Rupa Devi & Others vs Bijay Kumar Burman & Another
2021 Latest Caselaw 839 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 483 of 2014
                         ........

Rupa Devi & Others                     .... ..... Appellants
                             Versus
Bijay Kumar Burman & Another           ....     ..... Respondents

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

For the Appellants : Mr. Shekhar Prasad Sinha, Advocate For the Respondent No. 2 : Mr. Alok Lal, Advocate ........

09/22.02.2021.

Heard, learned counsel for the appellants, Mr. Shekhar Prasad Sinha and learned counsel for the respondent no. 2, Mr. Alok Lal. I.A. No. 7393 of 2018 Learned counsel for the appellants has submitted that there is delay of 394 days in preferring the appeal as the claimants are poor lady and her two minor children and the reason for the same has been assigned in interlocutory application, as such, considering it to be benevolent legislation, this Court may condone the delay in filing the instant miscellaneous appeal.

Learned counsel for the Insurance Company has opposed the prayer and submitted that after payment of the awarded amount, such appeal has been preferred, as such, the delay may not be condoned and if the delay is condoned, then the interest should not be granted from the date of filing of the claim application, rather it should be granted considering the delay in preferring the appeal.

Considering the rival submission of the parties, this Court is inclined to condone the delay of 394 days in preferring the appeal.

Accordingly, delay of 394 days in preferring the appeal is hereby condoned.

I.A. No. 7393 of 2018 stands disposed of.

M.A. No. 483 of 2014 Appellants namely, (i) Rupa Devi, wife of Late Sanatan Mirdha, (ii) Seema Kumar, daughter of Late Sanatan Mirdha and (iii) Durga Mirdha, son of Late Sanatan Mirdha, all residents of Saharpura, P.S. - Govindpur, District - Dhanbad are claimants before the court below (Appellant No. 2, Seema Kumari and

Appellant No. 3 Durga Mirdha, being the minors are represented by their mother and legal guardian Rupa Devi). The claimants have preferred this appeal for enhancement of Award dated 14.08.2010 passed by learned District Judge-cum-MACT Judge-VII, Dhanbad, in Title (M.V.) Suit No. 52/2010, whereby learned Tribunal has granted compensation to the tune of Rs. 4,23,000/- out of which Rs. 50,000/- has already been paid to the claimants as ad interim compensation under Section 140 of the Motor Vehicles Act, as such balance amount of Rs. 3, 73,000/- is payable to the claimants along with interest @ 9% per annum from the date of filing of the claim application till the date of its realization.

Learned counsel for the appellants has submitted that the learned Tribunal has wrongly considered the income of the deceased to the tune of Rs. 3,000/- contrary to the evidence brought on record as the witnesses have categorically claimed the income of the deceased to be Rs. 9,000/- @ Rs. 300/- per day by selling chowmin, egg chop, meat chop, chicken chilli etc. Learned counsel for the appellants has further submitted that the future prospect of the deceased has not been considered 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, it ought to have been 40% as the deceased was aged 30 years and was self-employed person.

Learned counsel for the appellants has further submitted that under the conventional head, the learned Tribunal has only granted Rs. 5,000/- towards funeral expenses, Rs. 5,000/- towards loss of estate and Rs. 5,000/-towards loss of consortium, which is contrary to the judgment passed by the Apex Court in the case of Pranay Sethi (para-59.8), which ought to have been granted to the tune of 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 estate, as such, this Court may compute the compensation in view of the judgment passed by the Apex Court passed in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another (Para-8) reported in 2011 (14) SCC 639, 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.

Learned counsel for the appellants has thus submitted that this Court may compute just and fair compensation.

Learned counsel for the Insurance Company has submitted that this Court may not interfere with the old and settled case, in which Rs. 50,000/- has already been indemnified under Section 140 of the Motor Vehicles Act and after passing of award on 14.08.2013, amount of Rs. 4,89,989/- has already been indemnified on 21.11.2013.

