Jharkhand High Court
Abdul Karim & Another vs Naushad Alam & Another on 2 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 360 of 2013
........
Abdul Karim & Another .... ..... Appellants
Versus
Naushad Alam & Another .... ..... Respondents
WITH
M.A. No. 361 of 2013
........
Mahboon Khatoon & Another .... ..... Appellants
Versus
Naushad Alam & Another .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellants : Mr. Vijay Kumar Sharma, Advocate
(in both cases).
For the Respondent No. 1 : Mr. Amit Kumar, Advocate
(in both cases)
For the Respondent No. 2 : Mr. Alok Lal, Advocate.
(in both cases).
........
08/02.02.2021.
Both the miscellaneous appeals i.e. M.A. No. 360/2013 and
M.A. No. 361/2013 are arising out of the same accident in which two
set of claimants vide Claim Case No. 25/2004 and Claim Case No.
28/2004 came before this Court for enhancement of the Award, as
such, both the appeals are being heard together.
I.A. No. 3930 of 2014 in M.A. No. 360 of 2013
Learned counsel for the appellants has submitted that there is
delay of 02 days in preferring the appeal and for condonation of the
same, I.A. No. 3930 of 2014 has been filed and the reasons has been
assigned in the interlocutory application.
Since no counter affidavit has been filed in the limitation
petition, even though learned counsel for the Insurance Company has
appeared, the delay in filing the appeal is hereby condoned.
I.A. No. 3930 of 2014 is allowed.
M.A. No. 360 of 2013
M.A. No. 360/2013 has been preferred by the claimants
namely, Abdul Karim and Jamila Khatoon for enhancement of the
Award dated 22.08.2013 passed by learned Additional Claim
Tribunal, 3rd, Chatra in Claim Case No. 25/2004, whereby
compensation for the death of Amna Khatoon, aged about 18 years,
has been awarded to the tune of Rs. 1,62,000/- (out of which amount
of Rs. 50,000/- has already been paid under Section 140 Motor
Vehicles Act) against the Oriental Insurance Company Limited
within one months from the date of Award, failing which the
Insurance Company shall have to pay 8% simple interest on the said
amount with riding clause to recover the same from the owner of the
truck in question.
Learned counsel for the appellants has submitted that daughter
of both the claimants died in a motor accident at the age of 18 years
by a mini truck bearing registration no. JH-02B-3894, which was
registered in the name of Naushad Alam, son of Md. Samsuddin,
resident of Village - Patha, P.O. - Simariya, P.S. - Simariya, District
- Chatra.
Learned counsel for the appellants has submitted that the
deceased died at the age of 18 years, leaving left behind her father
and mother. She was a vegetable seller, but the learned Tribunal has
wrongly considered the income of the deceased to be Rs. 3,000/- 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 age of the deceased Amna Khatoon was 18 years, as such
multiplier of 18 was applicable in view of Judgment passed by Apex
Court in the case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport
Corporation & Anr. reported in (2009) 6 SCC 121 (Para-42), but the
learned Tribunal has wrongly used multiplier of 9 considering the
age of the claimants.
Learned counsel for the appellants has further submitted that
the future prospect of the deceased, who is vegetable seller has not
been considered by learned Tribunal, in view of recent judgment
passed in the case of Kirti & Anr. Etc. Vs. Oriental Insurance
Company Limited in Civil Appeal Nos. 19-20 of 2021 decided on
05.01.2021, future prospect is applicable and also 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 at the rate of
40% is applicable in the case of deceased Amna Khatoon, who is a
self-employed, died below the age of 40 years.
Learned counsel for the appellants has further submitted that the
learned Tribunal has not considered the conventional head in view of
the judgment passed by the Apex Court in the case of Pranay Sethi
and Ors. (Supra) (paragraph-59.8), which ought to have been Rs.
70,000/- 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.
Learned counsel for the appellants has further submitted that
though simple interest @ 8% has been granted, but not from the date
of filing of the claim application, rather after one month from the
date of the award i.e. 22.08.2013, if compensation amount is not paid
by the Insurance Company, as such, this Court may allow the interest
from the date of filing of the claim application.
Learned counsel for the Insurance Company has submitted
that following the principle of judgment passed by the Apex Court in
the case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Others
reported in (2004)13 SCC 224, the learned Tribunal has given right
of recovery in favour of the Insurance Company and against the
owner of the vehicle as owner of the vehicle even after notice has not
appeared before the learned Tribunal and as such, the right of
recovery which has been given by the learned Tribunal may be kept
untouched by this Hon'ble Court.
