Hon'ble Ajai Tyagi,J.

(Per Hon'ble Ajai Tyagi, J.)

1. Heard Amitabh Agarwal, learned counsel for the appellants and Shri Nagendra Kumar Srivastava assisted by Miss Anubha Gupta, learned counsel for the respondents.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 29.07.2005 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Bareilly (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.662 of 2001 awarding a sum of Rs.54,500/- with interest at the rate of 6% p.a. as compensation.

3. The brief facts as culled out from the record are that this claim petition was filed before the learned tribunal by the appellants on account of death of Jai Kishan Gupta in a road accident on 26.02.2001. It is averred in petition that on 26.2.2001, the deceased was travelling in Maruti Car No. UP 22 B 5032 from Badaun to Rampur via Bareilly along with his wife and son. The driver of the car was driving rashly and negligently. He was cautioned by the deceased and his wife but he paid no heed. Consequently, Car collided with a tree in District Bareilly. In this accident, the deceased sustained serious injuries. He was admitted in District Hospital and for better treatment he was being carried to Delhi, but on the way he died.

4. The claim petition was decided by the tribunal and only Rs.54,500/- were awarded along with interest 6% per annum under "no fault liability". Because it was the finding of the tribunal that deceased himself was driving the car at the time of accident and he himself was negligent and responsible for the accident.

5. Aggrieved with the impugned judgment appellant preferred this appeal.

6. Learned counsel for the appellant made submission that at the time of accident, the driver, namely, Aslam Khan was driving the Car. It is submitted that First Information Report of the accident was lodged in concerned police station. In First Information Report, it is also clearly mentioned that car was being driven very rashly and negligently by driver Aslam.

7. Learned counsel further submitted that the driver Aslam Khan was produced in evidence before learned Tribunal as PW-3. In his testimony, he has admitted that he was driving the car, but learned tribunal has not appreciated his evidence in right perspective. It is next submitted that learned tribunal has made the ground of rejection of claim that a claim form of the car was filled up by the brother of deceased because deceased was the registered owner of the car and in the aforesaid claim form, he mentioned that deceased was driving the car.

8. On the basis of this entry in the claim form, learned tribunal reached to the conclusion that the deceased was himself driving the car. Learned counsel has relied on the judgment of the Apex Court titiled National Insurance Company Ltd v. Chamundeshwari and others in Civil Appeal No.6151 of 2021 delivered on 1.10.2022; Kajal Vs. Jagdish Chand reported in 2020 (0) AIJEL-SC 65725; and judgment of this Court in the case of Smt. Rahisa Begum Since Deceased And Another v. Sri Susheel Chandra Gupta and Another delivered on 2.9.2021.

9. While wife of the deceased and car driver Aslam Khan have specifically stated in their respective testimony that Aslam Khan was driving the car, but their testimony was not believed by the tribunal.

10. Learned counsel for Insurance Company vehemently objected the submissions made by appellant and submitted that First Information Report of the accident was lodged by the wife of the deceased after the delay of 15 days and no explanation of this delay was given, it show that a story was cooked up by the appellants with Aslam Khan to obtain compensation illegally and to fulfil the intention, it was shown in F.I.R. that Aslam Khan was driving the car. Learned counsel also submitted that the car was in the name of the deceased. The brother of the deceased filled up the form, provided by the insurance company, to claim the damages with regard to the car. In the claim form, he had clearly mentioned that the deceased was driving the car. Hence, the tribunal has rightly refused to pay the compensation under Section 166 of Motor Vehicles Act because the accident had taken place due to own negligence of the deceased.

11. Perusal of impugned judgment shows that the learned tribunal has applied the principles for appreciation of evidence as are required to prove a a criminal case beyond reasonable doubt. In this regard, we want to percolate the law regarding the standard of proof with regard to the claim petitions under Motor Vehicles Act, 1988 .

12. The judgment of the Apex Court in Anita Sharma v. New India Assurance Co. Ltd. (2021), 1 SCC 171 would also apply to the facts of this case. The evidence of the witnesses has not been accepted which is also against the Judgment in the case of the Apex Court in Vimla Devi and others Vs. National Insurance Company Limited and another , (2019) 2 SCC 186

13. The Madras High Court has also held in Reliance General Insurance Company Ltd. v. Subbulakshmi and other, C.M.A.No.1482 of 2017 and CMP No.7919 of 2017 and para 7 of the said judgment is quoted hereinbelow:

(i) In a decision in Union of India v. Saraswathi Debnath reported in 1995 ACJ 980, the High Court of Gauhati at Paragraph 6 held as follows:

(ii) In Bimla Devi & Ors. Vs. Himachal RTC reported in 2009 (13) SCC 530, the Hon'bl Supreme Court held as follows:

14. Learned tribunal has held that deceased was himself driving the car. Perusal of judgment shows that in the concluding part, learned tribunal has mentioned that a report was made at Police Station Fatehganj (West) on 27.02.2001 wherein it has been mentioned that in the Maruti Car, there were only three persons, Jai Kisan Gupta, his wife and his son when the accident took place, but we are not convinced with this finding because perusal of First Information Report, which is on record, goes to that it is mentioned that deceased, his wife and his son were travelling in Maruti car, but further it is also mentioned that Maruti was being driven by Aslam Khan.

