Jharkhand High Court
Arti Devi vs The New India Assurance Company ... on 5 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 74 of 2017
1. Arti Devi
2. Vivek Kumar Saw
3. Bhuttu Saw
4. Smt. Amiya Devi .... .... Appellant(s).
Versus
1. The New India Assurance Company Ltd. through Divisional Manager,
Dhanbad
2. Bhupinder Singh .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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For the Appellant(S) : Mr. Birendra Kumar, Advocate
For the Insurance Co. : Mr. G.C. Jha, Advocate
For the Respondent(s) : Mr. Manish Kumar, Advocate
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06/05.08.2021
Heard the counsel for the parties.
2. In this appeal, the appellants seek enhancement of the amount of
compensation as awarded to them vide award dated 19.12.2016 passed by the
District Judge-III Cum MACT, Dhanbad in Title (MV) Suit No. 115 of 2013.
3. The case arises out of motor vehicle accident, which had occurred on
31.01.2011, while the deceased Vikash Saw, being driver was going to Gomia
from Bishungarh by Mahindra Commander Jeep bearing Registration No. BR 13P
0920 with passengers. When they reached near Jamanijara More (crossing) a
Truck bearing Registration No. HR 38J 9154, all of a sudden, dashed the
commander Jeep, as a result of which the right hand of the deceased was crushed
due to which the Jeep got unbalanced and dashed in a hotel as a result of which
he along with other passengers died on the spot and other sustained injuries. This
incident had taken place due to rash and negligent driving of the driver of the
offending truck.
4. The owner of the truck appeared and filed his written statement and
contended that the offending truck was authorized to Santosh Kumar and he was
the Power of Attorney holder and all the documents of the offending truck are in
the name of Santosh Singh. He further contended that claim amount should be
released by the Insurance Co. because all the documents of the vehicle were valid
on the date of the accident, hence, he is not liable to pay any compensation to the
claimants.
5. The Insurance Company appeared and filed their written statement stating
therein that the suit is not maintainable as there is no cause of action for the suit.
They admit that vehicle bearing Registration No. HR 38J 9154 was insured with
New India Assurance Co. Ltd. They stated that until and unless the documents
are produced by the claimants, it will be presumed that the vehicle was being
driven without any valid and proper papers, thus, there is breach of the terms of
policy, so the company is not liable to indemnify the owner. They denied that
driver of the offending vehicle had a valid and effective driving licence at the time
of accident. They also denied that deceased was in private service as LMV Driver,
having monthly income of Rs. 7,500/- per month.
6. After hearing both the side and taking into consideration all oral and
documentary evidences the Tribunal has awarded compensation to the tune of
Rs.4,29,000/- along with interest @ 6% P.A from the date of filing till its
realisation.
7. Counsel appearing on behalf of the appellants submits that the income of
the deceased was wrongly assessed by the tribunal as Rs.100/- per day, whereas,
it should have been Rs.250/- per day. Further no compensation on account of
"future prospect" has been granted by the Tribunal. He submits that in terms of
the judgment of the Hon'ble Supreme Court in the case of National Insurance
Company Limited Vrs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the
appellants are entitled for enhancement of compensation on account of future
prospect. He submits that on the conventional head also, only a sum of Rs.
20,000/- has been awarded, which is much on the lower side and not as per the
judgment of the Hon'ble Supreme Court in the case of National Insurance
Company Limited (Supra).The appellants also claimed interest at the rate of 12%
per annum. On these grounds they pray for enhancement.
8. Counsel for the insurance company submits that the tribunal after
considering all the aspects has taken the monthly income of the deceased as Rs.
100/- per day. He submits that just compensation has been granted by the
Tribunal in this case.
9. This is an appeal by the appellants-claimants, claiming for enhancement
of compensation. From the submission of the parties, I find that Insurance
Company has not filed any appeal against this award.
10. After hearing the parties and after going through the record, I find that the
deceased died in a motor vehicle accident involving a truck bearing Registration
No. HR 38J 9154 which is not in dispute. It is also not in dispute that the vehicle
was registered with New India Assurance Company Limited. The dependency is
also not disputed. The age of the deceased is also not in dispute. Since all these
facts are admitted, I am not dealing with the admitted facts in details in this appeal,
I am only dealing with the dispute which was raised by the counsel for the
appellants.
11. On the point of income of the deceased, I find that the claimants have
stated that the income of the deceased is Rs. 7,500/- per month. The claimants
have not put forth any evidence in support of their claim thus the Tribunal has
assessed the income as Rs.3000/- per month notionally. In my view the income of
the deceased as assessed by the tribunal is much on the lower side. Admittedly the
deceased was a driver and was earning by driving vehicle. The salary of a driver
in 2011 cannot be Rs. 3000/- per month. Thus the income of the deceased is taken
to be Rs. 5000/- per month.
12. On the conventional head only Rs. 20,000/- has been awarded by the
Tribunal, but, considering the judgment of the Supreme Court in the case of
Pranay Sethi (Supra) and keeping in view the time of accident, this Court feels
that Rs. 70,000/- would be the appropriate amount to be awarded under the
conventional heads .
13. So far as "future prospects" is concerned, I find that no future prospect
has been awarded by the Tribunal. In the case of Pranay Sethi (Supra) the
Hon'ble Supreme Court has held that the compensation on account of increase of
income, taking into consider future prospect, should be considered.
As per the said judgment, if the deceased was below the age of 40 years, and he
was self-employed 40% enhancement has to be granted on account of "future
prospects". I therefore hold that the claimants are entitled to get an enhancement
of 40% on account future prospects.
14. Thus considering what has been held above, the just and fair
compensation would be calculated as under:-
Rs. 5000/- x 12 x 17(multiplier) = Rs.10,20,000/-
Rs. 10,20,000/- - 1/4rd (Dependency) = Rs. 7,65,000/-
Rs. 7,65,000/- + 40% (future prospects) = Rs. 10,71,000/-
Rs. 10,71,000/- + 70,000/-( Conventional Head) = Rs. 11,41,000/-
15. As per this Court amount of Rs. 11,41,000/- is the just compensation
which the appellants are entitled to receive. In this case the Tribunal has awarded
Rs.4,79,000/- as compensation. Thus the appellants are entitled to receive balance
amount of Rs. 6,62,000/-. The balance amount should be paid within a period of
two months. This balance amount will carry interest @ 6% p.a from the date of
the award of the Tribunal till the said payment is made.
16. Accordingly, the instant appeal stands allowed to the aforesaid extent.
(ANANDA SEN , J)
anjali/ C.P 3
