Jharkhand High Court
Soni Devi And Ors vs Kapoor Devi And Ors on 18 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 482 of 2018
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Soni Devi and Ors. ....... Appellants
Versus
Kapoor Devi and Ors. ......Respondents
..........
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
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For the Appellants : Mr. V.K. Sharma, Advocate
For the Respondents No.1 : Mr. Pradeep Kr. Prasad , Advocate
For the Respondent No.2 : Mr. S.J. Roy, Advocate
04/Dated: 18/08/2021.
Heard, learned counsel for the appellants, Mr. V.K. Sharma, Mr. P.K. Prasad
learned counsel for respondent no.1 and Mr. S.J. Roy, learned counsel for
respondent no.2.
The appellants namely (1) Soni Devi w/o late Sanjeet Kuamr @ Sanjeet
Kumar Srivastava (2) Most. Suman Devi w/o late Saryu Lal and (3) Vivek Kumar
(minor) S/o late Sanjeet Kuamr @ Sanjeet Kumar Srivastava, have preferred this
appeal for enhancement of award dated 17th day of March, 2018 passed by the
learned District Judge-I-cum-M.A.C.T. Chatra in MACT Case No. 12 of 2015,
whereby claimants have been awarded compensation to the tune of Rs.7,34,840/-
along with interest @ 9% per annum from 02.07.2015 the date of appearance of
opposite parties to be paid within 45 days, failing which the penal interest @ 12%
per annum from 02.07.2015 shall be realized by due process of law.
Learned counsel for the appellants Mr. Vijay Kumar Sharma has submitted that
admittedly the offending vehicle Haiwa (TIPPER) bearing registration No.JH-
02U-5860 was duly insured before the Bajaj Allianz General Insurance Co. Ltd.
and there is no violation of terms and conditions of Insurance Policy No. OG-15-
242-1803-00000338, which was valid from 22.11.2014 to midnight of 21.11.2015,
as the accident took place on 21.12.2014.
Learned counsel for the appellants has further submitted that the deceased was
coming on his white colour scooty from Hazaribagh to Tandwa, which was dashed
by the vehicle Haiwa (TIPPER) bearing registration No.JH-02U-5860. The injured
was brought to hospital where he died in course of treatment. He lost his life at the
age of 27 years while he was owning a shop of grocery and earning a monthly
income of Rs.15,000/-. The Tribunal has wrongly considered the income of
the deceased as Rs.4,500/- per month, in absence of any documentary
evidence, though the Apex Court in the case of Chameli Devi Vs. Jivrail Mian,
reported in 2019 (4) SCC TAC 724 SC, has considered the income of a carpenter,
who lost his life on 02.01.2001 to be Rs.5,000/- per month and in the present case,
the occurrence is dated 21.12.2014 and the income for the owner of a grocery
shop has been considered by the learned Tribunal on the lower side, which is
contrary to the claim made by the claimants of Rs. 15,000/- per month.
Learned counsel for the appellants has further submitted that future prospect
has not been considered by the learned Tribunal, in view of the judgment passed
by the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi
reported in (2017) 16 SCC 680 (Paragraph 59.4) which ought to have been @
40%, as the deceased died below the age of 40 years.
So far interest is concerned, the same has been awarded @ 9% per annum from
the date of appearance of the opposite party i.e. 02.07.2015 without giving any
reason which is contrary to 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 and Section 171 of the M.V. Act, which ought to have been
@7.5% from the date of filing of the claim application.
Learned counsel has further submitted that there is delay of 57 days in
preferring the appeal and for condonation of the same, I.A. No.7381/2018 has
been preferred.
Mr. Pradip Kumar Prasad, learned counsel appearing for owner of the
offending vehicle has submitted that the dispute is between the Insurance
Company and the claimants, as vehicle was duly insured and the liability has been
fixed upon the Bajaj Allianz General Insurance Company Limited, who has not
preferred any appeal against the impugned award.
Mr. S.J. Roy, learned counsel appearing for the Bajaj Allianz General
Insurance Company Limited has submitted that income has been rightly
considered by the learned Tribunal and under the conventional head excess
amount has been paid, contrary to the judgment passed by the Apex Court in the
case of Pranay Sethi (supra). Apart from that, the interest has been awarded @
9% per annum, which ought to have been @ 7.5% per annum 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.
Learned counsel for the Insurance Company has also opposed the limitation
petition.
Considering the rival submission of the parties and looking into the facts and
circumstances of the case, this Court is inclined to condone the delay of 57 days in
preferring the appeal by the claimants as bread earner of the family lost his life in
an accident, as such, I.A. No.7381/2018 is hereby allowed.
