Urmila Devi vs Sri Sunil Kumar
2021 Latest Caselaw 2644 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 88 of 2018
                                 ......

1.Urmila Devi

2.Birendra Sahu

3.Vikash Kumar .... ..... Appellants

Versus

1. Sri Sunil Kumar

2.The Bajaj Allianz General Insurance Company Limited......Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) For the Appellants : Mr. Vijay Kumar Sharma, Advocate For the Respondents no.1 : Mr. Ashok Kumar, Advocate For the Respondent no.2 : Mr. Alok Lal, Advocate

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04/Dated: 02/08/2021.

Heard, learned counsel for the parties.

Learned counsel for the appellants, Mr. Vijay Kumar Sharma has submitted that appellants/claimants, namely, 1.Urmila Devi, 2.Birendra Sahu and 3.Vikash Kumar, have preferred this Misc. appeal for enhancement of the award dated 17.07.2017, passed by learned District Judge-I-cum- Additional Claim Tribunal, Chatra, whereby the claimants have been awarded compensation to the tune of Rs.2,12,000/- including the amount under no fault liability with interest @ 7.5% per annum from the date of filing of claim petition till the date of realization of amount by account payee cheques to the claimants in equal proportion.

Learned counsel for the appellants, Mr. Vijay Kumar Sharma has assailed the impugned award on the ground that deceased- Mahendra Sahu was a pillion rider as it would be apparent from the evidence of C.W.-2 (Birendra Sahu) during his cross-examination, but the learned Tribunal has deducted 25% of the compensation as contributory negligence, on the ground that in the FIR, the learned Tribunal has found that name of the driver of the motorcycle has not been mentioned.

Learned counsel for the appellants has further submitted that the learned Tribunal has considered less income of the deceased as Rs.3,000/- contrary to the evidence brought on record of Rs.10,000/- per month being a progressive agriculturist and no contrary documentary evidence has been brought on record by the Insurance Company.

Learned counsel for the appellants has further submitted that the future prospect of the deceased has not been considered by the learned Tribunal, though the deceased died at the age of 52 years.

Learned counsel for the appellants has further submitted that instead of Rs.14,000/- as granted by learned Tribunal, Rs.70,000/- may be granted under the conventional head, in view of the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 at para 59.8 (for the loss of Estate Rs.15,000/-, for loss of consortium Rs.40,000/- and for funeral expenses Rs.15,000/-).

Learned counsel for the respondent/owner has submitted that he has nothing to say as the vehicle was duly insured, as such, the Insurance Company is liable to indemnify the award.

Learned counsel for the respondent- Bajaj Allianz General Insurance Co. Ltd., Mr. Alok Lal has submitted that the learned Tribunal has rightly deducted 25% of the compensation amount as the contributory negligence in view of the discussion made by the learned Tribunal at page nos.7 and 8 of the impugned judgment which may profitably be quoted hereunder:-

7."I may also add one more aspect of the case. From the adumbration of facts, it is clear as crystal that at the time of accident the deceased and one Prasad Toppo were travelling by the motorcycle. Though in FIR there is no mention of the fact as to who was driving the motorcycle at the time of accident. Admittedly, the claimants have not furnished any document of the Motorcycle, such as Registration Certificate and Insurance Policy as well as driving license of the deceased nor any explanation has been offered by the claimants as to why they have not impleaded as party. They have even not disclosed the number of the motorcycle rather tried to throw dust in the eye of this court by not mentioning the number, R.C. book and insurance paper of the motorcycle ridden by the deceased along with his friend. However, if the deceased or co rider had any document of the motorcycle, the claimants might have filed the same in the court. It is quite strange that the insurer of the Motorcycle has not been impleaded as opposite party nor any claim has been made against him in this case.

8. Therefore, considering the aforesaid facts, it can be held that not only the incident took place due to rashness and negligence of the driver of the Tavera but also due to rashness and negligence of the deceased himself who was either driving or riding the motorcycle on the road without having and driving license and insurance of the motor cycle and registration certificate. This fact also cannot be denied that the deceased himself was also responsible for driving or riding the motor cycle without any licence and insurance policy. Therefore, deceased contributed in the occurrence of accident up to the extent of 25 per cent and negligence was attributed to the driver of the Tavera up to 75 per cent.

In the result, therefore, these issues are decided accordingly."

Learned counsel for the respondent-Bajaj Allianz General Insurance Co.

