Jharkhand High Court
Shanti Devi vs M/S Bajaj Allianz General ... on 17 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 385 of 2018
........
Shanti Devi .... ..... Appellant
Versus
M/s Bajaj Allianz General Insurance
Company Limited & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellant : Mrs. Lokeshwari Banerjee, Advocate.
Mr. Satish Kumar, Advocate.
For the Respondent No. 1 : Mr. S.J. Roy, Advocate.
........
06/17.04.2021.
Heard, learned counsel, Mrs. Lokeshwari Banerjee assisted by
learned counsel for the appellant, Mr. Satish Kumar and learned
counsel for the respondent no. 1, Mr. S.J. Roy.
Learned counsel for the appellant has submitted that the
claimant namely, Shanti Devi is the appellant before this Court and
she has preferred this appeal for enhancement of award dated
31.03.2018 passed by learned District Judge-1st-cum-M.A.C.T.,
Bokaro in Motor Accident Claim Case No.68/2013, whereby the
claimant has been awarded compensation for the dependents i.e.
herself and three sons of the deceased, Situ Yadav, to the tune of
Rs.4,07,200/- after deducting Rs. 50,000/-, which has already been
paid to the claimant under Section 140 of Motor Vehicles Act
alongwith interest @ 7% per annum from the date of filing of the
claim application. However, if the amount is not paid within one
month from the date of the order, the Insurance Company shall be
liable to pay interest @ 8 % per annum on the compensation amount.
Learned counsel for the appellant has submitted that deceased
Situ Yadav was returning to his house on his bicycle on 26.12.2011
and when he reached near Village - Naiya, the offending vehicle i.e.
Tata Magic Goods Carrier vehicle bearing registration No. JH-09P-
1582 dashed him causing serious injury. Thereafter, he was admitted
to Bokaro General Hospital and was treated till his last breath on
30.12.2011 and FIR has been lodged vide Gomia P.S. Case
No.03/2012 dated 03.01.2012 against the driver of the offending
vehicle.
Learned counsel for the appellant has submitted that vehicle
was duly insured before M/s Bajaj Allianz General Insurance
Company Limited vide Policy No. OG-12-9995-1083-00024521 for
the period from 28.10.2011 to 27.10.2012, as such, vehicle was duly
insured at the relevant time. The Insurance Company has not
preferred any appeal against the same impugned award even though
the liability has been fastened upon the Insurance Company.
Learned counsel for the appellant has further submitted that
the deceased left behind claimant, Shanti Devi and O.P. No.3,
Shankar Yadav, O.P. No.4, Chandan Yadav and O.P. No.6, Kanhai
Lal Yadav all sons of the deceased, who are dependents upon the
deceased, as such, this Court may consider the enhancement of the
compensation on the ground that income of the deceased has been
wrongly considered by the learned Tribunal and wrong deduction has
been made towards personal and living expenses contrary to the
judgment passed by Apex Court in the case of Sarla Verma (Smt.) &
Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6
SCC 121 (Para-30) as the number of dependent is four, the
deduction ought to have been 1/4th instead of 1/3rd as held by the
learned Tribunal.
Learned counsel for the appellant has further submitted that
medical expenses to the tune of Rs. 30,000/- incurred in treatment of
the deceased has been brought on record as Exhibit-2 i.e. medical
bill of the deceased of Bokaro General Hospital, a reputed medical
hospital, which has not been considered by the learned Tribunal
without any specific reason.
Learned counsel for the appellant has further submitted that
interest has been awarded @ 7% per annum instead of 7.5% per
annum from the date of filing of the application contrary to the
judgment passed by Apex Court in the case of Dharampal and Sons
Vs. U.P. State Road Transport Corporation reported in 2008 (4)
JCR 79 (SC).
Learned counsel for the appellant has submitted that deceased
was working a contractual labourer as discussed in paragraph-12 of
the impugned judgment / award before G.B. Enterprises, IEL Gomia,
Bokaro though wage slip has been brought on record as Exhibit-1 for
the particular month when deceased worked for 20 days i.e. between
21.10.2011 to 20.11.2011 @ Rs. 191.71 per day, though the claimant
has claimed the income of the deceased as Rs.10,000/- and apart
from that, deceased has agriculture income of Rs.50,000/- per
annum.
Learned counsel for the appellant has thus submitted that this
Court may consider the compensation to be just and fair
compensation and may enhance the same.
Learned counsel, Mr. S.J. Roy, appearing for M/s Bajaj
General Insurance Company Limited has opposed the prayer and has
submitted that learned Tribunal has reason to believe the income of
the deceased for 20 days in view of Exhibit-1 i.e. Wages slip of the
deceased.
Learned counsel for the Insurance Company has submitted
that the learned Tribunal has considered the interest for 30 days to be
@ 7% per annum, but after that interest @ 8% per annum has been
awarded, as such, this Court may not interfere with the same.
