Durgi Devi @ Gandhi Devi & Another vs Gupteshwar Singh & Another
2021 Latest Caselaw 876 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 31 of 2015
                         ........

Durgi Devi @ Gandhi Devi & Another .... ..... Appellants Versus Gupteshwar Singh & Another .... ..... Respondents

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

For the Appellants : Mr. Rajiv Kumar Karn, Advocate For the Respondent No. 2 : Mr. Alok Lal, Advocate ........

05/23.02.2021.

Heard, learned counsel, Mr. Rajiv Kumar Karn on the instruction of learned counsel for the appellants, Mr. Mukesh Bihari Lal and learned counsel for the respondent no. 2, Mr. Alok Lal. I.A. No. 3757 of 2015 Learned counsel for the appellants has submitted that there is delay of 17 days in preferring the appeal as the claimants are poor widow lady and minor children and the reason for the same has been stated 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 vehemently opposed the prayer and submitted that the instant appeal has been preferred on 20.01.2015 against the award dated 27.09.2014 with delay of 17 days. The notice has been issued in the limitation matter as well as in the main appeal vide order dated 03.10.2018 and thereafter, Insurance Company has put appearance on 30.11.2018, as such, this Court may consider the delay while allowing the enhancement appeal and granting interest to the claimants / appellants.

Considering the rival submission of the parties, looking into facts and circumstances of the case, it is benevolent legislation, as such, the delay of 17 days in preferring the appeal is hereby condoned as claimants are poor widow and minor children, but since the Insurance Company has to deal with the public money, the money cannot be given in very causal manner, as such, interest shall not be granted from the date of filing of the appeal till the date

of issuance of notice i.e. 31.10.2018 upon the Insurance Company.

On this condition, I.A. No. 3757 of 2015 is allowed. M.A. No. 31 of 2015 The matter is heard on merits on the joint submission of the parties.

Learned counsel for the appellants has submitted that the present appeal has been preferred by the claimants namely, (1) Durgi Devi @ Gandhi Devi, wife of Late Sukar Singh and Minor Ravi Singh, son of Late Sukar Singh, represented through his natural guardian mother Durgi Devi @ Gandhi Devi for enhancement of Award dated 27.09.2014 passed by learned District Judge-V-cum- MACT at Dhanbad in Title (M.V.) Suit No. 03/2009, whereby the claimants have been awarded compensation to the tune of Rs. 5,31,600/- after deducting amount of Rs. 50,000/- which has already been paid under Section 140 of Motor Vehicles Act to be paid within 30 days from the date of Award, failing which interest @ 6% per annum will be chargeable on the said amount till its realization.

Learned counsel for the appellants has submitted that Sukar Singh died in motorcycle accident on 01.07.2006 at 4:30 P.M. near Kashitand More, G.T. Road, P.S. - Barwadda, Govindpur, District - Dhanbad due to rash and negligent driving of the driver of Mahindra Bolero No. WB-33A-9154, which was insured before the New India Assurance Company Limited. The Insurance Company has not preferred any appeal and it is an admitted position that the vehicle was insured vide Policy No. 512102/31/05/01/00014872.

Learned counsel for the appellants has submitted that Sukar Singh was fast food vendor and used to sell chowmin, egg roll, chicken chilly etc. in main bazar Chandankiyari and was earning Rs. 300/- per day from his business. The claimants have claimed the income of the deceased to be Rs. 9,000/- per month, but the learned Tribunal has wrongly considered the income of the deceased to be Rs. 3,000/- per month and the learned Tribunal has granted less amount i.e. Rs. 20,000/- under the conventional head contrary to the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (para-59.8)

reported in (2017) 16 SCC 680, 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.

Learned counsel for the appellants has submitted that recently the Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), that in absence of any documentary evidence considered the income of the deceased, who was Carpenter and died in the year 2002, to be Rs. 5,000/-, as such this Court may also consider the income of the deceased to be Rs. 5,000/- as the case is of the year 2006.

Learned counsel for the appellants has further submitted that the interest @ 6% per annum after 30 days of the award is in conflict with the provisions of law as laid down under Section 171 of the Motor Vehicles Act coupled with 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), where the Apex Court has considered the interest on the basis of prevalent bank rate of interest or quantify the same @ 7.5% per annum simple.

Learned counsel for the appellants has further submitted that nothing can be attributed to the appellant for delay, as no reason has been assigned by the learned Tribunal that the delay in disposal of the claim application is attributed to the claimant, as such, in view of Section 171 of the Motor Vehicles Act the interest ought to have granted from the date of filing of the claim application before the learned Tribunal.

Learned counsel for the Insurance Company has vehemently opposed the prayer and has submitted that if this Court consider the judgment of Chameli Devi (Supra), the amount can be enhanced to Rs. 5,000/-, but in that case, future prospect should not be given along with interest as because the same cannot accrue on future prospect.

Considering the rival submission of the parties, looking into facts and circumstances of the case and the ratio laid down by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639

(Para-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.

Considering the same, this Court examine the record. The deceased Sukar Singh was a fast food vendor and claims to earn Rs. 9,000/- per month, but in absence of any documentary evidence, the Tribunal has considered it to Rs. 3,000/- per month.

In my considered view and the ratio laid by the Apex Court in the case of Chameli Devi (Supra), this Court consider that the income of the deceased ought to have been Rs. 5,000/- per month in absence of any documentary evidence. Accordingly, this Court consider the income of the deceased Sukar Singh to be Rs. 5,000/-. So far future prospect is concerned, in view of judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.4), the deceased died at the age of 20 years, as such, the future prospect ought to have been 40% as he died below the age of 40 years.

So far the conventional head is concerned, it ought to have been 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 in view of the judgment passed by the Apex Court in the case of Pranay Sethi (para-59.8).

The interest ought to have been paid @ 7.5% from the date of filing of the claim application, if no reason, otherwise has been assigned by the learned Tribunal, as such, the final computation of calculation is like that :-

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 18 (as the deceased Rs. 56,000/- x 18 = Rs. 10,08,000/-

was in the age group of 15-20
years) Sarla Verma (Supra)

Conventional Head                 Rs. 70,000/-
Pranay Sethi (Supra)
Total Compensation Amount         Rs. 10,08,000/- + Rs. 70,000/-
                                  = Rs. 10,78,000/-

The amount which has been awarded by the learned Tribunal shall be paid along with interest @ 7.5% per annum from the date of filing of the claim application till the date of indemnifying the award and thereafter from the date is issuance of notice from 31.10.2018 till the date of indemnifying on the enhanced amount.

Learned counsel for the Insurance Company, Mr. Alok Lal has submitted that out of total enhanced amount, Rs. 5,31,600/- has already been paid by the Insurance Company and Rs. 50,000/- has been received by the claimants as ad-interim relief, as such, the same shall be deducted from the enhanced amount i.e. Rs. 10,78,000/-, thus, it comes to Rs. 10,78,000/- - Rs. 5,31,600/- - Rs. 50,000/- = Rs. 5,96,400/-.

Accordingly, Insurance Company is directed to indemnify the amount of Rs. 5,96,400/- along with interest @ 7.5% per annum from 31.10.2018 till the date of actual indemnifying the award.

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

(Kailash Prasad Deo, J.) Sunil/-