Learned counsel for the Insurance Company has further
submitted that the victim died at unmarried stage, leaving behind her
parents, but under deduction towards personal and living expenses,
the learned Tribunal has deducted 1/3rd, which ought to have been
50% of the income of the deceased, in view of the judgment passed
by the Apex Court passed in the case of Sarla Verma (Smt.) (Supra)
(Para-30).
Learned counsel for the Insurance Company has further
submitted that initially the claimants have preferred an appeal for the
compensation to the tune of Rs. 5,00,000/-, but suo moto they have
amended the claim and demanded Rs. 2,00,000/-, as such, they
cannot be paid more than what they have claimed.
Learned counsel Mr. Amit Kumar, for the Owner of the
offending vehicle namely, Nausad Alam, has submitted that right of
recovery has been given in favour of the Insurance Company, as the
owner has not produced any document before the learned Tribunal,
as such he has nothing to say on this issue, as the deceased was
gratuitous passenger on the said truck on the date of occurrence, such
Issue No. 5 has been decided against the owner of the vehicle, but no
appeal has been preferred by the owner of the vehicle against the
award, whereby right of recovery has been given in favour of the
Insurance Company.
Considering the rival submission of the parties and looking
into facts and circumstances of the case, since this Court is not
inclined to accept the argument of learned counsel for the Insurance
Company that claimants cannot prefer an appeal for enhancement of
the award, if their claim for compensation is low and that cannot be
granted, rather this Court considered the judgment of Ranjana
Prakash & Others Vs. Divisional Manager & Another reported in
2011 (14) SCC 639, where this Court has to look that compensation
awarded to the claimants shall be just and fair compensation, as
such, this Court consider the factual aspects of the matter.
Amna Khatoon deceased and one Md. Nasim along with other
villagers were travelling towards Bagra on the truck bearing
registration no. JH-02B-3894 to meet their relatives on the occasion
of Bakrid festival. The said truck turned turtle near Geruwa Village
due to which Md. Nasim and Amna Khatoon sustained injury and
died. An F.I.R. has been lodged being Chatra Sadar P.S. Case No.
36/2004 corresponding to G.R.No. 112/2004 registered under
Sections 279,337, 338, 304-A I.P.C. After investigation, charge-
sheet has been submitted vide No. 46/2004 on 29.02.2004. From the
factual aspect of the matter, it appears that the deceased Amna
Khatoon was aged about 18 years and at the time of accident, she
was unmarried and left behind her parents, Abdul Karim and Jamila
Khatoon 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).
Accordingly, the new calculation is as follows:-
Income Rs. 5,000/- per month
Annual Income Rs. 5,000/- x 12 = Rs. 60,000/-
40% future prospect Rs. 60,000/- + Rs. 24,000/-
= Rs. 84,000/-
50% deduction towards personal Rs. 84,000/- x 50/100 = Rs. 42,000/-
and living expenses
Total Income Rs. 84,000/- - Rs. 42,000/-
= Rs. 42,000/-
Multiplier of 18 (as the deceased Rs. 42,000/- x 18 = Rs. 7,56,000/-
was in the age group of 15-20
years)
Conventional Head Rs. 70,000/-
Total Compensation Amount Rs. 7,56,000/- + Rs. 70,000/-
= Rs. 8,26,000/-
Interest RS. 8,26,000/- along with S.I. @ 7.5%
from the date of filing of the claim
application till the date of actual payment
in view of judgment of Apex Court passed
in the case of Dharampal and Sons Vs.
U.P. State Road Transport Corporation
reported in 2008 (4) JCR 79 (SC).
It appears that Rs. 50,000/- has already been paid under
Section 140 of the Motor Vehicles Act that shall be deducted and the
balance amount shall be paid to the claimants by the Insurance
Company under Section 166 of the Motor Vehicles Act within a
reasonable period as the occurrence is of dated 02.02.2004 and the
Insurance Company has been given right to recover the same from
the owner of the truck in question which has not been assailed by the
owner, as such the same remained intact.
Accordingly, the appeal is allowed in aforesaid terms.
I.A. No. 6623 of 2019 in M.A. No. 361 of 2013
Learned counsel for the appellants has submitted that there is
delay of 02 days in preferring the appeal and for condonation of the
same, I.A. No. 6623 of 2019 has been filed and the reasons has been
assigned in the interlocutory application.
