Jharkhand High Court
Divisional Manager vs Chinta Devi on 8 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 387 of 2013
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Divisional Manager, National Insurance Co. Ltd., Ranchi ...... Appellant
Versus
1. Chinta Devi, W/o Late Mosafir Prasad Yadav
2. Deepak Kumar Sinha, S/o D.L. Prasad ......Respondents
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
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For the Appellant : Mr. Ganesh C. Jha, Advocate
For the Respondent no.1 : Mr. Sanjay Kr. Pandey, Advocate
......
11/Dated: 08/01/2021.
1. Heard, learned counsel for the parties.
2. Appellant- National Insurance Co. Ltd. has preferred this appeal against
judgment/award dated 30.05.2013 passed by learned District & AddI. Sessions
Judge-II cum Motor Vehicle Accident Claims Tribunal, Koderma in Claim Case
No.37 of 2010 whereby the claimant has been awarded excess compensation by
computing wrong calculation by the learned Tribunal.
3. Learned counsel for the appellant- Insurance Company has submitted that
without deducting the income tax component of the salary of the deceased,
learned Tribunal has calculated the compensation and wrongly deducted towards
the personal and living expenses of the deceased without considering the actual
number of dependents upon the deceased in view of the judgment passed by the
Hon'ble Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi
Transport Corporation & another, reported in (2009) 6 SCC 121 at para 30.
4. Learned counsel for the appellant- Insurance Company has further submitted
that learned Tribunal has wrongly calculated the awarded amount to the tune of
Rs.48,70,659/- along with interest @ 6% per annum from the date of filing of the
claim application till the date of its realization within two months, failing which
the claimant is entitled to recover the awarded amount through process of court
with a penal interest @ 9% per annum from the date of filing of claim
application.
5. Learned counsel for the appellant- Insurance Company, Mr. G.C. Jha has
submitted that provision of the penal interest is not available in the Act, as such,
learned Tribunal has wrongly computed the compensation amount.
6. Learned counsel for the respondent no.1, Mr. Sanjay Kumar Pandey has
submitted that though no appeal has been preferred by the claimant for
enhancement of the award but the claim application cannot be assailed on the
ground of quantum of compensation, as such, this Court may dismissed the
appeal preferred by the Insurance Company.
7. Learned counsel for the appellant in support of his submission referred 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 and has
submitted that, this Court may consider the fair and just compensation.
The judgment of the Hon'ble Apex Court in the case of Ranjana
Prakash (supra) para 8 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, Mr. G.C. Jha for the appellant- Insurance Company has
also assailed the impugned award on the ground of contributory negligence. The
learned Tribunal has not considered the same as FIR and Charge-sheet has
already been filed against the offending vehicle (truck) bearing registration no.
JH02N-2607, as such, the same is being assailed herein before this Hon'ble Court.
9. The admitted case of the claimant is as follows:-
That deceased- Mosafir Prasad Yadav was riding his motorcycle wearing
halmet and was going from Koderma to Bishunpur on his motorcycle on NH 31
when the truck bearing registration no. JH02N-2607 which was coming from
Rajauli collided with the motorcycle near Jamsoti Nala in the District of Koderma
on 19.06.2010 at about 2:30 P.M. and deceased- Mosafir Prasad Yadav died on
the spot.
It appears that deceased- Mosafir Prasad Yadav was a teacher in Utkarmit
Middle School, Block- Pusahan, Jainagar, District- Koderma and was getting
monthly salary of Rs.26,661/-. The age of the deceased has been considered by
the learned Tribunal on the basis of postmortem report as 45 years and deceased
left behind his dependents as wife (1) Chinta Devi and four sons namely, (2) Anuj
Kumar, (3) Randhir Kumar, (4) Manish Kumar and (5)Ashish Ranjan and two
unmarried daughters namely, (6) Arti Kumari and (7) Neha Kumari, as such,
family of the deceased comprises of seven dependents.
10. Since the contributory negligence has been assailed before this Court, but no
evidence has been brought on record by the appellant, as such, the finding
recorded by the learned Tribunal is affirmed by this Court as the deceased was
travelling on his motorcycle wearing helmet and FIR and charge-sheet have been
filed only against the offending truck bearing registration no. JH02N-2607.
