Sharda Devi & Others vs Arun Kumar Prasad & Another
2021 Latest Caselaw 2774 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 296 of 2018
                         ........

Sharda Devi & Others                 ....        ..... Appellants
                             Versus
Arun Kumar Prasad & Another         ....         ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellants : Md. Zaid Ahmed, Advocate. For the Respondent No.2 : Mr. Ashutosh Anand, Advocate.

........

05/09.08.2021.

Heard, learned counsel for the appellants, Md. Zaid Ahmed and learned counsel for the Shri Ram General Insurance Company Limited, Mr. Ashutosh Anand, who has appeared pursuant to the notice dated 13.04.2021.

The present appeal has been preferred by the claimants namely, (1) Sharda Devi, wife of Raj Kumar Verma, (2) Raj Kumar Verma, son of Late Mohan Lal Verma, (3) Jyoti Kumari, daughter of Raj Kumar Verma and (4) Abhimanyu Kumar Verma, son of Raj Kumar Verma, for enhancement of the award dated 03.01.2018 passed by District Judge-III-cum-M.A.C.T., Jamshedpur in Motor Accident Claim Case No. 145/2016, whereby claimants have been awarded compensation to the tune of Rs. 4,38,000/- along with interest @ 6% per annum from the date of filing of the claim application till payment to be paid within 30 days from the date of award and if the amount under Section 140 of the Motor Vehicles Act has been paid to the claimants that shall be deducted from the awarded amount.

Learned counsel for the appellants has submitted that the deceased Rabishankar Verma was aged about 28 years and he was Gym Trainer and he was earning income of Rs. 13,000/- per month, which the learned Tribunal has wrongly considered in absence of any documentary evidence as Rs. 4,000/- per month. However, learned counsel for the appellants has submitted that no contrary pleading or evidence has been brought on record by the Insurance Company to deny the fact that the deceased was earning a sum of Rs. 13,000/- per month.

Learned counsel for the appellants has further submitted that future prospect of the deceased has not been granted and under the conventional head, less amount has been paid, instead of Rs. 70,000/-, learned Tribunal has only granted Rs. 30,000/- (Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate and love and affection), contrary to the judgment passed by the Apex Court passed in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (Para-59.4 & Para-59.8).

Learned counsel for the appellants has further submitted that apart from that, interest has also been paid on the lower side i.e. @ 6% from the date of filing of the claim application, which ought to have been @ 7.5% in view of the judgment passed by the Apex Court passed in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12) SCC 208.

Learned counsel for the appellants has further submitted that though the documents with regard to income has not been produced, but the Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC) has considered the income of the deceased, who was Carpenter and lost his life in a motor vehicle accident on 02.01.2001, in absence of documentary evidence, to be Rs. 5,000/-, as such for an accident which took place on 24.12.2015, the income of the deceased has wrongly been considered as Rs. 4,000/- per month, as in modern days, a large number of Gym are open in every mohalla of the City.

Learned counsel for the appellants has thus submitted that on merits, the appellants have a very good case, as such, this Court may condone the delay of 30 days in preferring the appeal and for condonation of the same, I.A. No. 11364/2019 has been filed .

Learned counsel for the respondent no. 2, Mr. Ashutosh Anand, has submitted that so far age of the deceased is concerned, in absence of any documents like Aadhar Card, Voter ID Card, Ration Card, Educational Certificate, Driving Licence, PAN Card, the learned Tribunal was compelled to accept the assessment made by

the Doctor during post-mortem examination, in para-10 at internal page-8 of the impugned award, as 28 years, as such, in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121, the learned Tribunal has considered that the deceased fall in the age group of 26-30 years, as such, multiplier of 17 is applicable.

So far income of the deceased is concerned, learned counsel for the respondent no. 2 has further submitted that the deceased Rabishankar Verma was doing job of Trainer in the Gym of Claimant No. 2 Raj Kumar Verma, who is father of the deceased, but no documentary evidence has been brought on record like income tax return, bank pass book, pay register and as such, in absence of any documentary evidence, the learned Tribunal has rightly considered the income of the deceased as Rs. 4000/- per month.

