Satya Narayan Sahu vs M/S. Singhbhum Transport ...
2021 Latest Caselaw 3103 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     [Civil Miscellaneous Appellate Jurisdiction]
                          M.A. No. 427 of 2019
      1 Satya Narayan Sahu
      2.Geeta Devi                                          .... .. ...   Appellant(s)
                                    Versus
      1.M/s. Singhbhum Transport Corporation
      2.Sri Ram General Insurance Co. Ltd.                  .. ... ... Respondent(s)
                         ...........

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

      For the Appellant(s)           :Mr. Amresh Kumar, Advocate.
      For Respondent No.1           :Mr. S.L. Agarwal, Advocate
      For Respondent No.2            :Mr. Ashutosh Anand, Advocate
                         ..........
08/ 25.08.2021

Heard learned counsel for the appellants Mr. Amresh Kumar, learned counsel for the respondent No.1 Mr. S.L. Agrawal, and learned counsel for respondent No.2- Mr. Ashutosh Anand.

The claimants (1) Satya Narayan Sahu s/o late Janki Sahu, father of the deceased and (2) Geeta Devi W/o Satya Narayan Sahu, mother of the deceased have preferred this appeal for enhancement of the award dated 12.02.2018 passed by learned District Judge-III-cum-Motor Vehicles Accident Claims Tribunal, Jamshedpur, in Compensation Case No. 204 of 2015, whereby claimants have been awarded compensation to the tune of Rs.13,26,000/- with interest @ 6% per annum from the date of filing of the claim application, till its payment within 30 day however, if the amount has been paid to the claimants under Section 140 of M.V. Act to the tune of Rs.50,000/- as an ad interim compensation, the same shall be deducted.

Learned counsel for the appellants Mr. Amresh Kumar has submitted that the learned Tribunal has wrongly considered the income of the deceased contrary to the judgment passed by the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680 at Paragraph 59.3 where the income is to be considered by deducting only component of tax. The income of the deceased in view of Ext. X to Ext. X/3 is Rs.19,109/- per month, which is less than Rs.2,50,000/- per annum. The accident took place in the year 2015 the income tax was NIL up to Rs.2,50,000/-.

Learned counsel for the appellants has further submitted, that under the conventional head the learned Tribunal has not granted compensation for the loss

of consortium to the tune of Rs. 40,000/- in view of the judgment passed by the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., (Supra) at Para- 59.8.

Learned counsel for the appellants has further submitted that the interest has been awarded @ 6% per annum from the date of filing of the claim application in view of Section 171 of the M.V. Act, but it ought to have been awarded @ 7.5% 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 where the interest has been quantified by the Apex Court to the tune of 7.5% simple interest per annum.

Learned counsel for the appellants has further submitted that I.A. No.10201/2019 has been preferred for condonation of delay of 469 days in preferring the appeal.

Learned counsel appearing for Sri Ram General Insurance Company Co. Ltd., Mr. Ashutosh Anand has opposed the prayer and submitted that the entire compensation amount awarded to the tune of Rs.15,12,367/- including the interest has already been satisfied to the claimants, as such, the delay may not be condoned. Apart from that the learned Tribunal has rightly not considered Product Bonus, Special allowance and Additional Allowance, as such, this Court may not interfere with the same.

Learned counsel for the respondent-Sri Ram General Insurance Company Co. Ltd., has referred para-12 of the impugned award which is quoted hereunder:-

"12. So far the income of the deceased Amitabh Sahu @ Amit Sahu it has been held by the Hon'ble Apex Court in R.D, Hattangadi Vs. Pest Control (India) Pvt.

