Smt. Runa Jha vs Kashmir Singh
2023 Latest Caselaw 966 Chatt

                                  1

                                                                NAFR
        HIGH COURT OF CHHATTISGARH, BILASPUR

                       MAC No. 1501 of 2017
                 Judgment Reserved on : 24.11.2022
                 Judgment Delivered on : 15.02.2023
   1. Smt. Runa Jha, W/o Late Shri Sanjay Jha, aged about 37 years.
   2. Sushmad D/o Late Shri Sanjay Jha, aged about 22 years.
   3. Akash Jha, S/o Late Shri Sanjay Jha, aged about 18 years.
   4. Minor Suraj Jha, S/o Late Shri Sanjay Jha, aged about 17 years,
      through Natural Guardian mother Smt. Runa Jha
   5. Smt. Urmila Jha, W/o Late Shri Phooj Jha, aged about 64 years.
      All are R/o Villge - Madanpur, Thana & Tahsil - Kharsiya, Civil &
      Revenue District Raigarh (C.G.)


                                                        ---- Appellants
                               Versus
   1. Kashmir Singh, S/o Shri Budha Singh, aged about 60 years, R/o
      House No. 201 Prathmesh Enclave, Near Gurudwara,
      Budhnagar Kamati Road, Nagpur, District Nagpur (Maharashtra)
      (Driver of Vehicle No. CG-04-JD-9715)
   2. Smt. Nargesh Kaur, W/o Shri Kashmir Singh, aged about 57
      years, R/o House No. 201, Prathmesh Enclave, Near
      Gurudwara, Budhnagar Kamati Road, Nagpur, District Nagpur
      (Maharashtra) (Owner of Vehicle No.CG-04-JD-9715)
   3. Branch Manager, United India Insurance company Limited,
      Nagpur, Bank of India Building Kingsway Nagpur (Maharashtra)
      440001 through Branch Manager United India Insurance
      Company Limited Raiigarh Branch, Chakradharnagar Sarla Virla
      Complex, Raigarh, District Raigarh (C.G.) (Insurer of Vehicle No.
      CG-04-JD-9715)
                                                     ---- Respondents



For Appellants          :      Mr. Sumit Shrivastava and Mr. Amit
                        Patel, Advocates.
For Respondent No.3     :      Mr. R.N. Pusty, Advocate.



                 Hon'ble Smt Justice Rajani Dubey

                          C A V Judgment
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1.   This appeal arises out of the award dated 28.08.2017 passed by

     4th Additional Motor Accident Claims Tribunal (for short the

     "Tribunal"), Raigarh (C.G.), in Claim Case No.54/2016 awarding

     a   compensation     of   Rs.7,29,500/-    in   favour   of   the

     appellants/claimants for the death of Sanjay Jha.

2.   Facts

of the case in brief are that on 03.02.2016, deceased

Sanjay Jha, who is husband of appellant No.1, father of

appellant Nos. 2 to 4 and son of appellant No.5, was going to

Kharsiya after loading kerosene oil from Vishrampur Depot in

Tanker bearing registration No.CG-10-JB-1022. On the way to

Kharsiya, one truck bearing registration No. CG-04-JD-9715

driven by respondent No.1 herein, in a rash and negligent

manner, dashed the vehicle (Tanker) of deceased Sanjay Jha as

a result of which, deceased was seriously burnt after the tanker

caught fire in the accident. Thereafter, deceased Sanjay Jha

was taken to JLNHRC Hospital, Bhilai, where he succumbed to

the burn injuries on 04.02.2016. A claim petition was filed by the

appellants/claimants, who happen to be the legal heir of the

deceased claiming a compensation of Rs.53,33,517/- inter alia

pleading that the deceased at the relevant time was aged about

39 years, he was skilled driver and earning Rs.10,000/- per

month and Rs.300/- allowance per day.

3. Pleading of the claimant have, however, been denied by the

respondent/insurance company.

4. After evaluating the evidence available on record, the Tribunal

after holding the deceased accountable for accident, has

awarded the compensation of Rs.7,29,500/- along with interest

@ 9% per annum in favour of the appellant/claimants taking the

monthly income of the deceased as Rs.9,000/- per month and

Rs.1,08,000/- per annum, applying the multiplier of 15 and

deducting 1/4th towards his personal expenses. Hence, this

appeal for enhancement.

