Jharkhand High Court
Renuka Devi & Others vs The United India Insurance Co. ... on 12 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 132 of 2014
........
Renuka Devi & Others .... ..... Appellants
Versus
The United India Insurance Co. Ltd. & Anr. ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellants : Mr. Birendra Kumar, Advocate.
For the Respondent No. 1 : Mr. D.C. Ghosh, Advocate.
........
13/12.01.2021.
It appears that appellants, Renuka Devi, Devendra Nath Tiwari
and Menika Devi have preferred the instant appeal for enhancement
of the Award dated 21.12.2013 passed by learned District Judge-
cum-M.A.C.T. Judge-VII, Dhanbad in Title (M.V.) Suit No.
270/2008, whereby appellants have been awarded compensation to
the tune of Rs. 2,84,000/- (wrongly typed as Rs. 2,74,000/-) along
with interest payable @ 9% per annum from the date of filing of the
claim application till the date of its realization.
It appears that after admitting the appeal on 29.08.2018
Coordinate Bench of this Court has passed order for issuance of
notice upon respondent no.2 Chandan Kumar Mishra, but in the
meantime the matter was referred before the Lok Adalat for
settlement, but the settlement failed before the Lok Adalat and
thereafter, it was again listed before the regular Bench for
adjudication.
It has been submitted by learned counsel for the United India
Insurance Company Ltd. that no appeal has been preferred by the
Insurance Company against the impugned award either for setting
aside of the award or having right of recovery from the owner of the
insured vehicle, rather Insurance Company has already satisfied the
award to the tune of Rs. 3,24,000/- and as such, learned counsel for
Insurance Company has submitted that this appeal may be disposed
of.
Learned counsel for the appellants, Mr. Birendra Kumar has
submitted that income of the deceased has been claimed to the tune
of Rs.7,500/- per month while working as Accounts Assistant under
M/s SPM Financial Consultancy, Dhanbad and Dr. Devendra Sharan
(P.W.4), proprietor of SFM Consultancy, Dhanbad have been
examined and has proved the salary certificate as Exhibit-1 issued
under his signature vide Ref. no. SPM/102/2007-08 dated
10.02.2008.
Learned counsel for the appellants has further submitted that
learned Tribunal without having any reason has considered the
income of the deceased to be Rs. 3,000/- per month, which is meagre
amount contrary to the evidence brought on record.
Learned counsel for the appellants has further submitted that
the learned Tribunal has not granted any future prospect though the
deceased, who died at the age of 24 years comes below the age of 40
years and have fixed income, as such, appellants are entitled for
future prospect @ 40% of the income.
Learned counsel for the appellants has further submitted that
recently the Hon'ble 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 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 in view of the judgment passed by the
Hon'ble Apex Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680
paragraph-59.8, the compensation towards conventional head ought
to be 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. The learned Tribunal has only granted Rs. 10,000/- i.e.
Rs.5,000/- towards loss of estate and Rs.5,000/- towards the funeral
expenses, as such, meagre amount has been paid under the
conventional head.
Learned Tribunal has only considered the Renuka Devi (wife)
and Menika Devi (mother) as dependents of the deceased and refused
to consider Devendra Nath Tiwari brother of the deceased as a
dependent. Learned counsel for the appellants has further submitted
that instead of deducting personal and living expenses to the tune of
1/3rd, the learned Tribunal has deducted half, which is non-sustainable
in the eyes of law in view of the judgment passed by the Apex Court in
the case of Sarla Verma Vrs. Delhi Transport Corporation reported
in (2009) 6 SCC 121 para-30.
Learned counsel for the appellants has thus submitted that
compensation amount may be enhanced.
Learned counsel for the Insurance Company, Mr. D. C. Ghosh
has submitted that learned Tribunal has rightly considered the
notional income of the deceased as salary certificate issued to the
deceased Santosh Kumar Tiwary by a company did not maintain
registration number on the letter head. They did not maintain the
salary payment register of their employees, as such, considering such
document to be valid document is not proper and the Tribunal has
rightly rejected the same.
Learned counsel for the Insurance Company has further
submitted that interest has been paid on higher side i.e. @ 9% per
annum from the date of filing till the date of realization though in
view of under Section 171 of Motor Vehicles Act coupled with the
judgment passed by Apex Court in the case of Dharampal and Sons
Vs. U.P. State Road Transport Corporation reported in 2008 (4)
JCR 79 (SC), the interest ought to have been @ 7.5% simple per
annum from the date of filing of the claim application till the date of
its realization. The awarded amount has already been satisfied by the
Insurance Company by paying Rs.3,24,000/- to the appellants /
claimants, as such, considering it to be just and proper, this court
may not interfere with the impugned award.