Ltd 1995 (1) 551 that in its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetic consideration some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. In the same manner it has been held by the Hon'ble Apex Court in Kumaresh Versus Divisional Manager, National Insurance Company (Reported in 2011 SCC (12) 488 that even salary certificate has been proved by the employer however if from cross examination if income of the deceased does not appear genuine, tribunal can fix income of the deceased considering ground realities. In support of earning of the deceased the applicant merely stated that deceased son Amitabh Sahu @ Amit Sahu was the permanent employee of last 6 years of Usha Martin Company Ltd., Gamaharia, and earned RS.30,000/- per month. Applicant adduced the pay slip issued by Usha Martin Company Ltd., Gamharia Ext.x to Ext.X/3 mark for identification Salary head code E010 pay is Rs. 6,88/- and HRA head code 060 pay is Rs.2,040 total of RS.8,840/. Rest allowance like Product Bonus, Special allowance and Addl. Allowance are not come under the regular income of the deceased. In the instant case applicants made in the plaint application the salary of deceased Rs.23,000/-. Wherein AW1 in his examination in chief stated that his deceased son monthly salary Rs.30,000/- but

pay slip issued by the Usha Martin Company Ltd., Gamharia Ext.x to Ext.X/3 Usha Martin Company Ltd., Gamharia Ext.x to Ext.X/3 indicate the total salary of deceased inluding four type of allowance like product Bonus, Special allowance and Addl. Allowance is only Rs.19,000/- only. It means AW1 Satyanarayan Sahu who is the father of the deceased stated false statement regarding the salary of deceased. The applicants not come with clean hand before the court. The applicants measurably failed to adduced any income tax return of the deceased or bank pass etc. I further find enough merit in the contention of learned counsel of the OP that the claim of compensation amount by the applicant is highly exaggerated and without any base. The amount of compensation claimed by the applicant on account of income is fantastically excessive, abnormal and without any legal and equitable basis. The Hon'ble Apex Court has pleased decided in the case of Divisional Controller KSRTC Vs. Mahadev Shetty (2003) 7 SCC 197, New India Assurance Company Vs. Charlie 2005 (2) PLJR 249 (SC) (2005) 10 SCC 720, See also Syed Basheer Ahmed and others Vs. Md. Jameel and another 2009 AIR SCW 493 AIR 2009 SUPREME COURT 1219, New India Assurance Company Vs. Yogesh Devi (2012) 3 SCC 613 : (2012) 2 SCC (cri) 215; Air 2012 SUPREME COURT

945. " That the Compensation on multiplier basis must be a just compensation and it should neither be a bonanza nor a source of profit". In the same manner the Hon'ble Apex Court further held that Claim for compensation- compensation to be awarded must be 'just' Should not be bonanza AIR SUPERIME COURT 324 " New India Assurance Co. Ltd. v. Satender" see also AIR 2009 SC (Supp) 759 Harijan Mangri Siddakka v. Oriental Insurance Co. Ltd." The Hon'ble Apex Court further held that what would, however, bea just and reasonable compensation depends upon the fact- situation obtaining in each case. No hard and fast rule therefore can be laid down. The Court must also bear in mind that compensation should not be treated to be windfall. AIR 2009 SUPREME COURT 2442 'Oriental Insurance Co. Ltd., v. Deo Patodi". The Hon'ble Apex Court further held that there is no fixed Rule thus Compensation must be based on certain data, establishing reasonable nexus between loss incurred and compensation Syed Basheer Ahmed Vs. Md. Jameel (2009) 2 SCC 225. it has been held by the Hon'ble Apex Court in Reshma Kumari versus Madan Mohan (2013) 9 SCC 65 in Para 29 that Section 168 of the 1988 Act provides the guideline that the amount of compensation shall be awarded by the claims tribunal which appears to it to be just. The expression, "just" means that the amount so determined is fair, reasonable and equitable by accepted legal standards and not aforensic lottery. Obviously 'just commission' does not mean 'perfect' or 'absolute' compensation. The just compensation principle requires examination of the particular situation obtaining uniquelyin an individual case. The Hon'ble Apex Court in the case of New India Assurance Company Vs. Yogesh Devi (2012) 3 SCC 613 : (2012) 2 SCC (cri) 215; AIR 2012 SUPREME COURT 945 observed that "the compensation on multiplier basis must be a just compensation and it should neither be a bonanza nor a source of profit".

