Bibi Murmu @ Bitti Murmu vs Jai Sankar Das
2021 Latest Caselaw 2939 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                    (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 533 of 2019
                                 ......

      Bibi Murmu @ Bitti Murmu                          .... ..... Appellant

                                  Versus
      1.Jai Sankar Das

2.The Branch Manager, Bajaj Allianz General Insurance Co. Ltd.

3.Sanatan Hansda

4.Dharma Hansda @ Dharmal Hansda

5.Kartik Hansda

6.Hopanmay Hansda ......Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) For the Appellant : Md. Yasir Arafat, Advocate For the Respondents no.2 : Mr. S.J. Roy, Advocate

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03/Dated: 17/08/2021.

Heard, learned counsel for the parties.

Learned counsel for the appellant, Md, Yasir Arafat has submitted that appellant/claimant, Bibi Murmu @ Bitti Murmu has preferred this Miscellaneous appeal for enhancement of the award dated 31.07.2019, passed by learned District Judge-I-cum- MACT, Pakur, in Motor Vehicle Accident Claim Case No.21 of 2017 whereby the learned Tribunal has awarded compensation to the tune of Rs.4,06,000/- along with interest @ 7% per annum from the date of filing of claim application till the actual indemnifying the award.

Learned counsel for the appellant, Md, Yasir Arafat has assailed the impugned award on the ground that deceased- Saheb Hansda lost his life in a motor accident by offending vehicle, Tempo bearing registration No.JH16B/3812, which was duly insured before the Bajaj Allianz General Insurance Co. Ltd. vide Policy No.OG-15- 2418-1803-00000286 for the period from 11.09.2014 to 10.09.2015 and the accident took place on 13.05.2015.

The learned Tribunal has wrongly considered the age of the deceased as 61-65 years contrary to the assessment made in the post-mortem report by the Doctor in absence of any documentary evidence brought on record but without assigning any reason. The learned Tribunal has come to a finding about age of the deceased considering the age of O.P. Nos.3, 4, 5 and 6, who have not disclosed the age of deceased is perverse and wrong appreciation of the facts.

Learned counsel for the appellants has further submitted that there is no documentary evidence with regard to the age of the deceased, but considering the assessment made by the Medical Officer in the post-mortem report, which has been brought on record as Exhibit-4, wherein age of the deceased has been

considered by the Doctor to be 44 years, as such, this Court considering the same may enhance the compensation.

Learned counsel for the appellant has further submitted that income of the deceased, who was a mason has been claimed to be Rs.15,000/- per month, but the learned Tribunal has considered the same to be Rs.6,000/- per month.

Learned counsel for the appellant has further submitted, that the future prospect of the deceased has not been granted in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 at para 59.4 and interest has been granted @ 7% 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) 12 SCC 208 as well as in view of Section 171 of the MV Act.

Learned counsel for the respondent no.2-Bajaj Allianz General Insurance Co. Ltd., Mr. S.J. Roy has submitted that income of the deceased has been rightly considered by the learned Tribunal for a person, who lost his life on 13.05.2015 to be Rs.6,000/- per month and the age has been rightly considered by the learned Tribunal considering the age of O.P. Nos.3, 4 , 5 and 6, who have not disclosed the age, as such, this Court may not interfere with such finding recorded by the learned Tribunal.

Learned counsel for the respondent no.2-Bajaj Allianz General Insurance Co. Ltd., Mr. S.J. Roy has further submitted that since the age of the victim has been considered to be more than 60 years, as such, the learned Tribunal has rightly not considered the future prospect of the deceased.

So far the interest is concerned, learned counsel for the respondent-Insurance Company has further submitted that consistent view has been taken by this Court with regard to interest to the tune of 7.5%, but the learned Tribunal has granted interest @ 7%, as such, this Court may not interfere with the same.

Considering the rival submissions of the parties, looking into the facts and circumstances of the case, the deceased- Saheb Hansda lost his life in a motor accident on 13.05.2015 by offending vehicle, tempo bearing registration no.JH16B/3812, which was duly insured before the Bajaj Allianz Insurance Company during the period of accident. The deceased left behind five dependents and the deceased was a mason. As per the claim application, the claimant has claimed his income to be Rs.500/- per day, as such, the income of the deceased thus comes to Rs.15,000/- per month, but the learned Tribunal has considered the same to be Rs.6,000/-. The Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC has considered the income of a carpenter in absence of any documentary evidence to be Rs.5,000/- per month for an incident

dated 02.01.2001. Accordingly, for the accident, which took place on 13.05.2015, the income of the deceased, which has been considered to be Rs.6,000/- is not a just, fair and reasonable. This Court considers the income of the deceased to be Rs.6,500/- per month as the deceased was working as Mason.

So far the age of the victim is concerned, no reason has been assigned by the learned Tribunal for not considering the age of the deceased assessed by the Doctor in the post-mortem report nor any explanation has been given by the learned Tribunal for considering the age of the victim to be 61 to 65 years, contrary to the assessment made by the Doctor in the post-mortem report regarding age of the deceased as 44 years. The learned Tribunal has also not disclosed the age of O.P. Nos. 3, 4, 5 and 6 for coming to the assessment of age of the deceased to be 61-65 years. Accordingly, this Court considers that such finding recorded by the learned Tribunal is not proper consideration. The Tribunal ought to have considered the age of the deceased assessed by the Doctor in the post-mortem report in absence of any documentary evidence, otherwise the learned Tribunal ought to have given a satisfactory reasoning for considering the age of the deceased. Accordingly, this Court considers the age of the victim to be 44 years relying upon the post-mortem report.

Now, the new calculation chart would be as follows :-

 Annual Income                            Rs.78,000/- (Rs.65,00/- x 12)
    th

1/4 deduction towards personal and Rs.78,000/- minus Rs.19,500/- = Rs.58,500/- living expenses as deceased had five dependents [Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 30] Multiplier as 14 as deceased was in the Rs.58,500/- x 14 = Rs.8,19,000/- age group of 41-45 [Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 42] Future Prospect @ 25% [National Rs.8,19,000/- + Rs.2,04,750/- = Rs.10,23,750/- Insurance Company Ltd. vs. Pranay 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.10,23,750/- + Rs.70,000/- = Rs.10,93,750/-.

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.10,93,750/-

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) 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 passed 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 13.05.2015. The Insurance Company shall deduct/adjust the earlier interest granted to the claimants while calculating the same @ 7.5%.

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

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