Ranmait Devi & Others vs Wilfred Surin & Another
2021 Latest Caselaw 477 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 44 of 2014
                          ........

Ranmait Devi & Others .... ..... Appellants Versus Wilfred Surin & Another .... ..... Respondents

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

For the Appellants : Mr. Pankaj Kumar, Advocate For the Respondent No. 1 : Mr. Shobhakar Mishra, Advocate For the Respondent No. 2 : Mr. Manish Kumar, Advocate.

........

07/02.02.2021.

I.A. No. 1112 of 2014 Learned counsel for the appellants has submitted that there is delay of 310 days in preferring the appeal and reason for the same has been explained in I.A. No. 1112/2014 and considering the holistic view of the matter as well as merit of the appeal, the delay may be condoned, if the delay is not condoned in such a benevolent legislation, irreparable loss will be caused to the appellants.

Learned counsel for the Insurance Company and Owner of the Offending Vehicle have opposed the prayer and submitted that the delay may not be condoned and the appeal may be dismissed.

Considering the rival submission of the parties, this Court is inclined to condone the delay of 310 days in preferring the appeal.

Accordingly, delay of 310 days in preferring the appeal is hereby condoned.

I.A. No. 1112 of 2014 stands allowed.

M.A. No. 44 of 2014 Appellants / claimants namely, Ranmait Devi, Lokeshwar Ram, Manraj Ram and Hari Bhanjan Kewat have preferred this appeal for enhancement of Award dated 17.12.2012 passed by learned Principal District Judge-cum-MACT, Simdega in MACC No. 4/2010, whereby claimants have been awarded compensation to the tune of Rs. 3,67,000/- (amount of Rs. 50,000/- has already been paid under Section 140 Motor Vehicles Act) along with interest @7% per annum from the date of Award i.e. 17.12.2012 within a period of three months from the date of award failing which, claimants shall be

entitled to interest @ 9% per annum from the date of order till the date of final payment.

Learned counsel for the appellants has submitted that on the alleged date of occurrence i.e. 03.02.2010 the deceased along with the informant came to Simdega on T.V.S. XL No. JH-20A-1402. While returning through the said motorcycle to their house. At about 11:45 A.M., when they reached near Block Colony, a Tata Sumo coming from opposite direction driving in rash and negligent manner dashed the motorcycle of the deceased and due to that deceased received fatal injury and informant has also sustained injury. Then, both the injured were taken to hospital where Narayan Ram died during course of treatment.

Learned counsel for the appellants has submitted that the income of the deceased was Rs. 8,000/- per month through private business, but the learned Tribunal has wrongly considered the income of the deceased to be Rs. 3,000/- per month in absence of any documentary evidence brought on record, contrary to the judgment passed by the Apex Court passed in the case of of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), where the Apex Court in absence of any documentary evidence has considered the income of Carpenter to be Rs. 5,000/- per month.

Learned counsel for the appellants has further submitted that the future prospect of the deceased has not been considered, in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (paragraph- 59.4) reported in (2017) 16 SCC 680, future prospect @ 25% may be allowed as the deceased was aged 45 years and comes under the age group between 40-50 years.

Learned counsel for the appellants has submitted that while computing the compensation, the learned Tribunal has not granted amount of Rs. 70,000/- under the conventional head in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra)(paragraph-59.8) i.e. Rs. 40,000/- for loss of consortium,

Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of love and affection, instead of that the learned Tribunal has only granted Rs. 2,000/- for funeral expenses and Rs. 5,000/- for loss of consortium .

Learned counsel for the appellants has further submitted that though interest has been granted but @7% per annum from the date of award, which ought to have been 7.5% from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act coupled with the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (4) JCR 79 (SC), as such, this Court may enhance the same.

Learned counsel for the Insurance Company has submitted that the amount of Award, as granted by learned Tribunal, to the tune of Rs. 3,17,000/- has already been indemnified.

Learned counsel for the Insurance Company has further submitted that the victim died leaving behind her wife, two minor children and father, but learned Tribunal has deducted 1/3rd towards personal and living expenses, which ought to have been 1/4 th in view of the judgment passed by the Apex Court passed in the case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr. (Para-30) reported in (2009) 6 SCC 121.

