in F.A.F.O. No. 1404 of 1999 (Smt. Ragini Devi and others Vs. United India Insurance Company Limited and another) decided on 17.4.2019 where in it has been held that if the record is with the appellate Court, it can decide compensation instead of relegating the parties to the Tribunal. The provisions of section 173 read with section 168 will permit this Court to decide the matter.
31. Here the calculation is to on settled principles for grant of compensation where deceased was a salaried person. Hence, we take up the issue with regard to the quantum of compensation payable to the appellants/claimants.
32. Admittedly, the deceased was a police Constable and he was 28 years of age at the time of accident. The pay slip of the deceased, pertaining to the relevant month of April, 2013, is on record which is exhibited as paper No. 39C. According to the pay slip, the basic pay of deceased was Rs. 10,130/- per month and Dearness Allowance was Rs. 7,294/- per month. The net income of the deceased is shown Rs. 18,263/- per month. The deceased was paid Rs. 150/- per month as allowance and Rs. 750/- per month as diet allowance, these two amounts are being deducted from the total salary. Hence the computable salary comes to Rs. 17,363/- per month. The deceased was Government servant and below 40 years of age. Hence, as per National Insurance Company Limited Vs. Pranay Sethi and Others, MANU/SC/1366/2017 : 2017 0 Supreme (SC) 1050, 50% will have to be added towards future loss of income. The deceased was survived by his widow and three minor children along with his parents, the age of father of the deceased was 55 years, it is not shown that the father was dependent or not on the deceased and for two minor children shall be taken as one unit, hence 1/3 will be deducted towards personal expenses of the deceased. As per decision titled Sarla Verma Vs. Delhi Transport Corporation, MANU/SC/0606/2009 : (2009) 6 SCC 121 multiplier of 17 would be applied. As per decision of Pranay Sethi (supra), the claimants/appellants would be entitled to Rs. 15,000/- for lost of assets and Rs. 15,000/- for funeral expenses. The wife of the deceased would be entitled to get Rs. 40,000/- for loss of consortium with addition of 10% every three years. Hence, we fix total compensation Rs. 1,00,000/- under the head of non pecuniary damages plus Rs. 50,000/- each to three minor children who have lost their father at a tender age.
33. In this backdrop we evaluate the income in view of the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others, MANU/SC/1366/2017 : 2017 0 Supreme (SC) 1050 and Sarla Verma Vs. Delhi Transport Corporation, MANU/SC/0606/2009 : (2009) 6 SCC 121 and, the calculation of compensation would be as follows:
i. Income Rs. 17,363/- p.m.
ii. Percentage towards future prospects : 50% namely Rs. 8681/-
iii. Total income : Rs. 17,363 + Rs. 8,681= Rs. 26044/-
iv. Income after deduction of 1/3: Rs. 17,363/-
v. Annual income : Rs. 17,363 x 12 = 2,08,356
v. Multiplier applicable : 17 (as the deceased was in the age bracket of 26-30 years)
vi. Loss of dependency: Rs. 2,08,356 x 17 = Rs. 35,42,052/-
viii. Under the head of non pecuniary damages = Rs. 1,00,000 + Rs. 50,000/-
ix. Total compensation : Rs. 36,92,000/- (round figure).
34. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National 7 Insurance Co. Ltd. Vs. Mannat Johal and Others, MANU/SC/0589/2019 : 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under:
"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
35. We deem it fit to rely on the judgment of the Apex Court in the case of A.V. Padma and others Vs. R. Venugopal, MANU/SC/0065/2012 : 2012 (3) SCC 378 wherein the Apex Court has considered the judgment rendered in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas and others, MANU/SC/0389/1994 : AIR 1994 SC 1631 for disbursement.
36. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma (supra), the order of investment is not passed because applicants/claimants are neither illiterate nor rustic villagers.
37. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunal shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra), the same is to be applied looking to the facts of each case.
38. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount of Rs. 36,92,000/- within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited.
39. Out of the total amount of compensation, father and mother of the deceased would receive Rs. 3,00,000/- each. The three minor children of the deceased would get Rs. 5,00,000/- each plus Rs. 50,000/- each, which shall be kept in fix deposit in nationalized Bank with regard to the children who are still minor till attaining the age of majority. The rest of the amount shall be paid to wife of the deceased.
40. Record be transmitted to tribunal.
41. Recently the Gujarat High Court in case titled the Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No. 4800 of 2021 decided on 05.04.2022, it is held that interest awarded by the tribunal or appellate court under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act, 1961
42. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 8 years have elapsed since occurrence of accident, the amount be deposited in the Saving Account of claimants in Nationalized Bank. The amount shall be credited in the said account with without investment as the case may be.
43. We are thankful to learned counsel for the parties for ably assisting this court in getting this old appeal disposed of.
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