15. Parentage and address of Aslam Khan is also disclosed in First Information Report. The driver Aslam Khan was examined before the tribunal. In this testimony, he has admitted that at the time of accident he was driving the car and when the car was dashed into the tree, he jumped out of the car.

16. The similar version is made by the wife of the deceased before the tribunal as PW-1.

17. Learned tribunal has placed reliance on the claim form, filled up by the brother of the deceased, which is on record. Learned counsel has submitted that the copy of the claim form was filed before the tribunal by the Insurance Company after completion of the evidence of claimants. Hence, claimants could not get an opportunity to rebut this piece of evidence.

18. We are of the view that the brother of deceased, who filled up the form, was not produced before the tribunal nor insurance company had prayed to summon him for evidence. In case when the brother of the deceased had not stepped into the witness box, the appellants could not get opportunity to cross examine him. Cross examination is the tool to elicit the truth from the mouth of the witness and if a witness is not cross examined by opposite party or the witness is not produced in Court/tribunal, the opportunity of opposite party to cross examine him is lost and prejudice is caused to the opposite party. Hence, in such event, no adverse inference can be drawn against the party to whom the opportunity of cross examination is denied.

19. Moreover, as held in the case of Anita Sharma (supra) and Reliance General Insurance Co. Ltd. (supra) in a claim under Motor Vehicles Act , the evidence should not be scrutinised in a manner as is done in a civil suit or a criminal case. In a civil case the rule is preponderance of probability and in a criminal case, the rule is proof beyond reasonable doubt. These para meters are not applied in case of claim petition under the Motor Vehicles Act, 1988 .

20. On the basis of above discussion, we hold that the tribunal has not lawfully appreciated the evidence on record and we upturn the finding that the accident was caused by the rash and negligent driving of the deceased himself and we further hold that the appellants are entitled to get compensation on account of the death of the deceased in road accident.

21. The next issue which arises is that the matter has remained pending for long, the record and proceedings are before this Court and the matter whether be remanded to the Tribunal or decided here? The answer is in the affirmative as per the judgments of the Apex Court in Bithika Mazumdar and another Vs. Sagar Pal and others , (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.

22. The aforesaid claim petition was filed in the year 2001 and decided by the tribunal in the year 2005. From the date of judgment of tribunal, 17 years have elapsed. Hence, there is no justification to remand the matter to the tribunal for computation of the amount of compensation. Because there would be more delay in disbursement of compensation to the claimant/appellant. The age of wife of deceased was 25 years when the petition was filed and now she is more than 45 years old. This legislation is benevolent legislation and is made for financial help to the survivers of the deceased, hence we think it appropriate to calculate the quantum of compensation by us.

23. As per averment in claim petition, the deceased was in service in a private company in Bombay when the accident took place.

24. It is submitted by learned counsel for the appellants that the deceased was getting salary at Rs.30,000/- per month. It is also further submitted that appropriate amount for future loss of income should also be awarded along with the amount under non pecuniary heads.

25. Per contra, learned counsel for insurance company vehemently objected to it and submitted that a salary certificate as alleged is filed by the claimants which is not proved by any evidence. Hence this certificate cannot be believed.

26. Perusal of record shows that a salary certificate showing the name of the deceased is issued by a company, Informatrix Ltd. In which Rs.31,167/-monthly salary is shown, but we are in full agreement with the submission of learned counsel for the insurance company that this certificate is not proved by any evidence. No officer/employee of the aforesaid company has stepped into the witness box with relevant record to prove the salary as mentioned in the certificate.

27. Hence, we are unable to place reliance on the certificate, filed by the appellants. But this fact cannot be denied that at the time of death, the age of the deceased was 30 years and he was well educated person. Hence, it is not disputed that deceased had potentiality to earn. As per judgment in Meena Pawaia & ors. Vs. Ashraf Ali & ors, 2021 LawSuit (SC) 743, potentiality of the deceased to earn is to be considered. Hence, we hold the monthly income of the deceased at Rs.10,000/- per month. The age of the deceased was 30 years. Hence in the light of the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others , 2017 0 Supreme (SC) 1050, 40% would be added as future loss of income. There are 2 dependents on the deceased, hence 1/3 would be deducted for personal expenses in the light of the judgment of Sarla Verma Vs. Delhi Transport Corporation , (2009) 6 SCC 121.

28. In this backdrop this Court evaluates the compensation in view of the judgment of Pranay Sethi (supra) and Sarla Verma (supra), the recalculation of compensation would be as follows:

29. 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 V/s. Venugopal, Reported in 2012 (1) GLH 6 (SC), 442, the order of investment is not passed because applicants /claimants are neither illiterate nor rustic villagers.

30. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State 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 not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

31. 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 , 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

32. 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 along with additional amount 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. The amount already deposited be deducted from the amount to be deposited.

33. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagauri P. Ladhani v/s The Oriental Insurance Company Ltd. , reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant 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 No.1 of 2020 in First Appeal From Order No.23 of 2001 ( Smt. Sudesna and others Vs. Hari Singh and another ) while disbursing the amount.

34. 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 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.

35. We are thankful to learned counsels for the parties for ably assisted the Court.

36. Record be sent back to court below forthwith, if any.

Order Date :- 08.04.2022 A.N. Mishra