Jharkhand High Court
Jhonga Guiya & Ors vs Md. Aslam Ansari & Ors on 5 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 362 of 2014
......
Jhonga Guiya & Ors. ...... Appellants
Versus
Md. Aslam Ansari & Ors. ......Respondents
With
M.A. No. 330 of 2014
......
Oriental Insurance Co. Ltd. ...... Appellant
Versus
Md. Aslam Ansari & Ors. ......Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
For the Appellants : Ms. Rishi Bharti, Advocate (In M.A. No.362/2014)
Mr. Abhay Kr. Mishra, Advocate (In M.A. No.330/2014)
For the Resp. :
05/Dated: 05/02/2021.
Heard, learned counsel, Ms. Rishi Bharti on the instruction of learned
counsel for the appellants/claimants Mr. Ashutosh Anand and learned
counsel for the Insurance Company, Mr. Abhay Kr. Mishra.
The claimants namely, Jhonga Guiya, Rabi Guiya, Rashmi Guiya,
Sangita Guiya and Mani Kui have preferred this instant Miscellaneous
Appeal for enhancement of the award dated 14.03.2014 passed by learned
District Judge-III-cum-M.V.A.C.T., Jamshedpur in Compensation Case No.85
of 2009 whereby the claimants have been awarded compensation to the tune
of Rs.11,77,912/-, out of which an amount of Rs.50,000/- has already been
paid under Section 140 of the MV Act and after deduction compensation
amount comes to Rs.11,27,912/- which has been rounded to Rs.11,28,000/-
along with interest @ 9% per annum from the date of filing of the claim
application till the date of actual payment with certain conditions to keep
part of money for the minor children. Applicants Jhonga Guiya is directed to
deposit 60% of the received compensation amount in a fixed deposit scheme
for a period of six years in a nationalized bank and applicant, Mani Kui is
also directed to deposit 50% of the received compensation amount in fixed
deposit scheme of a nationalized bank for a period of two years.
Learned counsel for the appellants/claimants has submitted that
deceased (Raju Hoe) died in an accident while he was going on a motorcycle
which was dashed by a Mini Bus bearing registration no.BR16P-5188.
Deceased was permanent employee of UCIL having monthly income of
Rs.7,437/-. The deceased left behind his five dependents and the vehicle was
duly insured before the Oriental Insurance Company Limited. The Insurance
Company has also admitted that the vehicle was insured and verification
report dated 29.04.2010 has been brought on record as Exhibit-A, the original
verification report 01.07.2010 on record as Exhibit-B.
Learned counsel for the appellants/claimants has submitted that the
deceased had income of Rs.7,437/-, per month and the learned Tribunal has
deducted 25% (i.e. 1/4th) towards personal and living expenses and consider
the income for computation of compensation as Rs.5,578/- per month. The
learned Tribunal has applied multiplier of 17 considering the age of the
deceased to be 26 years, as his date of birth was 12.08.1983 on the alleged
date of accident as per Exhibit 9 and as per the finding recorded by the
learned Tribunal 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.
Learned counsel for the appellants/claimants has further submitted
that future prospect of the deceased has not been granted which ought to
have been @ 50% in view of the judgment passed by the Apex Court in the
case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017)
16 SCC 680 at para 59.3, as deceased had a permanent job and he died below the
age of 40 years.
Learned counsel for the appellants/claimants has submitted that under
the conventional head Rs.70,000/- should have been granted in view of the
judgment passed by the Apex Court in the Pranay Sethi (Supra) at para 59.8,
where for the loss of Estate has been considered to be Rs.15,000/-, for loss of
consortium to be Rs.40,000/- and for funeral expenses to be Rs.15,000/- which
has been wrongly awarded by the learned Tribunal Rs.25,000/- for loss of
consortium, Rs.10,000/- i.e. for funeral expenses and for loss of Estate
Rs.5,000/-.
Accordingly, the total compensation has been wrongly calculated to be
Rs.11,77,912/- out of which Rs.50,000/- has already been paid as ad-interim
compensation under Section 140 of the MV Act. Thus, after deducting the
compensation amount comes to Rs.11,27,912/- which has rounded
Rs.11,28,000/- along with interest @ 9% from the date of filing of the claim
application.
Learned counsel for the appellants/claimants has thus submitted that
amount may be enhanced.
Learned counsel for the appellants/claimants has further submitted
that there is delay of 82 days in preferring the appeal, for condonation of the
same, I.A. No.3580 of 2015 has been preferred.
Learned counsel for the claimants has further submitted that vide
order dated 01.05.2019, co-ordinate Bench of this Court has directed the
claimants to file requisites etc. under both process for issuance of notice
upon respondents in limitation matter as well as in appeal, but requisites etc.
could not be filed though the analogous appeal is also being heard preferred
by the Oriental Insurance Company Ltd. The learned Tribunal has directed
the Oriental Insurance Company to indemnify the award objection has been
raised by the learned counsel for the Oriental Insurance Company, but from
perusal of the analogous appeal, it appears that Oriental Insurance Co. Ltd.
has also preferred analogous appeal vide M.A. No.330 of 2014.
Learned counsel for the Insurance Company, Mr. Abhay Kr. Mishra
has submitted that he accepts notice on behalf of the Insurance Co. Ltd. as
analogous appeal has been preferred by the Insurance Company vide M.A.
No.330 of 2014 with delay of 68 days and for condonation of I.A. No.2803 of
2020 has been preferred.
Learned counsel for the Insurance Company has assailed the
impugned award on the ground that though the driver of the offending
vehicle was not authorized to drive heavy motor vehicle as driving licence
was to drive only light motor vehicle and to that effect the Oriental
Insurance Company Ltd. has examined D.W.-2 (Sarbesh Kumar), who has
stated that there was no PSV Badge of the driver of the offending vehicle.
The report of DTO, Patna has disclosed that driver was authorized to drive
only light motor vehicle and in this accident, it has been found that vehicle
No.BR16P-5188 though was insured before the Oriental Insurance Co. Ltd.,
but with regard to the weight of vehicle no oral or documentary evidence
has been brought on record, if a vehicle is below 7,500/- Kg it would be
treated as a LMV and if the weight of the vehicle is more than 12000 kg it
would be treated as heavy motor vehicle and in between 7500 Kg to 12000
Kg vehicle would be treated as medium motor vehicle, but in absence of
such positive evidence adduced by the Insurance Company, the learned
Tribunal has not adjudicated the issue on the basis of consideration made
with regard to bus bearing registration no.BR16P-5188.
Considering such submissions, the counsels are directed to file their
counter-affidavit in this matter.
Office is directed to call for LCR.
Learned counsel, Mr. Abhay Kumar Mishra appearing for the
appellant- Insurance Company in M.A. No.330 of 2014 undertakes to remove
the defect no. 5 by filing certificate and defect no.3 is ignore for the present.
Put up these cases after three weeks.
(Kailash Prasad Deo, J.)
Sandeep/
