Sujata Mishra vs The National Insurance Co Ltd
2021 Latest Caselaw 916 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Miscellaneous Appellate Jurisdiction)
                          M.A. No. 68 of 2015
                                 ......

1. Sujata Mishra

2. Basudeo Mishra ...... Appellants Versus

1. The National Insurance Co Ltd.

      2. Pramod Kumar
      3. Azad Ansari                                      ......Respondents

      CORAM:        HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                    (Through : Video Conferencing)
      For the Appellants               : Mr. S.K. Laik, Advocate
      For the Respondent no.1          : Mr. Manish Kumar, Advocate

05/Dated: 24/02/2021.      I.A. No.889 of 2015

Learned counsel for the appellants has submitted that there is delay of 203 days in preferring the appeal and for condonation of the same, I.A. No.889 of 2015 has been preferred, which remains pending before this Court and notice was issued to the respondents on 05.02.2018, as such, this Court may condone the delay as no counter-affidavit has been filed by the Insurance Company.

Learned counsel for the Insurance Company has opposed the same and submitted that impugned order/judgment has been passed on 23.04.2014, the awarded amount passed by the learned Tribunal along with interest has already been indemnified on 16.12.2014 and thereafter the appeal was preferred with delay of 203 days for which interlocutory application has been filed for condonation of delay vide I.A. No.889 of 2015, but the notice was issued by co- ordinate Bench of this Court to the Insurance Company on 05.02.2018, as such, this period may be considered by this Court, while granting interest, if enhancement is allowed by this Court.

Considering rival submissions of the parties and after going through the materials available on record and looking into the facts and circumstances of the case, it appears that the appeal was preferred against the impugned order/judgment dated 23.04.2014 with delay of 203 days for which interlocutory application vide I.A. No.889 of 2015 has been filed for condonation of delay and the awarded amount passed by the learned Tribunal along with interest has already been indemnified on 16.12.2014. The notice has been issued by this Court to the Insurance Company on 05.02.2018, as such, this Court considering it to be a benevolent legislation, is inclined to condone the delay, but with condition that in case, the compensation amount is enhanced, the claimants will not be entitled for any interest for the period from 17.12.2014 till 05.02.2018 as interest cannot

be paid because of laches of the claimants/appellants.

Accordingly I.A. No. 889 of 2015 is allowed.

M.A. No. 68 of 2015 Heard, learned counsel for the parties.

2. Learned counsel for the appellants has submitted that claimants, namely,

1.Sujata Mishra and 2. Basudeo Mishra are the appellants before this Court. They have preferred this appeal for enhancement of the award dated 23.04.2014, passed by learned District Judge-Ist-cum -Motor Accident Claims Tribunal Bokaro in Title (M.V.) Suit No.30/2009, whereby the claimants have been awarded compensation to the tune of Rs.14,34,316/- along with simple interest @ 6% per annum from the date of order within two months, failing which the claimants will be entitled to get the award satisfied through the process of law.

3. Learned counsel for the appellants has submitted that the deceased (Priya Ranjan Mishra) was going to Bhagalpur from Bokaro in his car bearing Registration No.WB42L-0896 at 2.45 A.M. on 19.08.2008. When he reached near Mihijam Main Road, Saki Pather More, the driver of a Tata Maxi bearing Registration No.JH15C-4324, driving rashly and negligently from the opposite direction, dashed the Maruti Car causing multiple injuries to the deceased and he was admitted at Sadar Hospital, Jamtara. For better treatment, he was referred to to PMCH, Dhanbad and during course of the treatment, he died.

4. Learned counsel for the appellants has submitted that deceased was a businessman, died at the age of 27 years, whose income has been rightly calculated by the learned Tribunal to the tune of Rs.14,508/-, but the Future Prospect of the deceased @40% 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.has not been considered.

5. Learned counsel for the appellants has further submitted that so far deduction as well as multiplier is concerned, the appellant has nothing to say on this, but under the conventional head, the learned Tribunal has paid less amount that is Rs.4,500/- instead of Rs.70,000/- (Loss of Estate- Rs.15,000/-, Loss of Consortium Rs.40,000/- and Funeral Expense- Rs.15,000/-) in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) at Para- 59.8.

6. Learned counsel for the appellants has further submitted that interest has been awarded @6% from the date of the order, but in view of Section 171 of the M.V. Act which may profitably be quoted hereunder :-

"171. Award of interest where any claim is allowed- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shallalso be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."

The reason has to be assigned by the learned Tribunal for granting interest either from the date of filing, date of admission of issue, date of closure of evidence or date of award otherwise it should have been from the date of filing @7.5% per annum, in view of 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, wherein the Apex Court has considered the interest on the basis of prevalent bank rate of interest on the date of accident or the same has been quantified to be @7.5% simple interest per annum.

Learned counsel for the appellants has thus, submitted that amount of compensation may be enhanced.

