Markush Bhengra @ Markush Munda vs Sanjay Dubey
2021 Latest Caselaw 873 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 82 of 2015
                                 ......

1. Markush Bhengra @ Markush Munda

2. Rahil Topano

3. Rosh Bhengra

4. Deofil Bhengra ...... Appellants Versus

1. Sanjay Dubey

2. The Oriental Insurance Company Limited ......Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) For the Appellants : Mr. Rajiv Anand, Advocate For the Resp. No.2 : Mr. G.C. Jha, Advocate

05/Dated: 23/02/2021.

Heard, learned counsel for the appellants, Rajiv Anand and learned counsel for the respondent, Mr. G.C. Jha.

2. Learned counsel for the appellants has submitted that appeal has been preferred by the claimants/appellants for enhancement of the award dated 29.11.2014, passed by learned Principal District Judge-cum-Presiding Officer, M.A.C.T., Lohardaga in Compensation Case No.9 of 2008, whereby the claimants namely, Markush Bhengra @ Markush Munda, 2. Rahil Topano, 3. Rosh Bhengra and 4. Deofil Bhengra have been awarded compensation to the tune of Rs.13,75,360/- with simple interest @ 6% per annum from 01.04.2008 to the date of actual payment jointly to the claimants within 30 days from today, failing which the claimants will be at liberty to realize the aforesaid amount of compensation through the process of Court. The claimants have preferred this appeal jointly for enhancement though the appellant nos. 3 and 4 are minors, as such, they have preferred the appeal through their natural guardian and mother, Rahil Topano.

3. Learned counsel for the appellants has further submitted that deceased (John Bhengra s/o Markush Bhengra) died at the age of 19 years while working as a cleaner, in the truck bearing registration No. JH03B-7145, as the said vehicle reached near Tisia Village, got turn over on the road causing serious multiple internal and external injuries to the deceased. The deceased died instantly on 07.02.2007.

4. Police registered Kisko P.S. Case No.10 of 2007, corresponding to G.R. No.68 of 2007 registered under Sections 279, 337, 338 and 304A IPC and subsequently submitted chargesheet against the driver of the said truck.

5. Learned counsel for the appellants has further submitted that the learned

Tribunal has wrongly considered the income of the deceased and used wrong multiplier 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 at para 42, as well as wrong deduction has been made under the personal and individual expenses in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt) (Supra) at para 30, as instead of 1/3 th, half has been deducted.

6. Learned counsel for the claimants has submitted that P.W.1 has categorically stated in para 10, that income of the deceased was Rs.3,000/- per month from working as Khalasi and in para 20 he has categorically stated that deceased also earns from agriculture to the tune of Rs.2,000/- per month and thus, claimants have claimed income of the deceased to be Rs.5,000/- per month, which the learned Tribunal has wrongly considered Rs.3,000/- per month without any basis.

Learned counsel for the appellants in support of his submission has referred para 10 of the impugned judgment which may profitably be quoted hereunder;

"10. P.W.-1 has stated that the deceased was working as Khalasi and was returning from Ritchughutta Mines after loading the Bauxite when the vehicle turned turtled because of the negligent act of the driver the deceased was sitting under the cabin by the side of the driver who also fell down. Other persons also feel down. According to him deceased was well built and young person earning Rs.3,000/- from the said work of khalasi and also earns money by doing agriculture thus total earning was Rs.5,000/- per month. In cross-examination it was brought on record that the deceased was working as khalasi since last four months. Thus from the evidence of this witness it can be inferred that deceased was working as khalasi over the said vehicle. P.W.2 stated that the deceased died because the truck turned turtled deceased was working as khalasi. He was taken for treatment to hospital but was declared dead. According to him he was returning from Kisko to his house and had seen the accident. He also stated that he was being paid Rs.3,000/- as wages but not seen taking him wages. P.W.3 stated also regarding accident in which the deceased died. He was working as khalasi earning Rs.3,000/-. He also working in farming work and because of the negligent act of the driver the accident occurred. He had seen the accident while returning from Kisko. He stated further in cross-examination that at the time of accident he was in Tisia. He do not have any document regarding the work of khalasi by the deceased. P.W4 stated that while the vehicle was being driven rashly it turned turtle causing death of the deceased. He had seen the accident, driver fled away while the deceased died being crushed within cabin he was taken to hospital and died. In cross-examination the assertion of the witness regarding khalasi is not dispute."

7. Learned counsel for the appellants has further submitted that recently the judgment passed by the Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC, has held the income of a carpenter, who died in the year, 2002 to be Rs.5,000/- in absence of any

documentary evidence, as such, this Court may also follow the same ratio by considering the income of the deceased to be Rs.5,000/- i.e. Rs.3,000/- from the motor vehicle working as a Khalasi and Rs.2,000/- from the agriculture.

Learned counsel for the appellants has thus, submitted that this Court may consider the same.

8. Learned counsel for the appellants has further submitted that deduction towards personal and living expenses shall be 1/3rd but not 50%, though he was unmarried person but a large number of family members are dependent upon his income, which comprises his mother and minor brother and sister.