Since no counter affidavit has been filed in the limitation
petition, even though learned counsel for the Insurance Company has
appeared, the delay in filing the appeal is hereby condoned.
I.A. No. 6623 of 2019 is allowed.
M.A. No. 361 of 2013
M.A. No. 361/2013 has been filed by claimants namely,
Mahboon Khatoon and Chiragan Khatoon (minor daughter of Md.
Naim) for the same occurrence, for enhancement of the Award dated
22.08.2013 passed by learned Additional Claim Tribunal, 3rd, Chatra
in Claim Case No. 28/2004 as deceased Md. Nasim, son of Md.
Inayat died in an accident on 02.02.2004 at about 4:15 P.M. when
Mini Truck bearing registration no. JH-02B-3894 turned turtle near
Geruwa Village causing grievous injury and later on death of Md.
Nasim at an age of 22 years, who was a Vegetable Merchant. The
claimants have been awarded compensation to the tune of Rs.
2,16,000/- (out of which amount of Rs. 50,000/- has already been
paid under Section 140 of Motor Vehicles Act) within one month
from the date of Award, failing which Insurance Company shall have
to pay 8% simple interest on the said amount.
Learned counsel for the appellants has submitted that after
passing of the award dated 22.08.2013, claimant no. 1 namely, Md.
Inayat @ Anaj Hussain, who was father of the deceased, has also
died on 10.11.2013.
Learned counsel for the appellants has submitted that husband
of appellant no. 1/claimant no. 2 died in a motor accident at the age
of 22 years by a truck bearing registration no. JH-02B-3894, which
was registered in the name of Naushad Alam, son of Md. Samsuddin,
resident of Village - Patha, P.O. - Simariya, P.S. - Simariya, District
- Chatra.
Learned counsel for the appellants has submitted that the
deceased died at the age of 22 years. He left behind his wife and a
minor daughter. He was a vegetable merchant, but the learned
Tribunal has wrongly considered the income of the deceased to be
Rs. 3,000/- 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 age of the deceased Md. Nasim was 22 years, as such multiplier
of 18 was applicable in view of Judgment passed by Apex Court in
the case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport
Corporation & Anr. reported in (2009) 6 SCC 121 (Para-42), but the
learned Tribunal has wrongly used multiplier of 9 considering the
age of the claimants.
Learned counsel for the appellants has further submitted that
the future prospect of the deceased, who is vegetable merchant has
not been considered by learned Tribunal, in view of recent judgment
passed in the case of Kirti & Anr. Etc. Vs. Oriental Insurance
Company Limited in Civil Appeal Nos. 19-20 of 2021 decided on
05.01.2021, future prospect is applicable and also 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 at the rate of
40% is applicable in the case deceased Md. Nasim, who is a self-
employee, died below the age of 40 years.
Learned counsel for the appellants has further submitted that
the learned Tribunal has not considered the conventional head in
view of the judgment passed by the Apex Court in the case of
Pranay Sethi and Ors. (Supra) (paragraph-59.8), which ought to
have been Rs. 70,000/- 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.
Learned counsel for the appellants has further submitted that
though simple interest has been granted @ 8%, but not from the date
of filing of the claim application, rather after one month from the
date of the award i.e. 22.08.2013, if compensation amount is not paid
by the Insurance Company, as such, this Court may allow the interest
from the date of filing of the claim application.
Learned counsel for the Insurance Company has submitted
that following the principle of judgment passed by the Apex Court in
the case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Others
reported in (2004)13 SCC 224, the learned Tribunal has given right
of recovery in favour of the Insurance Company and against the
owner of the vehicle, as owner of the vehicle even after notice has
not appeared before the learned Tribunal and as such, the right which
has been given by the learned Tribunal may be kept untouched by
this Hon'ble Court.
Learned counsel for the Insurance Company has further
submitted that this case has checkered history as because initially
Md. Inayat @ Anaj Hussain has not disclosed that his son Md.
Nasim was married having a minor daughter and they were not made
party. Not only that on 24.04.2004 the claimant has filed a petition
under Order 6 Rule 17(II) C.P.C. for change of Nasib to Nasim in
para no. 1 of the petition and also that Md. Nasim was unmarried and
his mother is already dead and the claimant is only legal heir and
successor of the deceased. After hearing the petitioner, the Ld.
