The Oriental Insurance Company ... vs Phul Kumari Devi @ Most. Phul ...
2021 Latest Caselaw 547 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 364 of 2014
                                 ......

The Oriental Insurance Company Limited ...... Appellant Versus

1. Phul Kumari Devi @ Most. Phul Kumari Devi @ Phul Kumari

2. Binot Mahato

3. Janardan Chatterjee

4. Vijay Kumar Mahato ......Respondents .........

      CORAM:        HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                    (Through : Video Conferencing)
      For the Appellant              : Mr. G.C. Jha, Advocate
      For the Resp. Nos.1&2          : Ms. Suchitra Pandey, Advocate
      For the Resp. No.4             : Mr. Nisith Kr. Sahani, Advocate

05/Dated: 05/02/2021.

             Heard, learned counsel for the parties.

The Oriental Insurance Company Ltd. has preferred this instant Miscellaneous Appeal against the award dated 04.07.2014 passed by learned District Judge -cum- Motor Accident Claims Tribunal, Bokaro in T.M.V. Claim Case No.48 of 2011 whereby the claimants have been awarded compensation to the tune of Rs.7,76,000/- along with interest @ 9% per annum from the date of application till the date of payment, deducting the amount already paid, within onie month from the date of passing of this order with a liberty to the O.P. No.3 to recover the aforesaid amount of compensation as awarded from the insurer/owner of the vehicle.

Learned counsel for the appellant has submitted that the appeal has been preferred by the Insurance Company against the quantum of compensation as the learned Tribunal has wrongly computed the same. The notice was issued upon the claimants as well as driver and owner of the vehicle, but the owner has not appeared. The claimants has put their appearance through learned counsel, Ms. Suchitra Pandey and the driver of the offending vehicle has put his appearance through learned counsel Mr. Nisith Kr. Sahani and Mrs. Gouri Devi.

Learned counsel for the appellant has further submitted that the deceased (Dwarika Mahto), a vegetable seller died in a motor vehicle accident at the age of 45 years, due to rash and negligent driving by the driver of the vehicle, while he was travelling by vehicle i.e. Tata Mazic bearing registration No.JH09J-6954. The deceased sustained injuries and he

was brought to the hospital and in-course of treatment he died. The police registered Kasmar P.S. Case No.06/2011. The claimants have claimed income of the deceased to be Rs.6,000/- per month, who died at the age of 45 years, but the learned Tribunal has wrongly computed the compensation contrary to 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 as well as National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680.

Learned counsel for the appellant has further submitted that income of the deceased has been considered by the learned Tribunal as Rs.6,000/- per month, but towards the personal and living expenses 1/4 th has been deducted which ought to have been 1/3rd in view of the judgment passed by the Apex Court in the case of Sarla Verma (Supra) at para 30, as such, income ought to have been Rs.4,000/- per month for computing the compensation after deducting 1/3rd towards personal and living expenses. Since the learned Tribunal has computed wrong compensation, as such, impugned order may be set aside as no appeal or cross-objection has been preferred by the claimants though after the notice the claimants have appeared through their counsel.

Learned counsel for the appellant has further submitted that though Rs.50,000/- has already been paid under Section 140 of the MV Act but while computing the final compensation, due to mistake the same has not been deducted by the learned Tribunal rather application was allowed by awarding compensation of Rs.7,76,000/- along with interest @ 9% per annum from the date of application till the date of payment.

Learned counsel for the driver, Mr. N.K. Sahani has submitted that the dispute is between the owner, claimants and Insurance Company the driver of the vehicle has nothing to say on the merits.

Learned counsel for the claimants, Ms. Suchitra Pandey has submitted that in view of the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 para 8 which is 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."

This Court has to consider the just and fair compensation while hearing the instant Miscellaneous Appeal. She has vehemently argued that though no appeal for enhancement nor cross-objection has been filed by the claimants against the impugned award, but the compensation amount cannot be reduced as the future prospect has not been considered by the learned Tribunal. So far under the conventional head instead of Rs.70,000/- in view of judgment passed by the Apex Court in the case of Pranay Sethi (Supra) less amount has been paid.

Learned counsel for the claimants in support of submission has placed reliance in the case Kirti & Anr. Etc. vs. Oriental Insurance Company Ltd. passed in Civil Appeal Nos.19-20 of 2021 decided on 05.01.2021 as well as in the case of Pranay Sethi (supra) at para 59.8 where Rs.15,000/- has been considered for loss of Estate, Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral expenses, as such, this Court may not reduce the compensation as the same is just and fair compensation, which has been awarded @ 9% per annum from the date of filing of the claim application.

Heard, learned counsel for the parties and gone through the facts and circumstances of the case.

The facts are as follows:-

Deceased (Dwarika Mahto), a vegetable seller died at the age of 45 years because of motor vehcile accident while he was travelling by Tata Mazic bearing registration No.JH09J-6954, insured before the appellant- Oriental Insurance Company Ltd. The monthly income of the deceased has been assessed to the tune of Rs.6,000/- per month, but from perusal of the para 13 of the impugned order, it appears that the learned Tribunal has wrongly deducted 1/4th towards personal living expenses of the deceased contrary to the judgment passed by the Apex Court in the case of Sarla

Verma (Supra), which ought to have been 1/3rd as the number of dependents are two.

So far future prospect is concerned, it is true that learned Tribunal has not considered the future prospect of the deceased in view of the judgment passed by the Apex Court in the case of Kirti & Anr. (Supra) as well as Pranay Sethi (supra) at para 59.4. The deceased was self-employed and died at the age of 45 years, as such, future prospect @ 25% was applicable for claimants.

So far amount under conventional head is concerned, it appears that less amount has been paid by the learned Tribunal to the tune of Rs.5,000/- for loss of Estate, Rs.5,000/- for funeral expense and Rs.10,000/- for loss of consortium, which is contrary to the judgment passed by the Apex Court in the case of Pranay Sethi (supra) at para 59.8 where Rs.15,000/- has been considered for loss of Estate, Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral expenses, but multiplier of 14 has been rightly applied by the learned Tribunal in view of the judgment passed by the Apex Court in the case of Sarla Verma (Supra) at para 42 as the deceased died at the age of 45 years.

So far interest is concerned, it appears that this Court has taken consistent view with regard to the interest from the date of filing of the claim application in view of Section 171 of the MV Act and placing reliance upon the judgment passed by the Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, reported in 2008 (4) JCR 79 SC, but in this case learned Tribunal has granted interest @ 9% per annum from the date of application. This Court is conscious of the judgment passed by the Apex Court in the case of Ranjana Prakash (supra) where such eventuality has been taken note of, when scope of enhancement is there, but in absence of any appeal for enhancement or cross-objection by the claimants, in an appeal preferred by the Insurance Company, whether the amount can be reduced or not? the Apex Court has held that in such eventuality the amount shall not be reduced.

Under such circumstances, this Court obviously cannot increase the compensation in the appeal preferred by the insurance Company for reducing the compensation.

Under the aforesaid circumstances, considering it to be just and fair compensation, this Court is not inclined to interfere with the impugned award.

Accordingly, the appeal is disposed of.

The right of recovery granted by the learned Tribunal shall remain intact without any interference by this Court.

The statutory amount deposited by the Insurance Company before this Court while preferring the appeal shall be remitted to the learned Tribunal by the learned Registrar General of this Court within a period of four weeks.

(Kailash Prasad Deo, J.) Sandeep/-