9. Learned counsel for the appellants has further submitted that in the case of Pranay Sethi (Supra), the case of Sarla Verma (Supra) has also been considered at para 37 where the reference is made with regard to deduction towards personal and living expenses of the deceased.

10. Learned counsel for the appellants has thus submitted that since a large number of minor non-earning sister and brother are dependent upon the income of the deceased, as such, deduction towards the personal and living expenses may be restricted to 1/3rd.

11. Learned counsel for the appellants has further submitted, that the future prospect has not been granted 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 and less amount i.e. Rs.7500/- under the conventional head has been paid instead of Rs.70,000/- (i.e. for loss of Estate to be Rs.15,000/-, for loss of consortium to be Rs.40,000/- and for funeral expenses to be Rs.15,000/-), which is contrary to the judgment passed by the Apex Court in the case of Pranay Sethi (supra) at para 59.8.

12. Learned counsel for the appellants has further submitted that the interest has been awarded @6% from the date of filing of the claim application till the date of actual realization and if the amount is not paid within two months then penal interest @ 10% per annum from the date of award till the date of actual realization.

Learned counsel for the appellants has submitted that it ought to have been @7.5% per annum from the date of filing of the claim application till the date of realization in view of the Section 171 of the MV Act coupled with 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 as the Apex Court has considered the prevalent rate of Bank interest at the time of accident and the same

has been quantified @ 7.5% per annum simple interest.

13. Learned counsel for the respondent/Insurance Company, Mr. G.C. Jha has submitted that income has been rightly considered by the learned Tribunal, which will be apparent from para 20 of the impugned award, wherein income from employer of the deceased (O.P. No.1) has been claimed to be Rs.3,000/- per month. Para 20 of the impugned judgment may profitably be quoted hereunder;

"20. According to the claim of the applicant the earning of the deceased was shown to be Rs.5,000/- which P.W.1 has described as Rs.3,000/- as wages from O.P. No.1 and 2000/- earning from agriculture. There is no evidence on record that on the demise of the deceased the applicants are employing any labour force to meet the labour vacuum caused by the death of the deceased thus it can't be said to be loss. Moreover it is held that the agricultural income is not a loss. In a case of tort it is the theory of loss which gives right for calculation. Since there is no evidence regarding loss in agriculture by the death of the deceased, thus that part of earning since is not a loss it has not been taken care for calculating the assessment of loss. Now their remains only Rs.3,000/- which the applicants claims to be loss and this alone can be taken for consideration as to what is the actual loss and what can be the compensation."

Learned counsel for the respondent/Insurance Company has thus, submitted that income has rightly been calculated, as such, this Court may not interfere with the award passed by the learned Tribunal.

14. Learned counsel for the appellants has replied to the objection raised by the learned counsel for the respondent-Insurance Company by referring para 10 of the impugned award and has submitted that no cross-examination has been made by the Insurance Company, that after death of the deceased, the family has not lost the income from the agriculture side. No question was raised, whether the agriculture income has been reduced or whether any external labourer is being employed to do the work of agriculture? as such, the objection which has been raised by the learned counsel for the respondent may not be considered by this Court.

15. Learned counsel for the respondent/Insurance Company has further submitted that the deduction towards personal and living expenses of the deceased which has been made @ 50% considering him to be a bachelor is just and proper, in view of the judgment passed by Apex Court in the case of Sarla Verma (Supra) at para 30.

Learned counsel for the respondent/Insurance Company has thus, submitted that, this Court may not interfere with the award passed by the learned Tribunal or in absence of any appeal preferred by Insurance Company against the impugned award, may consider the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in

2011 (14) SCC 639 at 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..........."

16. After hearing the learned counsel for the parties and looking into the facts and circumstances and the ratio in the case of Ranjana Prakash (Supra), this Court considered the impugned judgment particularly at para 20, which has been referred by learned counsel for respondent/Insurance Company and para 10 which has been referred by the learned counsel for the appellants, the first question that has to be adjudicated by this Court with regard to the income of the deceased. The claim has been made with regard to income of the deceased working as a Khalasi in a truck as Rs.3,000/- whereas O.P. No.1, the owner of the vehicle has stated in his written statement that he was paying him Rs.2,000/- per month.

So far the agriculture income is concerned, the consistent evidence remains on record, that deceased was earning as Rs.2,000/- per month from agriculture income but the learned Tribunal has considered the same in para 20 and held that there is no loss of agricultural income. In a case of tort it is theory of loss which gives right for calculation. Since there is no evidence regarding loss in agriculture by the death of the deceased, thus that part of earning since is not a loss, it has not been taken care for calculating the assessment of loss whereas at para 10 of the impugned order, the learned Tribunal has discussed the evidence of P.W.1, where categorical statement has been made that deceased was well built and young person earning Rs.3,000/- from the said work of Khalasi and also earns money by doing agricultural and thus total earning was Rs.5,000/- per month. In cross- examination it was brought on record, that deceased was working as a khalasi since last four months. Thus from the evidence of this witness it can be inferred that deceased was working as khalasi over the said vehicle, but was doing agriculture work too.