Tribunal has been pleased to allow the petition vide order dated
22.6.06 and on the same day in para no. 22 one new para-V was
inserted by the claimant to the effect that Md. Nasim was unmarried
and his mother had already died and the claimant is only legal heir
and successor of the deceased. On 09.08.2006 the 1 st Additional
Claim Tribunal, Chatra has allowed the petition under 140 of M.V.
Act filed by the claimant and Insurance Company O.P. No. 2 was
directed to pay Rs. 50,000/- to the claimant. On 17.05.2007
Mahboon Khatoon has filed a petition that she is wife of the
deceased. She has a minor daughter namely, Chiragan Khatoon.
They are legal heir of the deceased and necessary party in this case.
Her petition was allowed on 19.7.07 and Mahboon Khatoon along
with Chiragan Khatoon were made claimant no. 2 and claimant no. 3
in the claim case.
Learned counsel for the Insurance Company has further
submitted that initially the claimants have preferred an appeal for the
compensation to the tune of Rs. 5,00,000/-, but suo moto they have
amended the claim and demanded Rs. 2,00,000/-, as such, they
cannot be paid more than what they have claimed.
Learned counsel Mr. Amit Kumar, for the Owner of the
offending vehicle namely, Nausad Alam, has submitted that right of
recovery has been given in favour of the Insurance Company as the
owner has not produced any document before the learned Tribunal,
as such he has nothing to say on this issue, as the deceased was
gratuitous passenger on the said truck on the date of occurrence, such
Issue No. 5 has been decided against the owner of the vehicle, but no
appeal has been preferred by the owner of the vehicle against the
award, whereby right of recovery has been given in favour of the
Insurance Company.
Considering the rival submission of the parties and looking
into facts and circumstances of the case, since this Court is not
inclined to accept the argument of learned counsel for the Insurance
Company that claimants cannot prefer an appeal for enhancement of
the award, if their claim for compensation is low and that cannot be
granted, rather this Court considered the judgment of Ranjana
Prakash & Others Vs. Divisional Manager & Another reported in
2011 (14) SCC 639, where this Court has to look that compensation
awarded to the claimants shall be just and fair compensation, as
such, this Court consider the factual aspects of the matter.
Md. Nasim (deceased) and one Amna Khatoon along with
other villagers were travelling towards Bagra on the truck bearing
registration no. JH-02B-3894 to meet their relatives on the occasion
of Bakrid festival. The said truck turned turtle near Geruwa Village
due to which Md. Nasim and Amna Khatoon sustained injury and
died. An F.I.R. has been lodged being Chatra Sadar P.S. Case
No.36/2004 corresponding to G.R.No. 112/2004 registered under
Sections 279,337, 338, 304B I.P.C. After investigation, charge-sheet
has been submitted vide No. 46/2004 on 29.02.2004. From the
factual aspect of the matter, it appears that the deceased Md. Nasim
was aged about 22 years at the time of accident and left behind his
wife Mahboon Khatoon and Chiragan Khatoon (minor daughter of
Md. Naim) 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).
Accordingly, the new calculation is as follows:-
Income Rs. 5,000/- per month
Annual Income Rs. 5,000/- x 12 = Rs. 60,000/-
40% future prospect Rs. 60,000/- + Rs. 24,000/-
= Rs. 84,000/-
1/3rd deduction towards personal Rs. 84,000/- x 1/3 = Rs. 28,000/-
and living expenses
Total Income Rs. 84,000/- - Rs. 28,000/-
= Rs. 56,000/-
Multiplier of 18 (as the deceased Rs. 56,000/- x 18 = Rs. 10,08,000/-
was in the age group of 21-25
years)
Conventional Head Rs. 70,000/-
Total Compensation Amount Rs. 10,08,000/- + Rs. 70,000/-
= Rs. 10,78,000/-
Interest RS. 10,78,000/- along with S.I. @ 7.5%
from the date of filing of the claim
application till the date of actual payment
in view of 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).
It appears that Rs. 50,000/- has already been paid under
Section 140 of the Motor Vehicles Act that shall be deducted and the
balance amount shall be paid to the claimants by the Insurance
Company under Section 166 of the Motor Vehicles Act within a
reasonable period as the occurrence is of dated 02.02.2004 and the
Insurance Company has been given right to recover the same from
the owner of the truck in question which has not been assailed by the
owner, as such the same remained intact.
Accordingly, the appeal is allowed in aforesaid terms.
(Kailash Prasad Deo, J.)
Sunil/-
