Smt. Niru Devi Bhukania & Others vs Sri Shailesh Kumar Choudhary & ...
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 383 of 2014
                           ........

Smt. Niru Devi Bhukania & Others .... ..... Appellants Versus Sri Shailesh Kumar Choudhary & Others ..... ..... Respondents

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

For the Appellants : Ms. Rishi Bharti, Advocate For the Respondent No. 1 : Ms. Madhulika Dasgupta, Advocate For the Respondent No. 3 : Mr. G.C. Jha, Advocate.

........

10/09.02.2021.

When the matter is taken up, learned counsel for the appellants, Ms. Rishi Bharti has prayed for adjournment on the ground that this case shall be argued by Mrs. Binit Chandra.

It appears that the appeal has been preferred in the year 2014 by the appellants namely, (i) Smt. Niru Devi Bhukania, (ii) Minor Aman Kumar Bhukania, (iii) Minor Shourabhu Kumar Bhukania,

(iv) Purushotam Lal Bhukania and (v) Smt. Lalita Devi for enhancement of the award dated 16.06.2014 passed by learned District Judge-III-cum-M.A.C.T., Dhanbad in Title (M.V.) Suit No. 144/2002.

Since the appeal has been preferred in the year 2014 and the contesting respondents i.e. M/s United India Insurance Company Ltd. and the Owner of the Vehicle have already put their appearance, as such, it would be proper for this Court to dispose of the case which is lingering before this Court since 2014 as the pendency of the appeal may cause prejudice to the Insurance Company to pay interest because of unnecessary adjournment.

Under the aforesaid circumstance, this Court has taken assistance from learned counsel for the Insurance Company, learned counsel for the Owner and perused the impugned judgment and materials on record.

It appears that on 07.06.2002 at 4:15 P.M., the deceased Sanjay Kumar Bhukania was traveling in Nav Ratri Delux Bus bearing registration No. BR-17P-4895, but due to rash and negligent driving of the driver of the offending vehicle, the said bus dashed in standing tanker bearing registration no. PB-10G-9665 resulting in

grievous injury to Sanjay Kumar Bhukania and other passengers. Sanjay Kumar Bhukania was brought to P.M.C.H. Dhanbad, but on the way he died. On the basis of written report of one Raj Kumar Pandey, Govindpur P.S. Case No. 82/02 dated 7.6.2002 under Sections 279/337/338/427/304(A) I.P.C. against the driver of the Bus bearing registration no. BR-17P4895 has been registered.

The claim application has been filed by the claimants before the Tribunal, who are appellants, before this Court, claiming the income of the deceased Sanjay Kumar Bhukania as Rs. 90,000/- per month, i.e. Rs. 15,000/- per month working under Keshav Sales and Rs. 75,000/- per month while engaged in the business of L&T Cement as Supplier. The deceased died at the age of 38 years on 07.06.2002.

After notice, the defendant no. 3 M/s United India Insurance Company has filed written statement admitting that the bus bearing registration no. BR-17P-4895 was insured at the time of occurrence, but liability, if any is strictly limited as provided under Sections 147, 149 of the Motor Vehicles Act.

Learned counsel for the Insurance Company has denied that the deceased was in service under Keshav Sales and doing business as Carry & Forward (C&F) of Cement business and earned Rs. 90,000/- per month as stated in the plaint.

Defendant no. 4 M/s New India Assurance Company Limited insurer of tanker bearing registration no. PB-10G-9665 has also appeared.

Learned Tribunal has framed altogether eight issues. Issue No. I :- Is the suit as framed maintainable ? Issue No. II :- Has the claimants any cause of action for the suit? Issue No. III :- Whether the claim is barred by limitation? Issue No. IV:- Whether the deceased Sanjay Kumar Bhukania died in a road accident on 7.6.2002?

Issue No. V :- Whether the driver of both the offending vehicles No. BR- 17P-4895 and PB-10G-9665 were rash and negligent at the relevant time?

Issue No. VI:- Whether the claimants are entitled to any compensation ?

If so, for what amount and from whom ?

Issue No. VII:- What amount of compensation the plaintiff's are entitled for and from whom?

Issue No. VIII:- To what relief or reliefs the claimants are entitled? The claimants have exhibited number of documents:- Ext. 1 is the Income Tax return for the Assessment year 2003-04 in the name of Late Sanjay Kumar Bhukania.

Ext. 1/1 is signature of Niru Devi w/o Late Sanjay Kumar Bhukania in the SARAL form, Ext. 2 is the Income Tax return for the Assessment year 2002-03 in the name of Late Sanjay Kumar Bhukania.

