Ashok Swarnkar vs Govind Gandhi
2021 Latest Caselaw 909 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 286 of 2014
                          ........

1. Ashok Swarnkar

2. Smt. Renu Devi ..... Appellants Versus

1. Govind Gandhi

2. Rabindra Singh

3. National Insurance Company Limited.

4. Dwarika Prasad Swarnkar
5. Shankar Swarnkar                                  ..... Respondents

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

For the Appellants : Mr. Arvind Kumar Lall, Advocate. For the Respondents No. 3 : Mr. Alok Lal, Advocate.

........

10/24.02.2021 Heard, learned counsel for the appellants, Mr. Arvind Kumar Lall, learned counsel for the respondent no.3, Mr. Alok Lal and nobody appears on behalf of the owner and driver of the offending vehicle though Vakalatnama has been filed by Mr. Swapan Kumar Samanta.

Learned counsel for the appellants has submitted that appellants/claimants namely, Ashok Swarnkar and Smt. Renu Devi have preferred this appeal for enhancement of the award dated 26.05.2014, passed by Principal District Judge-cum-P.O. M.V.A.C.T., Giridih in M.V. Claim Case No.75 of 2012 whereby the claimants have been awarded compensation to the tune of Rs.4,15,000/- along with interest @ 9% per annum from the date of filing of the claim application till its realization.

The National Insurance Company (O.P. No.3) has been given right to recover all the paid compensation amounts from the owner of the offending vehicle bearing registration No.JH-12A-0783/O.P. No.1, Dwarika Prasad Swarnkar.

Learned counsel for the appellants has submitted that the owner and driver of the offending vehicle namely, Dwarika Prasad Swarnkar and his son Shankar Swarnkar, being the driver have not preferred any appeal against the same impugned order, as such, this Court may consider the case of the claimants for enhancement.

Learned counsel for the appellants has submitted that deceased, Dhruv Kumar @ Dhrup Kumar Swarnkar lost his life in a motor accident on 18.06.2012 at 3:00 P.M. while he was travelling as a pillion rider on Yamaha Crux Motorcycle bearing registration No.JH-11B-5381, the said motorcycle was driven by Shankar Swarnkar. When the motorcycle reached by the side of road in Village - Karmatand, a Mahindra Commander Jeep bearing registration No. JH-12A-0783 coming towards West Telaiya, dashed and collided with the motorcycle from the opposite direction.

Learned counsel for the appellants has submitted that both the injured were brought to the hospital. FIR has been lodged against the driver of the Mahindra Commander Jeep bearing registration No.JH- 12A-0783 as Dhanwar P.S. Case No.144/2012 dated 18.06.2012 under Sections 279/337/338/304(A) IPC.

Learned counsel for the appellants has submitted that learned Tribunal has not considered the income of the deceased, who was a highly skilled goldsmith died at the age of 21 years leaving behind his old parents as dependent. The claimants have claimed the income of the deceased to be Rs.10,000/-, which has wrongly been considered by the learned Tribunal as Rs.4,000/- per month in absence of any documentary evidence.

Learned counsel for the appellants has submitted that present case is for the accident dated 18.06.2012 whereas Hon'ble Apex Court in the case of Chameli Devi Vs. Jivrail Mian reported in 2019 (4) TAC 724 SC, in absence of any documentary evidence the Apex Court has considered the income of the deceased to be Rs.5,000/-, where the deceased was a carpenter and the accident took place in the year 2002, but in the present case, accident is of year 2012 and deceased was a highly skilled goldsmith. Normally the making charge of gold jewellery is taken at the rate of 12 to 16 % of price of gold, as such, this Court may consider the income of the deceased, on the basis of calculation made after considering that though the work of a goldsmith is lesser, but it requires more perfection, as such, his charge cannot be compared with the charge of a carpenter,

as such, this Court may consider the income of deceased to be Rs.10,000/- per month.

Learned counsel for the appellants has submitted that future prospect of the deceased has not been considered by the learned Tribunal contrary to the judgment passed Apex Court in the case of Kirti & Anr. etc. Vs. Oriental Insurance Company Ltd. decided the issue in Civil Appeal Nos.19-20 of 2021 on 05.01.2021 as well as National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 Para-59.4 and as such, the claimants / appellants are entitled for future prospect @ 40 %.

Learned counsel for the appellants has further submitted that under the conventional head the Tribunal has only granted Rs.7,000/- that is Rs.5,000/- for mental agony & pain and suffering and Rs.2,000/- for funeral expenses instead of Rs.70,000/- i.e. Rs.15,000/- for loss of estate, Rs. 40,000/- for loss of consortium and Rs. 15,000/- for funeral expenses in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 Para-59.8, as such, the amount may be enhanced.