Learned counsel for the Insurance Company has further submitted that claimants have claimed that the age of the deceased Narayan Ram was 35 years, but in the postmortem report the doctor has assessed the age of the deceased as 45 years, as such multiplier of 14 was applicable in view of Judgment passed by Apex Court in the case of Sarla Verma (Smt.) (Supra) (Para-42), but the learned Tribunal has wrongly applied the multiplier of 15.

Learned counsel for the Insurance Company has further submitted that first time notice has been issued to the Insurance Company in this appeal vide order dated 09.05.2018, as the appeal has been filed with delay of 310 days, for which the Insurance Company shall not be saddled, as such, interest @7.5% may be

granted, but from 09.05.2018, when the notice has been issued to the Insurance Company.

. Considering the rival submission of the parties and looking into facts and circumstances of the case, this Court considered the judgment of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639 where this Court has to examine that compensation awarded to the claimants shall be just and fair compensation, as such, this Court consider the factual aspects of the matter.

On 03.02.2010 the deceased Narayan Ram along with the informant came to Simdega on T.V.S. XL No. JH-20A-1402 for some work and they were returning through the said motorcycle to their house. At about 11:45 A.M., when they reached near Block Colony, a Tata Sumo coming from opposite direction driving in rash and negligent manner dashed the motorcycle of the deceased and due to that deceased received fatal injury and informant has also sustained injury. Then, the injured was taken to hospital where Narayan Ram died during course of treatment. For the aforesaid occurrence, Simdega P.S. Case No. 14/2010 dated 03.02.2010 under Sections 279, 337, 338 & 304(A) of I.P.C. was instituted against the driver of the offending vehicle. After completion of investigation, the police submitted charge sheet under Sections 279, 337, 338 & 304(A) IPC, only against the driver of the offending vehicle. From the factual aspect of the matter, it appears that the deceased Narayan Ram was aged about 45 years at the time of accident, he left behind his wife, two children and father and as such, this Court consider the income of the deceased to be Rs. 5,000/- in absence of any documentary evidence following the ratio laid down by the Apex Court in the case of Chameli Devi (Supra).

It appears that though the claimants have claimed that the age of the deceased to be 35 years, but the learned Tribunal has considered it to be 45 years as per post-mortem report, as such, this Court is also inclined to consider the age of the deceased as 45 years.

Since the delay of 310 days in preferring the instant appeal has been condoned for the maintainability of the appeal, but for the first

time notice has been issued upon the Insurance Company on 09.05.2018, as such, this Court accept the argument advanced by the learned counsel for the Insurance Company. Accordingly, the interest shall be paid on the enhanced amount @ 7.5% from 09.05.2018 till the date of actual indemnifying the award.

Accordingly, the new calculation is as follows:-

Income                              Rs. 5,000/- per month
Annual Income                       Rs. 5,000/- x 12 = Rs. 60,000/-
25% future prospect                 Rs. 60,000/- + Rs. 15,000/-
                                    = Rs. 75,000/-

1/4th deduction towards personal Rs. 75,000/- x 1/4 = Rs. 18,750/-

and living expenses
Total Income                        Rs. 75,000/- - Rs. 18,750/-
                                    = Rs. 56,250/-

Multiplier of 14 (as the deceased Rs. 56,250/- x 14 = Rs. 7,87,500/-

was in the age group of 41-45
years)
Conventional Head                   Rs. 70,000/-
Total Compensation Amount           Rs. 7,87,500/- + Rs. 70,000/-
                                    = Rs. 8,57,500/-
Interest                            Rs. 8,57,500/- along with S.I. @ 7.5%
                                    from 09.05.2018 when for the first time
                                    notice was issued to the Insurance
                                    Company till the date of actual payment.

The entire compensation amount comes to Rs. 8,57,500/-. However, Rs. 3,67,000/- has already been paid by the Insurance Company, as such, Insurance Company shall calculate and pay the interest @ 7.5% per annum from the date of filing of the claim application till the date of payment of principal amount of Rs. 3,67,000/-. Thereafter, the balance amount i.e. Rs. 4,90,500/- shall be paid along with interest @ 7.5 % per annum from 09.05.2018, when for the first time notice was issued to the Insurance Company till its payment in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons (Supra).

Accordingly, the instant Miscellaneous Appeal is allowed in the aforesaid terms.

(Kailash Prasad Deo, J.) Sunil/-