Jharkhand High Court
Viplav Thakur vs Lalchand Shah on 15 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 341 of 2013
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Viplav Thakur ...... Appellant
Versus
1. Lalchand Shah
2. Vishal Bhadwani
3. United India Insurance Co. Ltd.
4. Ashish Budhia
5. United India Insurance Co. Ltd. ......Respondents
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
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For the Appellant : Mr. Kishore Kr. Singh, Advocate
For the Respondent nos.3&5 : Mr. D.C. Ghosh, Advocate
For the Respondent nos.2&4 : Ms. Swati Shalini, Advocate
For the Respondent no1 : Mr. Sheo Kumar Singh, Advocate
......
10/Dated: 15/01/2021. I.A. No.10956 of 2018
Learned counsel for the appellant has submitted that there is delay of 36 days
in filing the appeal and for condonation of the same, I.A. No.10956 of 2018 has
been filed, but no counter-affidavit has been filed by the Insurance Company, as
such, considering it to be a benevolent legislation the delay in preferring the
appeal of 36 days may be condoned.
After hearing of the learned counsel for the parties and on the basis of
materials brought on record, it appears that reason shown for delay of 36 days is
acceptable to this Court as no counter-affidavit has been filed. As such, the delay
of 36 days in preferring the appeal is hereby condoned.
Accordingly, I.A. No.10956 of 2018 stands allowed.
M.A. No.341 of 2013
Heard, learned counsel for the parties.
Claimant is the appellant before this Court. The Claimant has preferred this
appeal for enhancement of the award dated 04.07.2013 passed by learned
Presiding Officer, Motor Vehicle Accidents Claims Tribunal, Ranchi in
Compensation Case No.166 of 2004 whereby the claimant/appellant has been
awarded compensation to the tune of Rs.17,94,900/- along with simple interest @
6% per annum from the date of the closure of the argument i.e. 12.02.2013 till the
date of realization, subject to deduction of amount if any paid in compliance of
order passed under Section 140 of MV Act.
Learned counsel for the appellant has submitted that future prospect of the
injured has not been granted which would be apparent from para 26(iii) of the
impugned judgment where it has been mentioned as nil though the injured-
Viplava Thakur has sustained 80% disability, as such, the same may be allowed
by this Court.
Learned counsel for the appellant has further submitted that
appellant/claimant was a lecturer in Xavier institute of Social Service, Ranchi and
he was appointed on 02.07.2001, but because of his suffering due to accident on
25.03.2002 till July, 2007, he could not perform his duty and thus he suffered
pecuniary loss.
Learned counsel for the appellant has further submitted that in view of the
Section 171 of the MV Act coupled with the judgment passed by the Hon'ble
Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport
Corporation, reported in 2008 (4) JCR 79 SC, the interest ought to have been
paid from the date of filing of the claim application and if the date of interest is
changed by the learned Tribunal, the reason must be recorded that the delay in
disposal of the claim application was due to negligence on the part of the
claimant, but in absence of any such reason assigned by the learned Tribunal
the claimant is entitled for interest @ 7.5% per annum as awarded in the case
of Dharmpal (Supra) from the date of filing of the claim application and in
view of Section 171 of the MV Act.
Learned counsel for the respondent-Insurance Company, Mr. D.C. Ghosh has
submitted that future prospect has not been granted by the learned Tribunal in
view of evidence discussed at paras 23 and 25 of the impugned judgment which
may be referred herein:-
"(23) AW4 Baby Sebastian is senior accountant of Xavier Institute of Social
Service, Ranchi. This witness has proved Ext.-4 i.e. offer letter issue by the
institute to the injured on 02.07.2001 where it is mentioned that his joining will
be on basic pay of Rs.8,550/-. This witness has further proved Ext.5 i.e. with
regard to re-appointment of the applicants wherein he was offered one PHD
increment which constitute basic pay of Rs.9,100/- Lastly this witness has
proved the salary certificate of the applicant as Ext.-6 which shows that the
gross salary of the applicant in February 2002 was Rs.13,510/-. There is
nothing in cross examination of this witness to falsify the statement of this
witness. So the document proved by this witness is reliable and trustworthy and
it is corroborative to oral evidence of AW2 the injured applicant. From these
documents it is evident that prior to the accident on 25.03.2002 the applicant
was earning Rs.13,510/- per month and from April 2002 to July 2007 the
applicant was unable to perform his duty because during this period he has
been under treatment for injuries caused to him in the accident in question. So
there is loss of earning of 64 months for which he is entitled to get
compensation. In other words, the applicant is entitled for compensation i.e.
required to be calculated on the basis of Rs.10,450/- per month salary and
Rs.2,700/- per month is deducted on account of income tax from 13510/-. So for
loss of earning during the period of treatment the applicant is entitled for 64
months salary after deducting 20% income tax which comes to Rs.13510/--2700
= Rs.10450 x 64 = Rs.6,68,800/-.