7. Learned counsel for the respondent-Insurance Company has opposed the prayer and submitted that so far with regard to non-consideration of Future Prospect of the deceased and less amount paid under the conventional head are concerned, this Court may consider the judgment passed by the Apex Court, but it is apparent that there was a head-on collision between the vehicles, which may be considered for deduction towards contributory negligence even in absence of any appeal preferred by Insurance Company and considering the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 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. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

8. Learned counsel for the respondent-Insurance Company has further submitted that though the issue has been framed, but the learned Tribunal on the basis of evidence brought on record has discussed the issue in Para-9 at Page No.7 and has held that the deceased (Priya Ranjan Mishra) died in a motor accident as the same happened due to rash and negligent driving of the both the vehicles i.e. Maruti Van bearing Registration No.WB42L-0896 and Tata Maxi

bearing Registration No.JH15C-4324, but did not make any deduction, even after this finding, as such, considering the judgment passed by the Apex Court in the case of Ranjana Prakash (supra), this Court may consider the same while determining the compensation to be just and fair compensation, as quantum of compensation has been assailed by the claimants/appellants.

9. Learned counsel for the respondent-Insurance Company has submitted that so far the vehicles are concerned, both the vehicles were insured before the respondent-National Insurance Company Limited. The awarded amount passed by the learned Tribunal has already been indemnified by the Insurance Company along with the interest as per the award passed by the learned Tribunal dated 23.04.2014 by indemnifying the same on 16.12.2014, as such, delay which has been cause by the appellant from 16.12.2014 till 05.02.2018, the same cannot be fastened upon the Insurance Company by directing to pay the interest, as such, this Court may consider the same and dismiss the interlocutory application.

10. Learned counsel for the appellants has fairly submitted that since no deduction has been made under the contributory negligence though there is finding by the learned Tribunal. Appellants have not preferred any appeal for setting aside this part of the finding.

11. After hearing learned counsel for the parties and after going through the materials available on record and looking into the facts and circumstances of the case, it appears that there is no much conflict in the submission of the parties. The Future Prospect of the deceased (Priya Ranjan Mishra), who was aged about 27 years and unmarried has not been considered by the learned Tribunal contrary to the judgment passed by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 as well as recently judgment passed by the Apex Court in the case of Kirti & Anr. Etc. vs. Oriental Insurance Company Ltd. passed in Civil Appeal Nos.19-20 of 2021 decided on 05.01.2021, as such, this Court is inclined to grant Future Prospect to the claimants @40% as the deceased died at the age of 27 years which is below the age of 40 years.

12. So far amount under the conventional head is concerned, this Court has perused the impugned award and found that less amount has been paid by the learned Tribunal as Funeral expense- Rs.2,000/-, loss of estate-Rs.2,500/- which is also contrary to the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) at Para 59.8, which ought to have been as loss of Estate- Rs.15,000/-, loss of Consortium- Rs.40,000/- and Funeral expense- Rs.15,000/-

i.e. total Rs.70,000/- and the interest ought to have been paid with effect from date of filing @ 7.5 per annum till the date of indemnifying the award i.e. 16.12.2014 and thereafter from 05.02.2018 till the date of indemnifying the amount, if the amount is enhanced, but after making such calculation, the deduction has to be made because of contributory negligence of both the vehicles to the tune of 50%, as finding has been recorded by the learned Tribunal, that accident happened due to rash and negligent driving of both the vehicles and the deceased was himself the driver, as such, this Court is inclined to deduct 50% towards contributory negligence.

13. This Court is conscious of the ratio laid down by the Apex Court in the Case of Ranjana Prakash (Supra) at Para-8 that, if the amount is not enhanced in an appeal preferred by the claimants after determining the fair and just compensation instead of deducting the amount of the claimants in an appeal preferred by the claimants, the High Court should dismiss the appeal without making any deduction.

14. It is admitted position that the Insurance Company has not preferred any appeal for deduction, as such, this Court will consider the compensation and then will decide, if the amount is increased, the enhanced amount will be paid and if the amount will be decreased, nothing will be reduced except that appeal will stand dismissed in view of the judgment passed by the Apex Court in the case of Ranjana Prakash (Supra) at para 8.

15. This Court considers that the learned Tribunal has rightly considered the income of the deceased to be Rs.14,508/- per month.

Annual income = Rs.14,508/- x12=Rs.1,74,096/-

16. Further 50% deduction towards personal and living expenses in view of the judgment of Sarla Verma (Supra) at Para-30, then Rs.1,74,096/- minus Rs.87,048/-=Rs. 87,048/-.

17. Now multiplier of 17 will be used as deceased died below the age of 30 years, then Rs. 87,048/-x17=Rs.14,79,816/-

Further, Future Prospect @40% in view of the judgment of Pranay Sethi (Supra) at Para 59.4, then 14,79,816/- Plus Rs.5,91,926+Rs.20,71,742/-.

18. Thereafter 50% deduction for contributory negligence then amount comes to Rs.10,35,871/-.

Further Rs.70,000/- is to be added under the conventional head, then it comes to Rs. 10,35,871/- + Rs.70,000/- = Rs.11,05,871/-.

19. Since the amount is reduced after calculating the just and fair

compensation in view of judgment of Ranjana Prakash (supra), but in absence of any appeal preferred by the Insurance Company, the amount cannot be reduced.

20. Accordingly, the instant Misc. Appeal stands dismissed without any interference by this Court.

(Kailash Prasad Deo, J.) sandeep/