Learned counsel for the Insurance Company has further submitted that though the Insurance Company has not preferred any appeal, but interest has been excessively granted @ 9% instead of 7.5% 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).

Learned counsel for the Insurance Company has further submitted that this Court has to consider that whether future prospect can be given along with interest? In humble submission of learned counsel for the Insurance Company, it is submitted that interest may only be awarded on the amount which has accrued, but not on the future prospect, as such whatever interest shall be awarded by this Court that should exclude the future prospect, which may be added after granting interest.

Learned counsel for the Insurance Company has further submitted that till date the Insurance Company has paid total amount of Rs. 5,39,989/- along with interest @ 9% per annum from the date of filing of the claim application.

Learned counsel for the appellant has submitted that the interest has been properly dealt in the case of Thazhathe Purayil Sarabi & Others Vs. Union of India & Another reported in (2009) 7 SCC 372 (Para-38) though the case arises out of Railway Accidents and Untoward Incidents (Compensation) Rules, which may profitably quoted hereunder:

"38. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period in which the same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principle relating to payment of interest on money claims."

Considering the rival submission of the parties the admitted fact is like that Santan Mirdha was going to Govindpur from Tundi on his motorcycle on 24.12.2009 at about 6:30 P.M. when he reached near B.Ed College, Tundi, Dhanbad, within Govindpur PS, a Sumo Victa vehicle bearing registration no. JH-10E-6368, being driven in rash and negligent manner, dashed his motorcycle as a result of which he sustained grievous injuries and died in course of treatment at PMCH, Dhanbad.

The deceased Sanatan Mirdha was 30 years old and was earning his livelihood by selling chowmin, egg chop, meat chop, chicken chilli etc. on thela at Govindpur main market and was earning Rs. 9,000/- pm @ Rs. 3,00/- per day and leaving behind his wife and two minor children.

The learned Tribunal has considered the income of the deceased to be Rs. 3,000/- per month in absence of any documentary evidence. The Apex Court recently in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), in absence of any documentary evidence, has considered the income of the deceased, who was Carpenter in that case and occurrence of the year 2002, to be Rs. 5,000/- per month, as such, this Court following the ratio laid down by the Apex Court in the case of Chameli Devi (Supra) also consider the income of the deceased as Rs. 5,000/- per month. So far future prospect is concerned, in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (para-59.4), since the deceased was below the age of 40 years, as such claimants are entitled for 40% of the future prospect and under the conventional head, Rs. 70,000/- has to be paid in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra)(para-59.8).

This Court calculates the compensation afresh which 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/-
Pranay Sethi (Supra)               = Rs. 84,000/-

1/3th deduction towards personal Rs. 84,000/- x 1/3 = Rs. 28,000/-

and living expenses
(Sarla Verma Supra)
Total Income                       Rs. 84,000/- - Rs. 28,000/-
                                   = Rs. 56,000/-

Multiplier of 17 (as the deceased Rs. 56,000/- x 17 = Rs. 9,52,000/-

was in the age group of 26-30
years) Sarla Verma (Supra)
Conventional Head                  Rs. 70,000/-
Pranay Sethi (Supra)
Total Compensation Amount          Rs. 9,52,000/- + Rs. 70,000/-
                                   = Rs. 10,22,000/-

The amount which has been awarded by the learned Tribunal shall be paid along with interest @ 7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharampal & Sons (Supra) from the date of filing of the claim application till the date of indemnifying the award i.e. 21.11.2013. Since the award was passed on 14.08.2013 and the appeal has been preferred after delay of 394 days on 11.12.2014, as such, Insurance Company is liable to pay interest on the enhanced amount from the date of issuance of notice i.e. 24.11.2018 till the date of indemnifying enhanced amount @ 7.5% per annum in view of the judgment passed by the Apex Court in the case of Thazhathe Purayil Sarabi (Supra).

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

(Kailash Prasad Deo, J.) Sunil/-