Thus, in the light of decision of the Hon'ble Apex Court and in the above facts and circumstances of the case particularly year of accident in 2015 and occupation & Pay Slip Ext.X to Ext.X/3 age of the deceased, I found and hold that Amitabh Sahu @ Amit Sahu earned income of Rs.1,08,000/- per annum (Rs.9,000/- per month). The ld. counsel of the applicant has claimed 50% additional income for the future prospect of the deceased. During course of argument the ld. counsel of the the applicants submitted that deceased was was the permanent employer of last 6 years o Usha Martin company Ltd., Gamharia. His deceased son Amitabh Sahu @ Amit Sahu has bright carrier and future prospect in his service and his monthly income will be grown up to double if he will survive, so 50% of Future prospect loss of earning should be awarded in the instant case. It has been held by Hon'ble Apex Court in Reshma Kumari versus Madan Mohan (2013) 9 SCC 65 that there should be 30% addition on account of future prospect if deceased is below 40 years and deceased was in a permanent job. Hon'ble Apex Court Santosh Devi versus National Insurance Company Ltd. reported in (2012) 6 SCC 421. It has been held that depending upon the age of the deceased even if case of self employed future prospect should be granted. Hon'ble Supreme Court of India

pleased observed in the decision reported in 2009 AIAR (Civil) 364 Sarla Verma and others versus Delhi Transport Corporation and Others that " in view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years". The learned counsel further reliance of the decision of the Hon'ble Apex Court Rajesh versus Rajbir Singh reported in (2013) 9 SCC 52 and it has been held by the Hon'ble Apex Court that in all cases whether deceased was getting a fixed salary or was seasonal employee further prospect should be granted, if deceased was below 40 years there must be an addition of 50% to the actural income of the deceased and 30% for age group of 40 to 50 years while computing future prospects. Hon'ble Supreme Court of India reported in 2013 AIAR (Civil) 636 Vimal Kanwar and ors. versus Kishore Dan & ors. In which the Hon'ble SC pleased held that "consideration to be taken on account for (I) age of the deceased at the time of that in accident in question and period of the deceased at the time of that in accident in question and period of time for which he would have served. (ii) Salary too which he would have been entitled by the time of his super annuation, (iii) percentage of increase income to be made towards prospect of advancement in future carrier and revision of Pay Scale". In the recent judgment of Hon'ble Apex Court of 5 Judges bench decided on 31.10.2017 in the case of National Insurance company versus Praney Sethi & others in which the Hon'ble SC pleased held that if deceased permanent employed an addition 50% of established income should be warrant which the deceased was below the age of 40 years. In the light of decisions of the Hon'ble Apex Court I find that deceased namely Amitabh Sahu @ Amit Sahu is the pplicants submitted that deceased was the permanent employee of last 6 years of Usha Martin company Ltd., Gamharia and his age was only 31 years. The deceased has got every prospect to increase the income in future and deceased age was only 31 years, and in the light of decisions of the Hon'ble Apex Court referred above, 50% is also awarded on account of future prospect, accordingly (9,000 x 50%) = Rs. 4,500/- is also added, hence monthly income of the deceased would be Rs. 9,000 + 4,500 = 13,500/-. Accordingly, monthly income would be Rs.13,500/- of deceased or annual income is Rs.1,62,000/-. It is admitted fact that the deceased was unmarried hence as per view of Sarla Verma Case (Supra) 1/2 amount would be deducted for the personal expenses of deceased, hence net annual dependency would be Rs.81,000/- per year (1,62,000-81,000). Accordingly, just compensation would be Rs. 12,96,000/-(81,000 x 16) . Applicants are also entitled for Rs.15,000/- for funeral expenses and Rs. 15,000/- for loss of estate and love and affection. Accordingly, just compensation would be Rs.13,26,000/- (Rs. Thirteen Lakhs Fifty Twenty Six Thousand Only). Accordingly this issue is decided in favour of the applicants. Learned counsel has further submitted that if the interest is enhanced the same may be applicable from today i.e. from the date of disposal of the present appeal as the appeal has been filed with delay of 469 days and that the entire amount has already been satisfied to the claimants in terms of the award passed by the learned Tribunal.

Mr. Shankar Lal Agarwal, appearing for the owner of the vehicle has submitted, that his vehicle was duly insured and he has nothing to argue on merits as it is a dispute between the claimants and Insurance Company.

