Kunti Devi vs Ram Naresh Yadav
2021 Latest Caselaw 809 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 357 of 2014
                                 ......

1. Kunti Devi

2. Manoj Kumar

3. Sarita Kumari

4. Dilip Kumar ...... Appellants Versus

1. Ram Naresh Yadav

2. Bhuneshwar Yadav

3. The Oriental Insurance Co. Ltd. ......Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) For the Appellants : Mr. Awnish Shankar, Advocate For the Resp. No.3 : Mr. Prabhat Kr. Sinha, Advocate

06/Dated: 19/02/2021. I.A. No.4786 of 2014

Learned counsel for the appellants has submitted that there is delay of 61 days in preferring the instant Miscellaneous Appeal, as the claimants are poor lady and minor children, delay of 61 days may be condoned considering it to be a benevolent legislation.

Learned counsel for the respondents has opposed the prayer and submitted that while granting interest the delay may be considered so as to minimize the burden upon the Insurance Company.

Considering the rival submissions of the parties, looking into the facts and circumstances, delay of 61 days in preferring the appeal by a widow and three minor children is hereby condoned.

I.A. No.4786 of 2014 stands disposed of.

M.A. No. 357 of 2014 Heard, learned counsel for the parties.

The claimants/appellants, namely, (1)Kunti Devi, (2)Manoj Kumar, (3)Sarita Kumari and (4)Dilip Kumar (claimants, Manoj Kumar, Sarita Kumari and Dilip Kumar are represented by their mother Kunti Devi) have preferred this instant Miscellaneous Appeal for enhancement of the award dated 11.04.2014 passed by learned District Judge-V-cum-Presiding Officer, M.V.A.C.T., Hazaribag in Claim Case No.58 of 2007. As per the award total compensation comes to Rs.5,02,580/- from which 25% i.e. Rs.1,25,645/- has been deducted towards contributory negligence. Thus claimants have been awarded compensation to the tune of Rs.3,76,935/- to be paid by the O.P.

No.2 i.e. the Oriental Insurance Company Ltd. The Oriental Insurance Company Ltd. has been directed to make the payment within one month from the date of award, failing which the Oriental Insurance company Ltd. shall be liable for penal interest @ 6% per annum from the date of award till its realization.

Learned counsel for the appellants has submitted that deceased (Chaita Mahto) lost his life in a motor vehicle accident on 03.10.1999 at 11.45 A.M. while he was going on his scooter, which was dashed by offending truck bearing registration No.B.E.N. 1531, insured before the Oriental Insurance Co. Ltd. It was a head on collision. The deceased (Chaita Mahto) was working as a Dumper Khalasi at C.C.L., Charhi, lost his life at the age of 38 years having monthly income of Rs.5,303/- per month leaving behind his widow and three minor children.

Learned counsel for the appellants has further submitted that learned Tribunal has not computed the compensation in accordance with law.

Learned counsel for the appellants has submitted that learned Tribunal has wrongly deducted the contribution made by the deceased in the Provident Fund Account and the life insurance while computing compensation, rather 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 59.4, the only component of the tax has to be deducted.

Learned counsel for the appellants has further submitted that learned Tribunal has not considered that the income of the deceased is not taxable at the time of his death on 03.10.1999 as the income tax slab was above than the income of the deceased per annum.

Learned counsel for the appellants has thus submitted that learned Tribunal has wrongly assessed the income of the deceased and committed grave error in computing compensation in favour of appellants.

Learned counsel for the appellants has placed a calculation chart filed before this Court on 09.02.2021 and submitted that deduction with regard to the contributory negligence is not in consonance with the material brought on record.

Learned counsel for the appellants has further submitted that C.W.3 (Bbuneshwar Mahto) has categorically stated at para 6 that deceased was riding scooter in slow speed and one pillion rider was also there, as such, in view of such evidence brought on record, deduction of 25% towards contributory negligence is not in consonance with material brought on the record.

Learned counsel for the appellants has further submitted that learned Tribunal has granted interest @ 6% per annum after one month of the award, if the award is not paid as a penal interest rather the learned Tribunal ought to have awarded interest @ 7.5% per annum from the date of last witnesses examined by the appellants on 31.07.2013 as the learned Tribunal has given reason for the delay caused by the claimants, as such, this Court may consider Section 171 of the MV Act and also the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation, reported in 2008, JCR 4 79 SC.