Considering the rival submission of the parties, looking into
facts and circumstances of the case, it appears that deceased Situ
Yadav left behind four dependents. The claimants have claimed the
income of the deceased to be Rs.10,000/- per month, but the learned
Tribunal has considered the income of the deceased as Rs,4,000/- per
month on the basis of Exhibit -1, which was wage slip for one month
i.e. from 21.10.2011 to 20.11.2011, when the deceased has worked
for 20 days only. This Court is conscious of the position that in the
case of Chameli Devi & Others Vs. Jivrail Mian & Others reported
in 2019 (4) TAC 724 (SC), the Apex Court has considered the
income of a carpenter, in absence of any documentary evidence, to
be Rs.5,000/- per month, who lost his life in the year 2001. In the
present case, accident is of dated 26.12.2011 and the income of
deceased has been shown by Exhibit-1 from 21.10.20211 to
20.11.2011 to the tune of Rs. 191.71 per day for 20 days, it does not
mean that a person was sitting idle for 10 days of a month, he must
be earning something for his livelihood as well as for his family
constituted at that time of five persons. Accordingly, without going
into minute detail, this Court consider the income of the deceased to
be Rs. 5,000/- per month as if it is presumed that the deceased was
working for 26 days which is multiplied by daily wage @ Rs. 191.71
per day, then the income will come to Rs. 4,984.46.
Under the aforesaid circumstances, this Court consider the
income of the deceased to be Rs.5,000/- per month for just and fair
compensation in view of the judgment passed by the Apex Court in
the case of Chameli Devi(Supra).
So far Exhibit-2 with regard to the medical expenses incurred
by the family in treatment of the deceased from 26.12.2011 till
30.12.2011 is concerned, a medical bill of Bokaro General Hospital
has been adduced as Exhibit No. 2 owing to Rs.30,000/-, as such, it
ought to have been granted by the learned Tribunal as nothing has
been stated by the Insurance Company that this bill was forged and
fabricated. This Court consider that the same amount is also payable
to the claimant.
So far deduction under the personal and living expenses of the
deceased is concerned, the learned Tribunal has considered it to be
1/3rd though the family comprises of five persons, the deceased left
behind four dependents i.e. wife and three sons, as such, in view of
the judgment passed by the Apex Court in the case of Sarla Verma
(Smt.)(Supra) (para-30), the deduction ought to have been 1/4th .
So far the interest is concerned, the interest has been granted
@ 7% per annum from the date of filing of claim application till one
month of the award, failing which the interest has been enhanced @
8%. This is also been interfered by this Court considering the
uniform method adopted by this Court in view of the judgment
passed by the Apex Court in the case of Dharampal and Sons Vs.
U.P. State Road Transport Corporation reported in 2008 (4) JCR 79
(SC), as such, the same shall be payable @ 7.5% from the date of
filing of the claim application till the date of indemnifying the award.
The aforesaid amount shall be paid after deduction of ad
interim compensation of Rs. 50,000/- paid to the claimant under
Section 140 of the Motor Vehicles Act.
So, the new calculation shall be as follows:-
Income Rs. 5,000/- per month
Annual Income Rs. 5,000/- x 12 = Rs. 60,000/-
10% future prospect Rs. 60,000/- + Rs. 6,000/-
Pranay Sethi (Para- 59.4) = Rs. 66,000/-
1/4th deduction towards personal Rs. 66,000/- x 1/4 = Rs. 16,500/-
and living expenses
Sarla Verma (Para-30)
Total Income Rs. 66,000/- - Rs. 16,500/-
= Rs. 49,500/-
Multiplier of 11 (as the deceased Rs. 49,500/- x 11 = Rs. 5,44,500/-
was in the age group of 51-55
years) Sarla Verma (Para-42)
Conventional Head Rs. 70,000/-
Pranay Sethi (Para-59.8)
Medical Expenses Rs. 30,000/-
Total Compensation Amount Rs. 5,44,500/- + Rs. 70,000/- + Rs.
30,000/- = Rs. 6,44,500/-
Rs. 50,000/-, which has already been paid by the Insurance
Company, shall be deducted from the compensation amount of Rs.
6,44,500/-, then it comes to Rs. 5,94,500/-. The same shall be paid
along with interest @ 7.5% per annum in view of the judgment
passed by the Apex Court in the case of Dharmpal & Sons (Supra)
from the date of filing of the claim application in view of Section
171 of the Motor Vehicles Act till the date of actual indemnifying the
award. Since the occurrence is of the year 2011, the Insurance
Company shall indemnify the same within a reasonable time.
Accordingly, the Miscellaneous Appeal is allowed.
(Kailash Prasad Deo, J.)
Sunil/-