17. P.W.3 has stated that deceased was working as khalasi, earning Rs.3,000/- and he was also working in the farming work and because of the negligent act of the driver, the accident occurred.

18. Considering such submissions, this Court considers that it is very difficult to assess the income of a person, whose salary is not granted as per the documentary evidence.

Under the aforesaid circumstances, considering the ratio laid down by the

Apex Court in the case of Chameli Devi (Supra) where the Apex Court has considered the income of the deceased (a carpenter), who lost his life in the year, 2002 to be Rs.5,000/- in absence of any documentary evidence, this Court considers the income of the deceased in the particular case to be Rs.3,500/- per month died in the year, 2007 and no material has been brought on record by the Insurance Company to disbelieve agriculture income of the deceased.

19. From perusal of the impugned award, it appears that deceased was a young man, who used to help his father in doing agriculture work and for the last four months only, he was employed, as such, it cannot be said that he has no agriculture income. In absence of any contrary evidence brought on record by the Insurance Company, this Court is of the opinion that the ratio laid down by the Apex Court in the case of Chameli Devi (Supra) where in absence of any documentary evidence the Apex Court has considered the income of the carpenter, whose lost his life in the year, 2002 to be Rs.5,000/-, as such, considering the same, though it is very difficult for proper adjudication of the income, in such type of circumstances, but considering it to be benevolent legislation, this Court consider that the income of the deceased to be Rs.3,500/-. per month.

20. As such, the amount per annum will come to Rs.3,500/- x 12 = Rs.42,000/- (annual income).

21. Deceased was self-employed and died at the age of 19 years, as such, 40% future prospect be added in view of the judgment passed by the Apex Court in the case of Pranay Sethi (supra) at para 59.4.

As such, Rs.42,000/- + Rs.16,800/- = Rs.58,800/-.

22. Now the deduction shall be normally @ 50% in the case of death of a bachelor in view of the judgment passed by the Apex Court in the case of Sarla Verma (Supra), but larger Bench in the case of Pranay Sethi has considered the judgment of Sarla Verma (Supra) at para 37 referring para 32 of the same, which is quoted hereunder:-

"37...............

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

23. Considering the same, this Court is also of the opinion that though in the

present case mother is not widow, but there are one young brother and sister, as such, the deduction shall be 1/3rd.

Rs.58,800/- minus Rs.58,800/- x 1/3rd = Rs.39,200/-

24. So far multiplier is concerned, the age of the victim was 19 years, he falls in the category of multiplier of 18 in view of the judgment passed by the Apex Court in the case of Sarla Verma (Supra) at para 42, as such, the multiplier which has wrongly been used by the learned Tribunal as 15, the same shall be considered to be 18.

Total income of the deceased comes to Rs.39,200/- X 18 = Rs.7,05,600/-

25. Under the conventional head the amount of Rs.7,500/- has been paid i.e. loss of estate Rs.2,500/- and funeral expenses Rs.5,000/-, which is contrary to the judgment passed by the Apex Court in the case of Pranay Setthi (Supra) para 59.8 whereby Rs.70,000/- is to be given [i.e. loss of estate as Rs.15,000/-, loss of consortium as Rs.40,000/- and funeral expenses as Rs.15,000/-].

26. Total compensation amount Rs.7,05,600/- + Rs.70,000/- = Rs.7,75,600/-

As such, the final computation of calculation is as follows:-

      Income                    Rs.3500/- per month
      Annual Income             Rs.3500/- x 12 = Rs.42,000 /-
      Future Prospect @ 40%     Rs.42,000 /- + Rs.42,000 /- x 40% = Rs.58,800/-

1/3rd Deduction towards Rs.58,800/- minus 1/3rd of Rs.58,800/- = personal and living Rs.39,200/-

expenses Multiplier of 18 (as the Rs.39,200/-- x 18 = Rs.7,05,600/-.

      deceased was in the age
      group of 15-20 years)
      Conventional Head         Rs.70,000/-
      Total      Compensation Rs.7,05,600/- + Rs.70,000/- = Rs.7,75,600/-
      Amount

27. Accordingly the same is allowed with interest @ 7.5% per annum from the date of filing of the claim application till the date of realization as 6% interest is less and there is no provision of penal interest, which has been granted at the rate of 10%. Accordingly, that part is modified to that extent @ 7.5% from the date of filing of the claim application till the date of actual indemnifying the award.

28. Learned counsel for the appellants has submitted that no amount has been paid by the Insurance Company, as such, the appellant- Insurance Company may be directed to indemnify the award as per the order passed by this Court and if any, amount has been paid that shall be deducted by the Insurance Company.

29. As such, Insurance Company is directed to indemnify the award as per the

order passed by this Court and if any, amount has been paid that shall be deducted from the aforesaid amount.

30. Accordingly, the instant Miscellaneous Appeal is hereby allowed.

(Kailash Prasad Deo, J.) R.S