11. The monthly income of the deceased from service as a teacher in Utkarmit
Middle School, Block- Pusahan, Jainagar, District- Koderma to the tune of
Rs.26,661/- is multiplied by 12, which comes to Rs.3,19,932/- per annum, but in
view of the judgment passed by the Hon'ble Apex Court in the case of National
Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680
para 59.4 component of tax ought to have been deducted and it has been
deducted herein which comes to the tune of Rs.16,000/-, thus the income
remains as Rs. 3,03,932/-. Because of the size of the family and the number of
the dependents to be seven, the personal and individual living expenses of the
deceased is deducted as 1/5th in view of the judgment of Sarla Verma (Supra).
Thus, the income comes to Rs.2,43,146/- for consideration of computation of
compensation. The deceased died at the age of 45 years and as per the judgment
passed by the Hon'ble Apex Court in the case of Sarla Verma (Supra) at para 42,
multiplier of 14 is applicable for the deceased aged between 41-45 years, as such,
this Court considers it to be 14. Thus, total amount comes to Rs.2,43,146/- x 14 =
Rs.34,04,014/-.
12. Further since the deceased had a permanent job and he falls in the category of
40 to 50 years, 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 59.3, future prospect of the deceased should be 30%, meaning
thereby, Rs.34,04,044/- + Rs.34, 04,044/- x 30% [=Rs.10,21,213/-] =
Rs.44,25,257/- + Rs.70,000/- under the conventional head in view of the
judgment passed by the Apex Court in the case of Pranay Sethi (Supra) at Para
59.8 (for the loss of Estate Rs.15,000/-, for loss of consortium Rs.40,000/- and
for funeral expenses Rs.15,000/- is to be given), then total compensation
comes to Rs.44,95,257/-
13. As such, compensation of Rs.44,95,257/- along with interest @ 7.5% in
view of Section 171 MV Act and in view of the judgment passed by the Apex
Court in the case of Dharmpal and Sons Vs. UP State Road Transport
Corporation, reported in 2008 (4) JCR 79 SC, which shall be paid to the
claimants along with interest @ 7.5% from the date of filing of the claim
application till the date of realization within a reasonable period.
The amount already paid under Section 140 MV Act, if any, shall be
deducted from the aforesaid amount.
14. The new calculation chart would be as follows :-
Income Rs.26,661/- per month
Annual Income Rs.26,661/- X 12 = Rs.3,19,932/-
minus Rs.16,000/- (as Tax component)
= Rs.3,03,932/-
1/5th deduction towards Rs.3,03,932/- minus Rs.3,03,932/- x
personal and living 1/5th = Rs.2,43,146/-
expenses
Multiplier as 14 Rs.3,03,932/- x 14 = Rs.34,04,044/-
Future Prospect @ 30% Rs.34,04,044/- + Rs.34,04,044/- x
30% [Rs.10,21,213/-] = Rs.44,25,257/-
Conventional Head Rs.70,000/-
Total Compensation Rs.44,25,257/- + Rs.70,000/- =
Amount Rs.44,95,257/-.
15. Accordingly, the impugned judgment of award is set aside.
16. The instant Misc. Appeal stands allowed.
17. The statutory amount deposited for preferring the appeal to the tune of
Rs.25,000/- shall be remitted to the Court below by the learned Registrar
General of this Court within a period of four weeks.
18. The entire amount shall be disbursed in the account of wife (Chinta Devi)
of the deceased and she will file an affidavit on behalf of her minor children as
well as she will also produce the affidavit on behalf of their major children that
the entire amount is being paid to wife (Chinta Devi) of the deceased for all
the dependents which shall be apportioned amongst them.
19. It has been submitted that out of compensation of Rs.44,95,257/-, the
Insurance Company in compliance of order dated 13.01.2017 passed by this
Court has deposited Rs.20,00,000/- before the learned Tribunal, as such, the
balance amount shall be paid to the claimants within a reasonable period, as
the accident is of dated 19.06.2010.
(Kailash Prasad Deo, J.)
sandeep/R.S/