So far the compensation is concerned, it appears that in the case of Chameli
Devi (supra), the Apex Court has considered the income of daily wage earner like
carpenter to be Rs. 5,000/- per month, who died on 02.01.2001 whereas the
present case relates to deceased who was a owner of grocery shop and his income
has been considered as Rs. 4,500/- per month for the accident dated 21.12.2014
which is not just and fair compensation, as such, this Court in absence of any
documentary evidence, considered it to be Rs. 6,500/- per month. The deceased
left behind three persons as dependents and the learned Tribunal has applied the
unit principle by considering each dependent as 2 units for the purpose of personal
deduction. The learned Tribunal passed the award on 17 th of March, 2018 while by
that time the Constitution Bench of Apex Court has passed the judgment in the
case of Pranay Sethi (supra), as such, this Court consider that in view of the
judgment passed in Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation &
Anr., reported in (2009) 6 SCC 121 which has been reiterated in the judgment
passed by Constitutional Bench in the case of Pranay Sethi (Supra), the
dependents were two to three, as such, 1/3rd deduction is applicable in view of
judgment passed by Apex Court in case of Smt. Sarla Verma (supra), paragraph-
30.
So far, multiplier is concerned, the deceased falls in the category of 26 to 30
years, as he was aged about 30 years at the time of his death, as such, multiplier of
17 is applicable in view of judgment passed by Apex Court in case of Smt. Sarla
Verma (supra), paragraph-42.
So far, future prospect is concerned, the deceased was self-employed and died
at the age of 30 years which is below 40 years, as such, dependents are entitled for
40% of the future prospect in view of the judgment passed by the Apex Court in
the case of Pranay Sethi (supra) Paragraph 59.4.
So far, under the conventional head is concerned, it appears that excess amount
has been paid contrary to the judgment passed by the Apex Court in the case of
Pranay Sethi (supra) Paragraph 59.8 i.e. loss of estate Rs. 15,000/-, loss of
funeral expenses Rs.15,000/- and loss of consortium 40,000/-, as such, the same
shall be paid to the tune of Rs.70,000/-.
The interest has been awarded @ 9% per annum from 02.07.2015 i.e. the date
of appearance of the opposite parties and in case if award is not indemnified
within 45 days, the same shall be paid @ 12% per annum. This provision of penal
interest is not envisaged in the M.V. Act and to make it consistent, this Court is
considering that under Section 171 of the M.V. Act the interest ought to have been
paid from the date of filing of the claim application. However, the learned Tribunal
is free to fix the date of interest either from the date of institution, date of
admission, date of appearance of opposite party or date of settlement of the issue,
closure of the evidence of the claimants or date of award but there must be some
reason. In absence of any reason, this Court considered that the interest shall be
awarded on the aforesaid amount from the date of filing of the claim application
@ 7.5% per annum in view of the judgment passed in the case of Dharampal and
Sons (Supra).
Now, the new calculation chart would be as follows :-
Annual Income Rs.78,000/- (Rs.65,00/- x 12)
1/3rd deduction towards personal and Rs.78,000/- minus Rs.26,000/- = Rs.52,000/-
living expenses as deceased had three
dependents [Sarla Verma (Smt) & others
vs. Delhi Transport Corporation &
another, reported in (2009) 6 SCC 121 at
para 30]
Multiplier as 17 as deceased was in the Rs.52,000/- x 17 = Rs.8,84,000/-
age group of 26-30 [Sarla Verma (Smt)
& others vs. Delhi Transport
Corporation & another, reported in
(2009) 6 SCC 121 at para 42]
Future Prospect @ 40% [National Rs.8,84,000/-+ Rs.3,53,600/- = Rs.12,37,600/-
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.12,37,600/- + Rs.70,000/- = Rs.13,07600/-.
The aforesaid compensation amount i.e. Rs.13,07600/- shall be indemnified
with interest @ 7.5% per annum from the date of filing of the claim application.
It has been submitted by learned counsel for the Insurance Company that
pursuant to the order passed by this Court vide order dated 12.07.2019, the amount
of Rs.8,98,796 has already been deposited before the learned Tribunal which have
been disbursed in favour of the claimants after due notice and verification.
Considering the same, the amount already indemnified by the Insurance
Company under Section 140 of the M.V. Act to the tune of Rs. 50,000/- or
pursuant to the award passed by the learned Tribunal and pursuant to the order
dated 12.07.2019 passed by this Court shall be deducted and the balance amount
shall be paid to the claimants within a reasonable time as the accident is dated
21.12.2014.
Accordingly, the miscellaneous appeal is allowed.
(Kailash Prasad Deo, J.)
sandeep/tarun
