Ambika Devi & Others vs Divisional Manager
2021 Latest Caselaw 147 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 68 of 2014
                          ........

Ambika Devi & Others                       .... ..... Appellants
                              Versus
Divisional Manager,

The Oriental Insurance Company Ltd., Bokaro & Another .... ..... Respondents

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

For the Appellants : Mr. N.K. Sahani, Advocate. For the Respondent No.1 : Mr. Pratyush Kumar, Advocate.

........

11/12.01.2020.

Heard, learned counsel for the appellants, Mr. N.K. Sahani. Claimants namely, (i) Ambika Devi, wife of Late Satrughan Mondal (ii) Bishnu Pada Mondal, son of Late Satrughan Mondal,

(iii) Suresh Mondal, son of Late Shatrughan Mondal and Rita Kumar, daughter of late Shatrughan Mondal are the appellants before this Court and they have preferred this appeal for enhancement of the Award, which has been passed against the Oriental Insurance Company Limited in terms of Award dated dated 02.05.2013 passed by learned District Judge 1st - cum - M.A.C.T., Bokaro in T.M.V. No. 87/2009, whereby the claimants have been awarded compensation under Section 166 of the Motor Vehicles Act to the tune of 21,29,420/-. The Oriental Insurance Company Limited / opposite party no. 2 / respondent no. 1 herein has been directed to indemnify the compensation amount within two months from the date of order.

Learned counsel for the appellants has submitted that the deceased Shatrughan Mondal was returning from his B Shift duty by his motorcycle bearing registration no. JH-09G-1661 and as soon as he reached near petrol pump Balidih in front of Hotel of Pradip Sao met with an accident due to rash and negligent driving of truck bearing its registration no. RJ-19GA-9995 due to which, the deceased died on the spot at the age of 50 years. Police registered Balidih P.S. Case No. 06/2009 under Sections 279/304A of the I.P.C. The offending truck bearing registration no. RJ-19GA-9995 was insured before the Oriental Insurance Company Limited, Branch

Office, Hazaribagh vide Policy No. 322302/31/2009/3780, valid for the period from 19.11.2008 to 14.11.2009. The deceased was a permanent employee of Bokaro Steel Plant vide Staff No. 611542, designated as Welder, Centering Plant, B.S. City and his monthly income was Rs. 24,090/-.

Learned counsel for the appellants has submitted that while computing the compensation, the learned Tribunal has not granted amount of Rs. 70,000/- under the conventional head in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (paragraph- 59.8) reported in (2017) 16 SCC 680 (i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of love and affection) instead of that the learned Tribunal has only granted Rs.9,500/- under the conventional head i.e. Rs.2,000/- for funeral expenses, Rs. 5,000/- for loss of consortium and Rs. 2500/- for loss of estate.

Learned counsel for the appellants has further submitted that the learned Tribunal has wrongly deducted 1/3rd from the income of the deceased towards personal and living expenses, as the family of the dependent comprises of four members, as such, wrong and less amount has been calculated in favour of the claimants in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt.) & Ors Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 (Para-30).

Learned counsel for the appellants has further submitted that the future prospect of the deceased has not been considered and in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (59.3), future prospect @ 30% may be allowed as the deceased was aged about 50 years and comes under the age between 40-50 years.

Learned counsel for the appellants has submitted that no interest was paid on the compensation amount, as such, in view of Section 171 of the Motor Vehicles Act coupled with the fact that 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) interest @ 7.5% may be paid to the claimants from the date of filing of the claim application till the date of realization of the awarded amount.

Learned counsel for the respondent no. 1 - The Oriental Insurance Company Limited has submitted that the entire awarded amount has already been indemnified through cheque dated 10.07.2013, though the income of the deceased was calculated without deducting the tax component in view of the judgment passed by the Apex Court passed in the case of Pranay Sethi (Supra) (Para-59.4).

Learned counsel for the respondent no. 1 has further submitted that the deduction has been rightly made as two of the sons of deceased namely, Bishnu Pada Mondal and Suresh Mondal are major and they have executed Vakalatnama in their personal capacity nor through their natural guardian as minors.

Learned counsel for the respondent no. 1 has further submitted that the finding recorded by the learned Tribunal that the deceased was above 50 years old at the time of accident may not be interfered by this Court and as such, if the future prospect is allowed, it may be allowed @ 15% in view of judgment of the Hon'ble Apex Court in the case of Pranay Sethi (Supra) (Para-59.3).