Learned counsel for the respondent no.3, Mr. Prabhat Kr. Sinha has submitted that so far contributory negligence is concerned, the learned Tribunal has rightly deducted the amount, as discussed by the learned Tribunal at page nos.8 and 9 of the impugned award, which may profitably be quoted hereunder:-

"As I already opined that an element of contributory negligent shall necessary came into play because of the Head on Collision of both the vehicle. Rashly and negligently driving should not be fasten only on the driver of the Truck, rather the scooterist also responsible for such motor accident. As per F.I.R. the scooterist was riding with two pillion rider. The scooterist ought to have taken more precaution so as to avoid accident. At the same time the judicial notice of the fact can be taken that the part taken by the scooterist in this case in respect of negligent is less, so his part of negligent is smaller than the part of negligent of Truck driver. Therefore, the part of amount of compensation might have been shared by the insurer of Truck and the scooterist comes 75:25."

Learned counsel for the respondent no.3 has further submitted that this Court may consider the case of the claimants 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.

Learned counsel for the respondent no.3 has further submitted that the chart furnished by learned counsel for the claimants/appellants is not incorporating the deduction with regard to the contributory negligence, as

such, this Court may consider the same.

Considering the rival submissions of the parties, looking into the facts and circumstances and in view of the FIR and chargesheet, this Court is not inclined to consider that C.W.3 (Bhuneshwar Mahto) is a reliable witness. So far the contributory negligence is concerned, as admittedly FIR and chargesheet shows that deceased (Chaita Mahto) along with two other persons were riding on the scooter at the time of accident.

Accordingly, this Court is not inclined to interfere with the finding recorded with regard to the contributory negligence at the ratio of 75:25 as held by the learned Tribunal.

Now, the fresh calculation for compensation is as follows:- Accordingly, this Court considered the income of the deceased to be Rs.5240/- per month.

Deceased was having fixed income and died at the age of 41 years as per Ext.1 and Ext.1/a, as such, 30% future prospect be added in view of para 59.3 of the judgment passed by the Apex Court in the case of Pranay Sethi (supra) which comes to Rs.1572/-.

Total Rs.6812/- then 1/4th of the same is deducted (which the learned Tribunal has wrongly considered as 1/3 th), since dependents of the deceased are four in number, towards his personal and living expenses in view of para 30 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, which comes to Rs.5,109/- per month.

As such, the amount per annum will come to Rs.5109/- x 12 = Rs.61,308/- (annual income).

Considering the age of the victim to be 41 years multiplier of 14 is applicable in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt) (Supra) para 42.

As such, total amount will be Rs.61,308/- (annual income) x 14 = Rs.8,58,312/-.

Further deduction towards contributory negligence @ 25% the compensation amount comes to Rs.8,58,312/- minus Rs.8,58,312/- x 25% = Rs.6,43,734/-

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) at para 59.8.

Thus, total compensation amount comes to Rs.6,43,734/- + Rs.70,000/- = Rs.7,13,734/-.

The interest should be awarded @ 7.5% per annum from the date of last witness examined on behalf of the claimants i.e. 31.07.2013 till the date of actual indemnifying the award.

New calculation chart is as follows:-

          Income                   Rs.5,240/-
          Future Prospect          Rs.5,240/- + (Rs.5,240/- x 30% = Rs.1,572/-) =
                                   Rs.6,812/-

1/4 Deduction towards Rs.6,812/- minus Rs.1703/- = Rs.5,109/- personal and living expenses Total annual Income Rs.5,109/- x 12 = Rs.61,308/- Multiplier of 14 (as the Rs.61,308/- x 14 = Rs.8,58,312/- deceased was in the age group of 41 years) Further contributory Rs.8,58,312/- minus Rs.8,58,312/- x 25% = negligence @ 25% Rs.6,43,734/-

Conventional Head Rs.70,000/-

Total Compensation Rs.6,43,734/- + Rs.70,000/- = Rs.7,13,734/- Amount

Accordingly, the instant appeal is hereby allowed. The amount of Rs.50,000/- if paid under Section 140 of the MV Act, and the awarded amount passed by the learned Tribunal, if already indemnified by the Insurance Company to the claimants shall be deducted and balance amount shall be paid along with 7.5% interest from the date i.e. 31.07.2013 when the evidence of the claimants was closed till the date of actual indemnifying the award.

(Kailash Prasad Deo, J.) R.S-