Smt. Shobha Devi vs The Iifco Tokio General Insurance ...
2021 Latest Caselaw 2647 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 04 of 2018
                                 ......

1.Smt. Shobha Devi

2.Minor Sachin Kumar Singh

3.Minor Santosh Kumar Singh

4.Sri Tulshi Narayan Singh

5.Smt. Dewanti Devi .... ..... Appellants

Versus

1. The IIFCO TOKIO General Insurance Company Ltd.

      2.Md. Alauddin Ansari                                         ......Respondents

      CORAM:        HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                    (Through : Video Conferencing)
      For the Appellants                 : Mr. Birendra Kumar, Advocate
      For the Respondent no.1            : Mr. Ashutosh Anand, Advocate
                                 -----
07/Dated: 02/08/2021.

                    Heard, learned counsel for the parties.

Learned counsel for the appellants has submits that claimants namely, 1.Smt. Shobha Devi, 2.Minor, Sachin Kumar Singh, 3.Minor, Santosh Kumar Singh, 4.Sri Tulshi Narayan Singh and 5.Smt. Dewanti Devi have preferred the instant Miscellaneous Appeal for enhancement of the award dated 08.08.2017 passed by learned District Judge VIII-cum- M.A.C.T., Dhanbad, in Title (M.V.) Claim Case No.320 of 2014, whereby the claimants have been awarded compensation to the tune of Rs.6,07,500/- along with interest @ 6% per annum from the date of filing of the claim application i.e. 13.11.2014 till its realization, which shall be indemnified by the IIFCO TOKIO General Insurance Company Limited.

Learned counsel for the appellants, Mr. Birendra Kumar has assailed the impugned award on the ground, that income of the deceased has not been considered by the learned Tribunal, in view of Exhibit-1 i.e. the salary certificate issued by Manoj Rajak (P.W.-4), proprietor, Manoj Motor Garage. Further future prospect of the deceased has not been considered and under the conventional head instead of Rs.70,000/- less amount has been paid, which may be enhanced and the interest may be awarded @ 7.5% from the date of filing of the claim application.

Learned counsel for the appellants has further submitted that there is delay of 52 days in preferring the appeal and for condonation of the same, I.A. No.665 of 2020 has been filed.

Learned counsel for the respondent no.1-, Mr. Ashutosh Anand

has submitted that from perusal of the paras 13 and 14 of the impugned award, it appears that the learned Tribunal has rightly not considered the evidence adduced by P.W.-4 (Manoj Rajak), who has issued salary certificate i.e. Exhibit-1 as inherent lacuna has been found in evidence of P.W.4, as such, learned Tribunal has considered the income of the deceased to be Rs.4,500/- per month.

Learned counsel for the respondent no.1/Insurance Company- has further submitted that even considering the minimum wages notified by the Government for the year, 2011-12, the minimum wages of unskilled labourer was Rs.127/-, semi-skilled was Rs.134/-, skilled was Rs.163 and highly skilled was Rs.190/- and the deceased- Chandar Kishore Singh cannot be considered to be highly skilled, it can only be considered with regard to Manoj Rajak, who is proprietor of the garage, as such, considering the deceased- Chandar Kishore Singh to be a skilled labourer and his income as Rs.163/- per day, which is to be multiplied with 26 as four Sundays in a month are not working days.

Accordingly, the income of the deceased comes to (Rs.163x 26) Rs.4,238/- whereas the learned Tribunal has considered the income to be Rs.4,500/-.

So far future prospect is concerned, learned counsel for the respondent no.1- has further submitted that 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 59.4, the deceased is entitled for 40% future prospect as he died below the age of 40 years.

So far under the conventional head is concerned, it appears that less amount has been paid contrary to the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) 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 no.1- has assailed the impugned award without preferring an appeal with regard to the age

of the victim and placed para 14 of the impugned judgment.

Since the Insurance Company has not preferred the appeal against the said finding, this Court is not allowing the learned counsel for the Insurance Company to agitate the same. Accordingly, this issue raised by the Insurance Company is hereby negated, as no appeal has been preferred.

After hearing the learned counsel for the parties and on the basis of the material available on record since in a benevolent legislation, the claimants have preferred this appeal after delay of 52 days, as such, in view of no counter-affidavit filed by the Insurance Company, the same is hereby condoned.

I.A. No.665 of 2020 is hereby allowed.

After hearing the learned counsel for the parties, it appears that in a motor accident occurred on 17.08.2011 at about 12.30 P.M., deceased- Chandar Kishore Singh, who was a motorcycle mechanic was dashed by a Bajaj Pulsar motorcycle bearing registration No.JH- 10AA-1567 and the injured was brought to RIMS, Ranchi and he succumbed to the injury on 25.08.2011. It appears that with regard to the Insurance Coverage of the offending vehicle bearing registration No.JH-10AA-1567, there is no controversy before this Court. The only controversy is with regard to the assessment of the income of the deceased and non-payment of the future prospect, less amount paid under the conventional head and the interest has been paid in lower side i.e. @ 6%, which ought to have been @ 7.5%, 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 and in view of Section 171 of the MV Act.

From perusal of the record, it appears that though the claimants have brought Exhibit-1, salary certificate issued by Manoj Rajak, (P.W.-4), Proprietor, Manoj Motor Garage, but learned Tribunal has not considered the same to be valid, which is apparent from para 13 of the impugned award.

This Court computes the income of the deceased on the basis of notification issued by the Government for minimum wages for the year, 2011-

12. The deceased was a skilled labourer under contractor, Manoj Rajak for

which minimum wages was Rs.163/- per day, for 26 working days in a month as four days are Sundays, (Rs.163/- x 26 = Rs.4238/-) then the income, which has been assessed by the learned Tribunal to be Rs.4,500/- is just and fair compensation, as such, this Court is not inclined to interfere with the same as the minimum wages is never the exact amount, which a person is earning and minimum wages guarantees the minimum amount of earning that a person can earn. Since the learned Tribunal has considered Rs.4,500/- per month, as such, there is no reason for this Court to enhance the same.

Further deceased died at the age of 32 years, as held by the learned Tribunal and since no appeal has been preferred by the Insurance Company, this Court is bound to accept that finding, which has already been given by the learned Tribunal, as such, the age of the deceased has to be considered as 32 years.

Accordingly, the monthly income of the deceased to be Rs.4,500/-. The new calculation chart would be as follows :-

 Annual Income                            Rs.54,000/- (Rs.4500/- x 12)
 1/4th deduction towards personal and Rs.54,000/-          minus   Rs.13,500/-   =

living expenses as deceased had five Rs.40,500/- dependents [Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 30] Multiplier as 16 as deceased was in the Rs.40,500/- x 16 = Rs.6,48,000/- age group of 31-35 [Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 42] Future Prospect @ 40% [National Rs.6,48,000/- + Rs.6,48,000/- x 40% Insurance Company Ltd. vs. Pranay [Rs.2,59,200/-] = Rs.9,07,200/-

Sethi, reported in (2017) 16 SCC 680 at para 59.4] Conventional Head [National Rs.70,000/-

Insurance 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.9,07,200/- + Rs.70,000/- = Rs.9,77,200/-.

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.9,77,200/- 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 under Section 140 of the MV Act and pursuant to the award by the Insurance Company shall be deducted from the same and the balance amount shall be paid by the Insurance Company within a reasonable time as the accident is of dated 17.08.2011.

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

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