Jharkhand High Court
Firoza Khatoon vs Pradeep Kumar Sharma on 25 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 272 of 2019
......
1.Firoza Khatoon
2.Md. Shaban
3.Safina Khatoon
4.Hasina Khatoon
5.Md. Rayuf
6.Md. Yusuf .... ..... Appellants
Versus
1.Pradeep Kumar Sharma
2.Divisional Manager, National Insurance Co. Ltd.
3.Upendra Kumar ......Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
For the Appellants : Mr. Sudhir Kumar Sharma, Advocate
For the Respondent no.2 : Mr. Amresh Kumar, Advocate
-----
05/Dated: 25/08/2021.
Heard, learned counsel for the appellants, Mr. Sudhir Kumar Sharma and
learned counsel for the respondent no.2, Mr. Amresh Kumar.
Learned counsel for the appellants has submitted that claimants, namely,
1.Firoza Khatoon, 2.Md. Shaban, 3.Safina Khatoon, 4.Hasina Khatoon, 5.Md.
Rayuf and 6.Md. Yusuf have preferred this appeal for enhancement of the award
dated 16.03.2019, passed by learned District Judge, Presiding Officer, Motor
Vehicles Accident Claims Tribunal, Hazaribag in Motor Accident Claim Case
No.28 of 2016 whereby the claimants have been awarded compensation to the
tune of Rs.7,12,600/- along with interest @ 6% per annum from the date of
settlement of issue i.e. 16.02.2018 to be paid within 30 days, failing which the
interest shall be calculated @ 9% per annum. However, Rs.50,000/- which has
already been paid as ad-interim compensation under Section 140 of the MV Act
vide Cheque No.053507 dated 05.07.2017 credited into claimant's/applicant's
account of Bank of India, Daru Branch shall be deducted from the aforesaid
Award amount.
Learned counsel for the appellants, Mr. Sudhir Kumar Sharma has
submitted that appeal has been preferred within time by all the claimants for
enhancement of the compensation on the ground that the income of the deceased
has wrongly been considered to be Rs.4250/- per month against the claim of
Rs.7,000/- per month in absence of any documentary evidence as the deceased
was a driver, who lost his life on 22.05.2015. 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 to be Rs.5,000/- per month in absence of any documentary
evidence for an incident dated 02.01.2001 whereas the present occurrence is of dated
22.05.2015 after about more than 14 years of that occurrence, as such, income has
been computed on the lower side.
Learned counsel for the appellants has further submitted that the learned
Tribunal has wrongly not considered the minor sister and brother of the deceased to
be dependent and the interest has been awarded @ 6% per annum from the date of
settlement of issue contrary to the judgment passed by the Apex Court in the case of
Dharmpal & Sons Vs. U.P. State Road Transport Corporation, reported in (2008)
12 SCC 208 and Section 171 of the MV Act whereby it ought to have been @ 7.5%
per annum from the date of filing of the claim application .
Learned counsel for the respondent no.2-National Insurance Company
Limited, Mr. Amaresh Kumar has opposed the prayer and submitted that entire
amount awarded by the learned Tribunal has already been satisfied to the claimants.
Learned counsel for the respondent no.2 has further submitted that the learned
Tribunal has considered just and fair compensation, considering the income of the
deceased to be Rs.4250/- in absence of any documentary evidence, as such, this Court
may not interfere with the same.
Learned counsel for the respondent no.2 has further submitted that no
evidence has been brought on record that minor sisters and brothers of the deceased
were dependents upon the income of the deceased, as such, learned Tribunal has
rightly considered parents of the deceased to be dependent and in absence of any
evidence, this Court cannot take another view, if two views are possible to be
considered by the court in view of the judgment passed by the Apex Court in the case
of Pallavan Transport Corporation Limited vs. M. Jagannathan, reported in (2002)
9 SCC 728.
Learned counsel for the respondent no.2 has further submitted that interest has
been rightly awarded from 16.02.2018 i.e. from the date of settlement of issue as it
appears from the lower court records of Motor Accident Claim Case No.28 of 2016
that claim application under Section 140 and 166 of the MV Act was filed on
22.02.2016 and on 25.04.2016 the claim application was admitted. The notice was
issued upon Opp. Parties on 03.05.2016 and the service report was received on
11.05.2016, but the claimants again filed an amendment application on 13.09.2016.
Further, petition under Section 140 of the MV Act was pressed on 08.03.2017,
which was heard and allowed on 08.06.2017 by directing the Insurance Company to
pay Rs.50,000/- under Section 140 MV Act, which was deposited on 18.07.2017 and
the same was released on 02.08.2017 in favour of the claimants and thus issues were
settled on 16.02.2018 because of the delay caused by the claimants, as such, learned
Tribunal has rightly granted the interest from the date of settlement of issue.
After hearing, learned counsel for the parties and on perusal of the impugned
award, it appears that the learned Tribunal has considered less income of the deceased
in absence of any documentary evidence, as the Apex Court in the case of Chameli
Devi (Supra) has considered the income of carpenter, who lost his life on 02.01.2001
to be Rs.5,000/-, as such, for an occurrence/accident dated 22.05.2015, the income of
the driver cannot be less than Rs.6,500/- per month.
Accordingly, this Court considers the income of the deceased to be Rs.6,500/-
per month, in absence of any documentary evidence for just and fair compensation.
So far number of dependents are concerned, in absence of any evidence
brought on record by the claimants, this Court cannot take another view of the matter
when two views are possible and one view has been taken by the learned Tribunal in
view of the judgment passed by the Apex Court in the case of Pallavan Transport
Corporation Limited vs. M. Jagannathan, reported in (2002) 9 SCC 728.
Accordingly, this issue is negated.
So far interest is concerned, the interest shall be @ 7.5% per annum, in view of
judgment passed by the Apex Court in the case of Dharampal (Supra), but from the
date of settlement of issue, which the learned Tribunal had correctly done as apparent
from the ordersheet brought on record, as such, this Court is not inclined to interfere
with the date of grant of interest from the date of settlement of issue i.e. 16.02.2018.
The new calculation chart would be as follows :-
Annual Income Rs.78,000/- (Rs.6500/- x 12)
Future Prospect @ 40% as the deceased Rs.78,000/- + Rs.31,200/-
was below 40 years [National Insurance = Rs.1,09,200/-
Company Ltd. vs. Pranay Sethi, reported
in (2017) 16 SCC 680 at para 59.4]
1/2 deduction towards personal and living Rs.1,09,200/- minus Rs.54,600/- =
expenses [Sarla Verma (Smt) & others vs. Rs.54,600/-
Delhi Transport Corporation & another,
reported in (2009) 6 SCC 121 at para 30]
Multiplier as 18 as deceased was in the Rs.54,600/- x 18 = Rs.9,82,800/-
age group of 21-25 [Sarla Verma (Smt) &
others vs. Delhi Transport Corporation
& another, reported in (2009) 6 SCC 121
at para 42]
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.9,82,800/- + Rs.70,000/- =
Rs.10,52,800/-.
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.10,52,800/-
along with interest @ 7.5% from the date of settlement of issue i.e. 16.02.2018 till its
realization, in view of the judgment passed by the Apex Court in the case of
Dharmpal & 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 by the learned Tribunal 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 22.05.2015.
Accordingly, the instant Misc. Appeal stands allowed with aforesaid
modification.
Let LCR be sent down to the court below at once.
(Kailash Prasad Deo, J.)
sandeep/R.S