5. Counsel for the appellant/claimant submits that the Tribunal has

erred in law in not awarding adequate compensation to the

claimants. The learned Tribunal did not consider the fact that

respondent Nos. 1 and 2 have remained ex-parte and the

respondent No.3 has not produced any evidence to establish the

finding of contributory negligence but the finding has been

recorded in para 16 and whole of the award amount has been

deducted half though the amount of loss of consortium and love

and affection cannot be deducted in any case. Learned counsel

also submits that the learned Tribunal has awarded a meager

amount in other head like love and affection, funeral expenses

and loss of future income which may be enhanced suitably. The

learned Tribunal has also committed error while passing the

award impugned by not taking into consideration the daily

allowance Rs.300/-, which the deceased used to get. In support

of his submission, he placed reliance on the decision of Hon'ble

Supreme Court in the matter o Jiju Kuruvila and Ors. Vs.

Kunjujamma Mohan and Ors. reported in (2013) 9 SCC 166.

6. On the other hand, counsel for the respondent/insurance

company supporting the award impugned placed his reliance on

the decisions of Hon'ble Supreme Court in the matter of

Ranjana Prakash and Ors. Vs. Divisional Manager and Anr.

reported in (2011) ACJ 2418 and Buoy Kumar Dugar Vs.

Bidya Dhar Dutta and Ors. reported in (2006) 3 SCC 242.

7. Heard counsel for the parties and perused the documents on

record.

8. The learned Tribunal, in para 16, recorded the finding that the

deceased was also held responsible for the accident and

deducted half of the awarded compensation, but the non-

applicant/respondent No.1 herein (driver) did not appear before

the learned Tribunal. That apart, non-applicant/respondent

No.3-Insurance Company also did not examine any witness in its

favour. Even non-applicant/respondent No.3 did not plead about

the contributory negligence of the deceased in their reply, as

such, without any pleading and without any evidence to that

effect, the learned Tribunal only on assumption recorded the

finding that the deceased was also responsible for the accident.

This finding of the learned Tribunal, considering the material and

evidence on record, is not based on proper appreciation of

material on record.

9. Hon'ble Supreme Court in the matter of Jiju (supra) held in para

20.5 as under :-

"20.5 The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent

driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

10. This, in view of decision of Hon'ble Supreme Court in Jiju

(supra) and considering the fact and circumstances of the case,

material on record, the various factors of accident, the finding

with regard to contributory negligence on the part of the

deceased is not sustainable and the same is set aside.

11. In a motor accident claim case, what is important is that, the

compensation to be awarded by the Courts/Tribunals should be

just and proper compensation in the facts and circumstances of

the case. It should neither be a meager amount of

compensation, nor a Bonanza.

12. Now this Court shall examine as to whether the compensation of

Rs.7,29,500 /- awarded by the Tribunal is just and proper

compensation in the given facts and circumstances of the case.

13. From the pleadings of the respective parties and the overall

evidence on record it is clear that the accident occurred with the

offending vehicle which was insured with respondent No.3 and

was being driven by respondent No.1. Evidence further goes to

show that offending vehicle was being driven in rash and

negligent manner. The appellants/claimants have filed a

certificate (Ex.P/86) of employer of the deceased where he was

working as Driver showing his salary Rs.10,000/-, which was

duly signed by authorised signatory. The Tribunal, on the basis

of evidence of Rajesh Kumar Goenka (AW/2), Transporter, who

stated that he was giving Rs.10,000/- per month as salary to the

deceased including Rs.300/- per day as allowance in the event

of going out of station with the tanker, and in view of judgment of

Hon'ble Supreme Court in the matter of Kala Devi & Ors. Vs.

Bhagwan Das Chouhan & Ors. reported in 2014-4 TAC 673

SC, accessed the monthly salary of deceased as Rs.9,000/-.

Thus, this establishes that the total monthly earning 'including

allowance' of the deceased was Rs.9,000/-. The accident took

place in the year 2016 and this Court does not find any fault in

calculating the monthly income of the deceased as Rs.9,000/-.