After considering the submissions, it appears that no appeal has been preferred by the Insurance Company, rather they have indemnified the awarded amount on 10.07.2013.

The appeal has been preferred before this Court in the year 2014 by the appellants. The fact of the case:-

The deceased Shatrughan Mondal, who was a permanent employee of Bokaro Steel Plant, died at the age of 50 years in an motor accident on 09.01.2009 at about 10:30 PM by a truck bearing registration no. RJ-09G-1661. The said offending truck was insured before the Oriental Insurance Company Limited for the aforesaid period as such, the validity of insurance was there.

The question of computing the compensation has been assailed by the appellants / claimants before this Court after issuance of the cheque, though the annual income was calculated without deducting the tax component, as such, the judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639, this Court is inclined to examine the fact and by applying the relevant principles for just and fair compensation payable to the claimants. Since, nothing has been brought on record to prove that Bishnu Pada Mondal and Suresh Mondal are minors and not dependent upon the income of the deceased, this Court, in absence of any evidence or such pleading, is not inclined to accept such objection raised by the learned counsel for the Insurance Company.

Under the aforesaid circumstances, the admitted facts are as follows:- It appears that though post-mortem report mentions about the age of deceased to be 50 years old, but the learned Tribunal has considered it to be above 50 years, since this part of the finding has not been assailed by the appellant by bringing on record the actual date of birth of the deceased mentioned in the service record, this Court is also not inclined to consider the age to be 50 years, rather the same will be considered as above 50 years as held by learned Tribunal. The income of the deceased was Rs. 24,090/- per month, which comes to Rs. 2,89,080/- per annum, but the occurrence is of the year 2009, when the income tax slab for the income upto Rs. 1,60,000/- was Nil. So far income tax above Rs. 1,60,000/- to Rs. 3,00,000/- was 10%. Accordingly, Rs. 2,89,080/- - Rs. 1,60,000/- comes to Rs. 1,29,080/- was taxable income, where 10% income tax was liable in view of judgment passed by the Apex Court in the case of Pranay Sethi (Para-59.4). Thus, Rs. 12,908/- is taxable income which is deducted from the annual income, which comes to Rs. 2,76,172/-.

Since, the claimants have been declared to be entitled for the compensation amount as no contrary evidence has been recorded by the Insurance Company.

The deduction under the personal and living expenses in view of the judgment passed by the Apex Court in the case of Smt. Sarla Verma (Supra) (para-30) shall be 1/3rd.

The future prospect shall be 15% in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para- 59.3).

The conventional head should be Rs. 70,000/- in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.8) i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of love and affection.

Thus, the new calculation chart is as follows:

Income                             Rs.24,090/- per month
Annual Income                      Rs. 24,090/- x 12 = Rs. 2,89,080/-

Deduction under tax component @ Rs. 2,89,080/- (-) Rs. 12,908/-

= Rs. 2,76,172/-

10% 15% future prospect Rs. 2,76,172/- + Rs. 41,426/-

= Rs. 3,17,598/-

1/3rd deduction towards personal Rs. 3,17,598/- x 1/3 = Rs. 1,05,866/- and living expenses Total Income Rs. 3,17,598/- - Rs. 1,05,866/-

= Rs. 2,11,732/-

Multiplier of 11 (as the deceased Rs. 2,11,732/- x 11 = Rs. 23,29,052/-

was in the age group of 51-55
years)
Conventional Head                  Rs. 70,000/-
Total Compensation Amount          Rs. 23,29,052/- + Rs. 70,000/-
                                   = Rs. 23,99,052/-
Interest                           RS. 23,99,052/- along with S.I. @ 7.5%

The entire compensation amount comes to Rs. 23,99,052/- along with interest @ 7.5% from the date of filing of the claim application till the date of realization. However, Rs. 21,29,430/- has already been paid vide cheque dated 10.07.2013, as such, Insurance Company shall calculate and pay the interest @ 7.5% per annum from the date of filing of the claim application till 10.07.2013 on the principal amount of Rs. 21,29,430/-, the principal amount has been

paid vide cheque dated 10.07.2013. Thereafter, the balance amount i.e. Rs. 2,69,622/- shall be paid along with interest @ 7.5 % per annum from the date of filing of the claim application till its payment in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons (Supra).

Accordingly, the instant Miscellaneous Appeal is allowed.

(Kailash Prasad Deo, J.) Sunil-Jay/-