(25) On the basis of Ext.10 i.e. disability certificate issued by the Medical Board
it is submitted by the learned counsel of the applicant that the applicant has
developed 80% disability. So he is entitled for compensation on account of loss
for future earning due to permanent disability. But from Ext.4 and Ext.6
appointment letters it is evident that prior to the accident the applicant was
drawing Rs.8,550/- as basic and from Ext.5 it is evident that when he re-joined
the Xavier Institute of Social Service his basic was Rs.9100/-. In other words, on
re-joining the applicant was granted one Additional PHD increment and joined
in higher basic pay. So it can not be said that there is any loss of future earning
and virtually the functional disability of the applicant is zero as such the
applicant is not entitled for any compensation under the head loss of future
earning on account of permanent disability. However he is entitled to get non
pecuniary damages under the head damages for pain suffering and Truama as
consequence of the injuries, loss of aminities and loss of expectation of life and
in the facts and circumstances of the case and considering the nature of injuries
caused to the applicant it is proper to allow Rs.25000/- each in the said heads."
Learned counsel for the respondent-Insurance Company has further submitted
that since there is clear-cut finding by the learned Tribunal that no loss of future
earning has been suffered by the claimant as at time of his initial appointment he
was getting basic salary to the tune of Rs.8,550/- and on his re-joining his
prospect has been considered by the Xavier institute and his basic salary was
fixed at Rs.9,100/-, as such, appellant/claimant has not suffered any loss. Apart
from that the applicant has no functional disability, as such, future prospect has
rightly not been paid to the claimant.
Learned counsel for the respondent- Insurance Company has further
submitted that awarded amount to the tune of Rs.17,94,900/- along with interest
@ 6% per annum from the date of closing of the argument i.e. 12.02.2013 till the
date of realization has already been paid after deducting the amount paid under
Section 140 MV Act, as such, this Court may not interfere with the same by
considering it to be just and fair compensation.
Learned counsel for the respondents/owner of both the offending vehicles,
Ms. Swati Shalini has submitted that vehicles were insured before the Insurance
Company.
Learned counsel for the respondent no.1, Mr. Sheo Kumar Singh has no
objection in this case to pass any reasoned order.
After hearing the learned counsel for the parties and on the basis of materials
brought on record, it appears that future prospect has not been considered by the
learned Tribunal. This Court finds that reason has been properly assigned by the
learned Tribunal showing that during the period when the claimant has suffered
between April, 2020 (accident 25.03.2002) till July, 2007 and he has not suffered
any financial loss as initially his basic salary was Rs.8,550/- at the time of joining
and at the time of re-joining his basic salary was made Rs.9,100/- by granting one
additional PHD increment. So because of unfortunate accident the future prospect
of the claimant/victim has not been jeopardized. Apart from that no evidence has
been brought on record by the claimant / appellant to establish that had he not
suffered from accident he would have attained this much salary and this much of
designation, as such, this Court concurs with the finding passed by the learned
Tribunal that there is no functional disability to the claimant and no financial loss
has been caused to the claimant due to accident. This Court is also not inclined to
grant any future prospect to the victim.
So far the interest is concerned, it is true that Section 171 of the MV Act reads
as follows:-
"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 shall
also 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."
Where the interest has to be calculated from the date of filing of the claim
application and the Court is free to decide the date of interest, but with some
reason. If the Court has not given any reason and that the claim application
remains pending before the learned Tribunal since 2004 to 2013, because of the
laches/non-cooperation of the claimant then it would not be proper for the learned
Tribunal to grant interest from the date of closure of the argument, as such, this
part of the impugned order is modified so far rate of interest is concerned.
Insurance Company is directed to pay interest @ 7.5% per annum from the
date of filing of the claim application on the awarded amount i.e. Rs.17,94,900/-
till the date of actual payment in view of judgment passed by the Apex Court in
the case of Dharmpal (Supra) and Section 171 of the MV Act.
Since the Insurance Company has already indemnified the compensation
amount @ 6% per annum, as such, Insurance Company is directed to calculated
and pay the balance amount of the interest i.e. @7.5% from the date of filing of
claim application on awarded of Rs.17,94,900/- till the date of realization after
deducting the amount already been paid.
Accordingly, the instant Miscellaneous Appeal is partly allowed.
(Kailash Prasad Deo, J.)
R.S.-