Annual income of the deceased thus comes to Rs.1,08,000/-.

14. Accordingly, the monthly income of the deceased is taken to be

Rs.9,000/- which makes the annual income as Rs.1,08,000/-.

The deceased was married and 39 years of old at the time of

accident and he was getting fixed salary. Thus, in view of

judgment of Hon'ble Supreme Court in the matter of National

Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16

SCC 680, future prospects at 40% of the actual income of the

deceased is required to be taken, thus, the amount comes to

Rs.43,200,/- (40% of 1,08,000/-). Further, after deducting 1/4

towards the standard deduction on the deceased himself, the

annual loss of dependency comes to Rs.1,13,625- [Rs.37,875

1/4rd of (1,08,000/- + 43,500/- = 1,51,500/-)] which by applying

the multiplier of 15 rises to Rs.17,04,375/- as the total loss of

dependency which the deceased must have spent on the

dependents. The Tribunal after appreciating oral and

documentary evidence has rightly awarded Rs.1,24,000/-under

the head medical expenses and Rs.10,000/- for transportation.

The learned Tribunal also awarded Rs.1,00,000/- under the head

'loss of love and affection & loss of consortium, which in the facts

and circumstances of the case, in view of Pranay Sethi (supra)

and Magma General Insurance Co. Ltd. Vs. Nanu Ram &

Ors. reported in 2018 (18) SCC 130, is just and proper. The

learned Tribunal has awarded Rs.10,000/- under the head

Funeral Expenses, which in the facts and circumstances of the

present case, and in view of the judgment of Hon'ble Supreme

Court in the matter of Pranay Sethi (supra) is inadequate. The

learned Tribunal has not awarded any amount under the head

Loss of Estate'. The Supreme Court in the matter of Pranay

Sethi (Supra) dealt with the various heads under which

compensation is to be awarded in a death case. Thus, keeping

in view all these things, above discussion and in view of

decisions of Hon'ble Supreme Court in the matter of Pranay

Sethi (supra), this Court is of the view that the amount awarded

by the Claims Tribunal is on lower side and requires

reconsideration. The claimants/appellants are entitled for

compensation in the following manner:-

       Head            Awarded by Tribunal          Awarded by this Court
Income                1,08,000/- (Rs.9,000/- Rs.1,08,000/- (Rs.9,000/- per
                      per month x 12)        month x 12)
Future Prospect       Nil                      Rs.43,200/-      (40%        of
                                               1,08,000/-
Deduction towards Rs. 27,000 (1/4th of Rs. 37,800/- (1/4th                  of
living and personal 1,08,000)          1,08,000 + 43,200/-                  =
expenses                               Rs.1,51,200/-)
Total Income          Rs.81,000/-              Rs.1,13,400/-

Loss   of      Future Rs.12,15,000             Rs.17,01,000/- (Rs.1,13,400
Income                (Rs.81,000 x 15)         x 15)
Medical Expenses      Rs.1,24,000/-            Rs.1,24,000/-
Towards Love and Rs.1,00,000/-                 Rs.1,00,000/-
Affection
For          Funeral Rs.10,000/-               Rs.15,000/-
Expenses
Loss of Estate        Nil                      Rs.15,000/-
Transportation        Rs.10,000                Rs.10,000/-

Total Compensation Rs. 7,29,500/- out of Rs.19,65,000/-

awarded            Rs.14,59,000/- holding
                   the deceased equally
                   accountable for the
                   accident.

15. Thus, the total compensation including the amount awarded on

conventional heads comes to Rs.19,65,000 i.e. (17,01,000 +

2,64,000/-) for which the claimants are entitled to receive as

compensation, is just and proper, for the death of deceased

Sanjay Jha. Since the Tribunal has already awarded

Rs.7,29,500/-, after deducting the same the claimants/appellants

are entitled for enhanced amount of Rs.12,35,500/-. This

additional amount of compensation shall carry interest @ 9%

p.a. from the date of filing of claim application till its realization.

The amount received by the claimants, if any, shall be adjusted

in the enhanced sum.

16. Appeal is thus allowed in part with the modification in the award

impugned as indicated above.

Sd/-

(Rajani Dubey) Judge

pkd