Ext. 2/1 signature of Niru Devi w/o Late Sanjay Kumar Bhukania in the SARAL form, Ext. 3 is Salary certificate dated 2.07.2002 relating to salary of deceased Sanjay Kumar Bhukania, Ext. 4 is copy of Customer statement of Account in the name of one Goswami Traders with respect to L&T Cement Ltd., Ext. 5 is another salary certificate dated 18.10.2006 relating to salary of deceased Sanjay Kumar Bhukania, Ext. 5/1 is signature of Brajesh Narnolia (P.W.6) on salary certificate, Ext. 6 is C.C. of FIR of Govindpur P.S. Case No. 82/02, Ext. 7 is C.C. of charge sheet of above noted case, Ext. 8 is the Xerox copy of Postmortem report of deceased Sanjay Kumar Bhukania, Ext. 9 is Xerox copy of the death certificate of deceased Sanjay Kumar Bhukania, Ext. 10 is S.L.C. of deceased Sanjay Kumar Bhukania' Ext. 11 is the xerox copy of registration of Bus No. BR-17P-4895, Ext. 12 is the xerox copy of tax token of Bus No. BR-17P-4895, Ext. 13 is the xerox copy of driving license of Jagdeo Singh, the drier of tanker No. PB-10G-9665, Ext. 14 is the xerox copy of Insurance policy of Bus No. BR-17P-4895, Ext. 15 is the copy of fitness of No. BR-17P-4895, Ext. 16 is the xerox copy of insurance policy of tanker No. PB-10G- 9665, Ext. 17 is the xerox copy of driving license of Sri Ram Kumar, the driver of offending Bus No. BR-17P-4895.

Ranjit Singh has been examined as P.W.-1, Niru Devi has been examined as P.W.-2, Uttam Kumar Bhukania has been examined as P.W.-3, Purushottam Lal Bhukania has been examined as P.W.-4,

Smt. Lalita Devi Bhukania has been examined as P.W.-5 and Brajesh Narnolia has been examined as P.W.-6.

It appears that the appeal has been preferred on the ground that the learned Tribunal has not considered the income of the deceased on the basis of the document brought on record as Exhibit-3 & Exhibit-5. Since the counsel for the appellants is not present, the appeal is pending before this Court for enhancement since 2014. This Court peruse the impugned award and other materials. From perusal of the same, it appears that the learned Tribunal has taken all precautions while discussing the Exhibit-3 i.e. Salary Certificate dated 02.07.2002 and Exhibit-5 another salary certificate dated 18.10.2006 related to the deceased Sanjay Kumar Bhukania purported to be issued by the one Brajesh Narnolia for the Keshav Sales. Paragraph-12 of the impugned judgment is re-produced hereunder for proper appreciation:-

"12. After having heard the learned counsels for both the sides and upon going through the documents, I find that the claimants have brought on record the Income Tax returns (Ext. 1 &2) for the Assessment years 2002-03 and 2003-4 purported to be in the name of Late Sanjay Kumar Bhukania filed by Niru Devi w/o Late Sanjay Kumar Bhukania in the SARAL form having her signatures (Ext. 1/1 and 2/1). From perusal of the same it appears that on 31.1.2003 and 30.3.04 respectively income tax return were filed on behalf of Late Sanjay Kumar Bhukania for the Assessment year 2002-03 and 2003-04 by his wife showing his income from salary as Rs. 20,000/- only and income from business of Rs. 1,63,354/- and a sum of Rs. 36,710/- has been shown as tax paid for the Assessment year 2002-03. Similarly income from salary as Rs. 30,000/- only and income from business of Rs. 1,98,766/- and a sum of Rs. 56, 329/- has been shown as tax paid for the Assessment year 2003-04. But surprisingly enough not a single challan showing the payment of income tax has been produced on behalf of the claimant in order to show that in fact tax was paid for the estate of the deceased. Apart from that no income tax return or any Assessment order has been filed during the life time of the deceased, which creates a serious doubt upon the documents referred to above. The deceased was allegedly earning a sum of Rs.

90,000/- per month out of which a sum of Rs. 75,000/- was earned from the business of L&T cement and Rs. 15,000/- per month as salary from Keshav Sales. But neither any income tax assessment / return with

respect to said amount nor any documentary evidence in this regard has been brought on record and in absence of any cogent evidence in this regard it is too hard to believe the said contention of the claimants.

Likewise Ext.-3 is purported to be the Salary certificate dated 2.07.2002 of deceased Sanjay Kumar Bhukania, which has been filed by the claimants allegedly issued by Brajesh Narnolia, for Keshav Sales. On perusal of the said salary certificate issued by Brajesh Narnolia it appears that it has been certified that he has paid a sum of Rs. 45,000/- to the deceased as salary during April to June for the financial year 2002-03. Admittedly the accident took place on 7.6.2002 and as per salary certificate even the salary of June 02 has been shown to be paid and as such how the firm can pay the salary of the deceased for the month of June, 2002, which has not been completed is beyond imagination and it creates a serious doubt upon the document. Similarly, Ext. 4, a copy of Customer statement of Accound in the name of one Goswami Traders with respect to L&T Ltd. from 1.04.2001 to 19.9.2002 and in the last line an entry has been made on 31.7.2002 and how it can be possible for that transaction if the deceased died on 7.6.2002, which also creates a doubt upon the said document. More over there is no document showing that Goswami Traders was the concern of deceased and he was the authorized stockist/supplier of L&T Cement and thus, it is beyond imagination that Ext.-4 has any bearing with the fact in issue and the same is not all relevant for proving the fact that the deceased was running a business of L&T cement and was earning a sum of Rs. 75,000/- per month.