After hearing learned counsel for the parties and on the basis
of pleading, the admitted fact is that Santosh Kumar Tiwary died
while coming to his office situated at Dhanbad from his native
village riding on a tempo bearing registration no. JH-10G-4402 on
28.12.2006 at 9.30 A.M. near Jharkhand More, Dhanbad when a
speeding truck bearing registration no. BR 17G-7700 coming from
opposite direction in a rash and negligent manner, dashed the said
tempo, due to which it toppled down and the person on board
sustained serious injuries, however, Santosh Kumar Tiwary sustained
fatal injuries and the died on spot.
As per the fact offending vehicle bearing registration no. BR-
17G-7700 was insured before the Insurance Company vide policy
brought on record as Exhibit-6 valid for the period on which the
accident took place. As per the pleading of the appellants deceased
was employed in a private job under one Naushad Ansari and was
earning Rs. 7,500/- per month. During evidence, Dr. Devendra
Sharan, the proprietor of SFM Consultancy, Dhanbad has been
examined as P.W.-4, who issued a salary certificate, which has been
brought on record as Exhibit-1 under his signature vide Ref. no.
SPM/102/2007-08 dated 10.02.2008, but the learned Tribunal has not
considered it to be reliable on the ground that in his cross-examination
the said witness has admitted that company has no registration
number and the same has also not been written on the letter head. The
company is also not maintaining the salary payment register of their
employees and has not issued any appointment letter to the deceased.
Considering the same to be a fake certificate, the learned Tribunal has
not considered the same in accordance with law, however, considering
the judgment passed by the Apex Court in the case Chameli Devi Vs.
Jivrail Mian reported in 2019 (4) TAC 724 SC, where the Apex
Court has considered the income of the deceased being a carpenter to
the tune of Rs. 5,000/-, as such, the income of the deceased has been
enhanced from Rs.3,000/- to Rs.5,000/- in the present case too.
So far the future prospect is concerned in view of recent
judgment passed by the Apex Court in the case of Kirti & Anr. Etc.
(Supra), the claimants are also entitled for the future prospect of the
deceased, who died at the age of 24 years.
Considering the same, in view of the judgment passed by the
Apex Court in the case of Kirti & Anr. Etc.(Supra) and in view of the
judgment passed by the Apex Court in the case of Pranay Sethi
(Supra) the future prospect of the deceased shall be considered to be
40%.
So far deduction towards personal and individual expenses of
the deceased is concerned in view of number of dependent i.e. wife
and mother, it ought to have been 1/3 rd in view of judgment passed by
the Apex Court in the case Sarla Verma (Supra) para-30 and the
Tribunal has rightly not considered the brother, a major, to be
dependent upon the deceased, accordingly, the deduction of 1/2 is
modified to 1/3rd..
So far conventional head is concerned in view of the judgment
passed by the Apex Court in the case of Pranay Sethi (Supra) (para-
59.8), the claimants are entitled for Rs.70,000/- towards conventional
head, which has been wrongly paid by the learned Tribunal to the
tune of Rs.10,000/-, accordingly, the same is enhanced.
Since the appeal has not been preferred by the Insurance
Company against the excess interest, this Court is inclined to
interfere with the same in view of the judgment passed by the Apex
Court in the case of Ranjana Prakash & Others Vs. Divisional
Manager & Another reported in 2011 (14) SCC 639 (para-8) and
the enhanced amount shall be paid with interest @ 7.5% per annum
from the date of filing of the claim application till the date of actual
payment.
Accordingly, the new calculation shall be as follows:-
Income Rs.5,000/- per month
40% future prospect Rs. 2000/- + Rs. 5,000/- = Rs. 7,000/-
Annual Income Rs. 7,000/- x 12 = Rs. 84,000/-
rd
1/3 deduction towards Rs. 84,000/- x 1/3 = Rs. 28,000/-
personal and living expenses
Total Income Rs. 84,000/- - Rs. 28,000/- = Rs. 56,000/-
Multiplier of 18 (as the Rs. 56,000/- x 18 = Rs. 10,08,000/-
deceased was in the age group
of 21-25 years)
Conventional Head Rs. 70,000/-
Total Compensation Amount Rs. 10,08,000/- + Rs. 70,000/-
= Rs. 10,78,000
Interest RS. 10,78,000/- along with S.I. @ 7.5%
Since, Rs. 3,24,000/- has already been paid, the balance
amount i.e. Rs. 7,54,000/- shall be paid along with interest @ 7.5 %
per annum from the date of filing of the claim application till its
realization 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.
Let the Lower Court Records be sent down.
(Kailash Prasad Deo, J.)
Sunil-Jay/-