After hearing learned counsel for the parties since no counter-affidavit has been filed the learned counsel for the respondent-Insurance Company in I.A. No.10201/2019 filed for condonation of delay of 469 days, this Court is inclined to condone the delay in a benevolent legislation. Accordingly, I.A. No.10201/2019 is

hereby allowed.

After hearing learned counsel for the parties and on the basis of perusal of the impugned award, it appears that the learned Tribunal has wrongly considered that Profit Bonus, Special Allowance & Additional Allowance do not come under the regular income rather the income of the deceased is to be considered in view of the judgment passed by the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., (Supra) at Paragraph 59.3, whereby, from the gross income tax component has to be deducted. In the present case, in the year, 2015 income upto Rs.2,50,000/- was NIL, as such in the present claim case there shall not be any deduction upon gross income of the deceased, which as per Ext. X to Ext. X/3 is Rs.19,109/- per month and thus total annual income comes to Rs.2,29,308/- (Rs.19,109/- x 12).

Further the deceased died at the age of 31 years as bachelor as such 1 / 2 of the income shall be deducted towards personal and living expenses of the deceased, in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 30.

So far with regard to future prospect is concerned, the same shall be 50% of actual salary as the deceased was permanent employee and died below the age of 40 years, in view of the judgment passed by the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., (Supra) at Paragraph 59.3.

Further since age of the deceased comes between 31 to 35 years as such, multiplier shall be 16 in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 42.

Further claimants are entitled for conventional head to the tune of Rs.70,000/- in view of the judgment passed by the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. (Supra) at Paragraph 59.8 i.e. Rs.15,000/- for loss of estate, Rs.15,000/- for funeral expenses and Rs.40,0000/- for loss of consortium.

So far with regard to interest on the compensation amount is concerned same shall be paid @ 7.5% per annum from the date of filing

of the claim application 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. However, this interest shall be granted from date of filing of the claim application till the date of indemnifying/satisfying the award by the Insurance Company pursuant to the award passed by the learned Tribunal and subsequently from today as the instant appeal has been filed with delay. Accordingly, this court is making fresh calculation for just and fair compensation in view of the judgment passed by the Apex Court in the case of Ranjana Prakash and Ors Vs Divisional Manager & Anr. reported in (2011) 14 SCC 639 at para-8 which has been profitably quoted hereunder:-

"8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

The new calculation chart would be as follows :-

Annual Income                                 Rs.19,109/-       (Rs.19,109/-     x    12=
                                              Rs.2,29,308/-)
1/2 deduction towards personal and            Rs.2,29,308/- minus Rs.1,14,654/- =
living expenses as deceased was a             Rs.1,14,654/-
Bachelor [Sarla Verma (Smt) & others
vs. Delhi Transport Corporation &
another, reported in (2009) 6 SCC 121
at para 30]
Multiplier as 16 as deceased was in the       Rs.1,14,654/- x 16 = Rs.18,34,464/-
age group of 31-35 [Sarla Verma (Smt)
& others vs. Delhi Transport
Corporation & another, reported in
(2009) 6 SCC 121 at para 42]
Future Prospect @ 50% [National               Rs.18,34,464/-+         Rs.9,17,232/-     =
Insurance Company Ltd. vs. Pranay             Rs.27,51696/-
Sethi, reported in (2017) 16 SCC 680 at
para 59.4]
Conventional         Head        [National    Rs.70,000/-
Insurance 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.27,51,696/-      +     Rs.70,000/-     =
                                              Rs.28,21,696/-.

The respondent -Sri Ram General Insurance Company Co. Ltd., is directed to indemnify the compensation amou nt of Rs.28,21,696/- along with interest @7.5 % per annum from the date of filing of the claim application till the date of indemnifying/satisfying the award by the Insurance Company pursuant to the award passed by the learned Tribunal and subsequently from today till payment.

However, the amount paid under Section 140 of the M.V. Act and other amount paid pursuant to the award passed by the learned Tribunal shall be deducted from the aforesaid amount and balance amount shall be paid by the Insurance Company within a reasonable time as the accident is of dated 18.10.2015.

Accordingly, the miscellaneous appeal is allowed.

(Kailash Prasad Deo, J.) Sandeep/tarun