Learned counsel for the respondent no. 2 has further submitted that so far future prospect is concerned, the learned Tribunal has not considered the same in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra), but so far the consortium is concerned, the learned Tribunal has rightly not granted the consortium of Rs. 40,000/-, as deceased was a Bachelor. So far the interest is concerned, learned counsel for the respondent no. 2 has submitted that interest has been awarded by the learned Tribunal @6% per annum which may not be enhanced, as the Insurance Company has already indemnified / satisfied the award.

Learned counsel for the respondent no. 2 has further submitted that the delay of 30 days in preferring the appeal may not be condoned by this Court.

Considering the rival submissions of the parties and looking into the facts and circumstances, since it is benevolent legislation, this Court is inclined to condone the delay of 30 days in preferring this appeal, as prayed in I.A. No. 11364/2019.

Accordingly, I.A. No. 11364/2019 is hereby allowed.

So far the offending vehicle is concerned, the same is already insured before the Shri Ram General Insurance Company Limited and there is no dispute with regard to the same. The deceased lost his life in a motor vehicle accident at the age of 28 years and was a Bachelor. It is also not in dispute.

So far income of the deceased is concerned, the learned Tribunal has considered Rs. 4,000/- per month, against the claim of Rs. 13,000/- per month, in absence of any documentary evidence and also in absence of any contrary evidence brought on record by the Insurance Company, this Court, in view of the judgment passed by the Apex Court in the case of Chameli Devi (Supra), which was with respect to a Carpenter, who lost his life on 02.01.2001, has considered his income to be Rs. 5,000/- per month, has considered that the deceased, who was Gym Instructor, had not less income than Rs. 7,500/- per month as it is true that in modern days, every mohalla of town, big or small, there is Gym for the people and people, who are going to Gym are well off in the society. Accordingly, this Court consider that the income of the deceased to be Rs. 7,500/- per month, as deceased lost his life on 24.12.2015.

So far future prospect is concerned, the same will be @ 40% in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.4) .

So far the amount under the conventional head is concerned, the amount should have been Rs. 70,000/- in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.8) i.e. Rs. 15,000/- as loss of estate, Rs. 40,000/- as loss of consortium (filial) and Rs. 15,000/- as funeral expenses and as such, this amount should be Rs. 70,000/- instead of Rs. 30,000/- which has been granted by learned Tribunal and interest should be consistent as there is no reason given by the learned Tribunal, as such, it ought to have been @ 7.5% per annum in view of judgment passed by the Apex Court in the case of Dharampal and Sons (Supra) from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act.

Accordingly, the fresh computation of compensation is as follows:-

Income                             Rs. 7,500/- per month
Annual Income                      Rs. 7,500/- x 12 = Rs. 90,000/-
40% future prospect              Rs. 90,000/- + Rs. 36,000/-

Pranay Sethi (Para-59.4) (Supra) = Rs. 1,26,000/- 1/2nd deduction towards personal Rs. 1,26,000/- x 1/2 = Rs. 63,000/-

and living expenses
Sarla Verma (Smt.) (Supra)
(Para-30)
Total Income                       Rs. 1,26,000/- - Rs. 63,000/-
                                   = Rs. 63,000/-

Multiplier of 17 (as the deceased Rs. 63,000/- x 17 = Rs. 10,71,000/- was in the age group of 26-30 years) Sarla Verma (Para-42) (Supra) Conventional Head Rs. 70,000/- i.e. Rs. 15,000/- as loss of Pranay Sethi (Para-59.8) estate, Rs. 40,000/- as loss of consortium and Rs. 15,000/- as funeral expenses.

Total Compensation Amount Rs. 10,71,000/- + Rs. 70,000/-

= Rs. 11,41,000/-

The enhanced amount of Rs. 11,41,000/- shall be paid to the claimants by the Insurance Company along with interest @ 7.5% per annum from the date of filing of claim application.

However, the amount which has already been paid / indemnified under Section 140 of the Motor Vehicles Act shall be deducted from the enhanced amount and the amount, which has been paid, pursuant to the award as stated by learned counsel for the respondent no. 2 to the tune of Rs. 4,38,000/- along with interest @ 6% per annum from the date of filing of claim application, shall also be deducted from the aforesaid amount of Rs.11,41,000/-, which shall be paid along with interest @ 7.5% per annum from the date of filing of the claim application. The balance amount shall be paid to the claimants within a reasonable time, as the accident is of dated 24.12.2015.

Accordingly, the present miscellaneous appeal is allowed.

(Kailash Prasad Deo, J.) Sunil/-