Ext. 5, another salary certificate dated 18.10.2006 relating to salary of deceased Sanjay Kumar Bhukania, purported to be issued by Brajesh Narnolia for the Keshav Sales, in which he has certified that the deceased was working under him as a Manager since 1.2.2002 and as per his official record his monthly salary was Rs. 15,000/- only. But Brajesh Narnolia (P.W.-6) has admitted in his evidence that deceased was not given any appointment letter but the salary paid to the deceased was being shown in expenditure and he can file the Income tax assessment but no such document has been filed. Again he has admitted that neither the receipt in lieu of salary paid to the deceased was obtained nor any register was maintained in this regard. Had the Income tax assessment been filed the situation would have been other wise. But in view of the fact that neither the receipt in lieu of salary paid to the deceased was obtained/kept nor any register was maintained in this regard, casts a serious doubt upon the said certificate. As, such, it is

too big a pill to be swallowed. Therefore, no weight is required to be attached to the salary certificate for the purpose of assessment of the income of the deceased."

From perusal of the same, it appears that the Salary Certificate has not been considered to be valid Salary Certificate by the learned Tribunal and sufficient reason has been assigned, which does not warrant any interference by this Court.

Learned counsel for the Insurance Company, Mr. G.C. Jha, has submitted that the Income Tax return for the assessment year 2002- 03, 2003-04 have been filed subsequent to the death of the deceased on 07.06.2002 are not relevant in view of the judgment passed by the Apex Court in the case of V. Subbulakshmi & Others Versus S. Lakshmi & Another reported in (2008) 4 SCC 224. Para-17 of the aforesaid judgment is profitably quoted hereunder:-

"17. So far as the question in regard to the quantum of compensation awarded in favour of the appellants is concerned, we are of the opinion that the High Court has taken into consideration all relevant evidences brought on record.

The accident took place on 7.5.1997. Income tax returns were filed on 23.6.1997. The Income Tax Returns (Exp. P-14), therefore, have rightly not been relied upon. Ex.P-8 is a deed of lease. It was an unregistered document. Although the document was purported to have been executed on 10.4.1993, the genuineness thereof was open to question. The stamp paper was purchased in the year 1983 but an interpolation was made therein to show that it was purchased in 1993. The purported receipts granted by the tenant were also unstamped."

Learned counsel for the Insurance Company has fairly submitted that the income assessed by the learned Tribunal to the tune of Rs. 5,000/- is justified as the plea taken by the claimants is found to be not reliable, as such, this Court may not enhance the income of the deceased in absence of any reliable document or legally proved document. The accident is of the year 2002, as such, Rs. 5000/- income at that time was justified as assessed by the learned Tribunal as the documents filed by the claimants are purported to be used by the claimants for illegal gain, which cannot

be granted in a motor accident claim case, where, the Court has to award just and fair compensation.

Learned counsel for the Owner of the Offending Vehicle, Ms. Madhulika Dasgupta has submitted that the vehicle was insured and there is no dispute about the same as the Insurance Company has not preferred any analogous appeal for shifting the liability from Insurance Company to Owner of the Bus and as such, what amount has to be enhanced that shall be paid by the Insurance Company.

Considering the rival submissions of the parties and looking into facts and circumstances of the case, the income of the deceased has been rightly assessed by the learned Tribunal as discussed in para-12 of the impugned judgment as mentioned above, but the future prospect of the deceased has not been considered 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 and since the deceased died at the age of 40 years as per post-mortem report that is Exhibit-8, the enhancement should be 25% as future prospect, as deceased was between age group of 40-50 years in view of the judgment passed by the Apex Court in the case of Insurance Company Ltd. Vs. Pranay Sethi and Ors. (paragraph-59.4) reported in (2017) 16 SCC 680.

Further, the number of dependents comprises of five persons, as such deduction shall be 1/4th which has been rightly done by the learned Tribunal.

In view of the judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639, this Court is computing the compensation afresh:-

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/-
Pranay Sethi (Supra)              = Rs. 75,000/-

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

and living expenses
(Sarla Verma Supra)



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

Multiplier of 15 (as the deceased Rs. 56,250/- x 15 = Rs. 8,43,750/-

was in the age group of 36-40
years) Sarla Verma (Supra)
Conventional Head                  Rs. 70,000/-
Pranay Sethi (Supra)
Total Compensation Amount          Rs. 8,43,750/- + Rs. 70,000/-
                                   = Rs. 9,13,750/-

M/s United India Insurance Co. Ltd. is directed to indemnify the enhanced award after deducting the amount already paid in view of award passed by the learned Tribunal. So far with regard to interest is concerned, M/s United India Insurance Company is directed to pay interest @ 7.5% per annum simple on the amount already indemnified from the date of filing of the claim application till the date of actual payment and on the enhanced amount, i.e. difference of amount, the Insurance Company is directed to pay interest @ 7.5% per annum simple from the date of filing of the appeal before this Court till the date of indemnifying the award.

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

(Kailash Prasad Deo, J.) Sunil/-