Learned counsel for the Insurance Company, Mr. Alok Lal has submitted that though the right to recover has been granted by the learned Tribunal in favour of the Insurance Company, after paying the same to the claimants and no appeal has been preferred by the Insurance Company or by the owner of the offending vehicle, but while computing the compensation, this Court may consider that consideration made by the learned Tribunal holding Rs.4,000/- as monthly income of the deceased against the claim of Rs.10,000/- is based on reasoning, which may not be interfered, as no contrary evidence has been brought on record, to show that deceased was highly skilled goldsmith, as such, this Court may not interfere with the same. However, learned counsel for the respondents has fairly submitted that future prospect and under the conventional head, the appellant's claimed is in accordance with judgment passed by Apex Court.

Learned counsel for the respondent no.3 has vehemently opposed that if the amount is enhanced, then this Court may consider 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 of 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.

While determining the just and fair compensation, this Court may also consider the interest awarded by the learned Tribunal to the tune of 9% which ought to have been 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), as such, this Court instead of interfering / opening a Pandora box may consider the compensation awarded by the learned Tribunal to be just and fair compensation and dismiss the appeal.

Considering the rival submissions of the parties, the admitted fact of the case is Dhruv Kumar @ Dhrup Kumar Swarnkar aged about 21 years died in motor accident on 18.06.2012 leaving behind his parents as dependents. The learned Tribunal has given right to recover in favour of the Insurance Company, as such, this Court is not interfering with the same, as no appeal has been preferred by the owner of the offending vehicle against the said observation of the Tribunal.

This Court while computing the just and fair compensation in view of the ratio laid down by the Apex Court in the case of Ranjana Prakash & Others (Supra), this Court has to first adjudicate the income of the deceased. As per the claimants deceased was a highly skilled goldsmith and his income was Rs.10,000/- per month and to that effect C.W.-1, Ashok Swankar, father of the deceased and C.W.- 2, Pradip Swarnakar have been examined.

It is admitted position that no documentary evidence in respect to the income of the deceased to the tune of Rs.10,000/- per month

has been brought on record and no documentary evidence has been brought on record to show that deceased was a highly skilled goldsmith, as such, the learned Tribunal did not accept the income of the deceased to the tune of Rs.10,000/- and consider of the income of the deceased to be Rs.4,000/-. This Court is not agreed with the reasoning given by the learned Tribunal for two reasons, (i) in the case of Chameli Devi (supra) the Apex Court has considered the income of a carpenter, who lost his life in the year 2002 and in absence of any documentary evidence. The income has been considered as Rs.5,000/- and as such, by no stretch of imagination, the income of the deceased in present claim can be less then Rs.5,000/-, in case of a goldsmith, (ii) while considering the income of the goldsmith in absence of documentary evidence, this Court has to consider, 2-3 (two-three) factors (a) making charge of a goldsmith

(b) Government notification of highly skilled labourer, which is the minimum wages, but if a swarnkar is doing his private work, he is certainly earning more amount as making charge of gold jewellery, which is as per the prevalent rate in the market @ 12% of the cost of gold. The rate of gold was Rs.30,000/- per 10 grams in the year 2012, as such, 12% of the same is considered as making charge of gold jewellery in case of a skilled goldsmith, which comes to Rs.360/- per grams. Further, this Court takes average of minimum wages i.e. Rs.180 + D.A. as 8.4% then it comes to Rs.195/-. Now after adding both i.e. making charge and average of minimum wages total comes to Rs.360 + 195/- =555/- / 2 = 277.5/- X 26 days = 7215/- per month.

Accordingly, this Court is computing the compensation afresh:-

Income                            Rs. 7,215/- per month
Annual Income                     Rs. 7,215/- x 12 = Rs. 86,580/-
40% future prospect               Rs. 86,580/- + Rs. 21,645/-
Pranay Sethi (Supra)              = Rs. 1,08,225/-

1/4th deduction towards personal Rs. 1,08,225/- x 1/4 = Rs. 27,056/-

and living expenses
(Sarla Verma Supra)
Total Income                      Rs. 1,08,225/- - Rs. 27,056/-
                                  = Rs. 81,169/-

Multiplier of 18 (as the deceased Rs. 81,169/- x 18 = Rs. 14,61,042/-

was in the age group of 21-25
years) Sarla Verma (Supra)
Conventional Head                  Rs. 70,000/-
Pranay Sethi (Supra)
Total Compensation Amount          Rs. 14,61,042/- + Rs. 70,000/-
                                   = Rs. 15,31,042/-

The entire amount as enhanced shall be paid with interest @ 7.5% per annum, from the date of filing of the claim application till the date of indemnifying the award dated 18.07.2014 in view of the judgment passed by the Apex Court in the case of Dharampal & Sons (Supra). The amount already indemnified by the Insurance Company shall be deducted and the balance amount shall be paid to the appellant / claimants. It is expected that Insurance Company shall indemnify the award within a reasonable time and recover the same from owner of the vehicle.

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

(Kailash Prasad Deo, J.) Jay/-