Ltd. has further submitted that, who was driving the motorcycle was not clear in the FIR. The learned Tribunal has also categorically held at Para-7, Page 5 of the impugned award, that admittedly the claimant's witnesses have not witnessed occurrence of the accident hence the issue about the negligence has to be decided on the basis of police paper filed on record.

Learned counsel for the appellants, Mr. Vijay Kumar Sharma has replied

that learned Tribunal without seeing the case-diary and without considering the evidence of C.W.2 (Birendra Sahu) during cross-examination came to such finding and deducted 25% because of contributory negligence, though admittedly vehicle belong to one Prasad Toppo, who was injured, as such, the learned Tribunal has no reason to deduct 25% on the ground of contributory negligence as it is a benevolent legislation and there is no evidence that deceased was a driving the motorcycle.

Learned counsel for the appellants has further submitted that there is delay of 119 days in preferring the appeal and for condonation of the same, I.A. No.1898 of 2018 has been filed, as such, delay of 119 days in preferring the appeal may be condoned.

Learned counsel for the respondent-Bajaj Allianz General Insurance Co. Ltd. has opposed the same, but has not filed any counter-affidavit in opposing the limitation petition.

After hearing learned counsel for the parties, it appears that there is merit in this appeal, this Court in a benevolent legislation has considered the same. Accordingly, delay of 119 days in preferring the appeal is hereby condoned.

I.A. No.1898 of 2018 is hereby allowed.

So far the contributory negligence is concerned, since there is clear evidence of C.W.2- Birendra Sahu, that Prasad Toppo was driving the motorcycle, as such, in a benevolent legislation, this Court cannot deduct the compensation under the contributory negligence on the basis of conjectures and surmises.

Accordingly, in absence of any evidence brought on record that the deceased was driving the motorcycle, this deduction towards contributory negligence cannot be allowed, as such, the same is hereby set aside.

So far the merit of the case is concerned, it is true that claimants have claimed the income of the deceased, who was a progressive agriculturist to the tune of Rs.10,000/- per month, which has been considered by the learned Tribunal to the tune of Rs.3,000/- per month, though the accident took place on 24.04.2012 and in the judgment passed by the Apex Court in the case of Chameli Devi vs. Jivrail Mian, 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/- for an incident dated 02.01.2001. In the present case, the deceased was agriculturist and the claimants have not claimed that deceased was daily-wage earner meaning thereby his income cannot be less than the income of a carpenter, who used to earn his livelihood as daily bread-earner.

Accordingly, this Court considers the income of the deceased not less than

Rs.7,500/- per month as the accident in the present case is of dated 24.04.2012 whereas in that case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC, Apex Court has considered the income of a carpenter in absence of any documentary evidence to be Rs.5,000/- for the accident dated 02.01.2001.

Accordingly, the income of the deceased is calculated to be Rs.7,500/-. The new calculation chart would be as follows :-

               Annual Income                            Rs.90,000/- (Rs.75,00/- x 12)
               1/3rd deduction towards personal and Rs.90,000/-          minus      Rs.30,000/-   =

living expenses as deceased had three Rs.60,000/- dependents [Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 30] Multiplier as 11 as deceased was in the Rs.60,000/- x 11 = Rs.6,60,000/- age group of 51-55 [Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 42] Future Prospect @ 10% [National Rs.6,60,000/-+ Rs.66,000/- = Insurance Company Ltd. vs. Pranay Rs.7,26,000/- Sethi, reported in (2017) 16 SCC 680 at para 59.4] Conventional Head [National Insurance Rs.70,000/- Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 at para 59.8 i.e. loss of Estate- Rs.15,000/-, loss of consortium-

               Rs.40,000/-    and     funeral     expense-
               Rs.15,000/-]
               Total Compensation Amount                Rs.7,26,000/-      +       Rs.70,000/-    =
                                                        Rs.7,96,000/-.

Since the compensation computed is more than the award passed by the learned Tribunal, as such, is being enhanced.

The Insurance Company is directed to indemnify the amount of Rs.7,96,000/- along with interest @ 7.5% per annum from the date of filing of the claim application till its realization, in view of the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. State Road Transport Corporation, reported in (2008) 4 JCR 79 SC = (2008) 12 SCC 208 as well as in view of Section 171 of the MV Act.

However, the amount already paid including the amount paid under Section 140 of the MV Act by the Insurance Company shall be deducted from the enhanceed amount of compensation and the balance amount shall be paid by the Insurance Company within a reasonable time as the accident is of dated 24.04.2012.

Accordingly, the instant Misc. Appeal stands allowed with aforesaid modification.

(Kailash Prasad Deo, J.) sandeep/R.S.