Reeta Devi & Others vs Naresh Roy & Others
2021 Latest Caselaw 270 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 454 of 2014
                         ........

Reeta Devi & Others                   ....       ..... Appellants
                             Versus
Naresh Roy & Others                    ....      ..... Respondents

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

For the Appellant : Mr. Nehru Mahto, Advocate. For the Respondent No. 2 : Mr. G.C. Jha, Advocate.

........

10/19.01.2021.

Heard, learned counsel for the appellants, Mr. Nehru Mahto and learned counsel for the Oriental Insurance Company Limited, Mr. G.C. Jha.

The appellants, Reeta Devi, Govind Mahto and Lakho Devi have preferred this appeal for enhancement of the Award dated 27.06.2014 passed by learned District Judge-V-cum-P.O., Motor Vehicle Accident Claims Tribunal (M.V.A.C.T.), Hazaribag in Claim Case No. 46 of 2008.

Learned counsel for the appellants has submitted that the learned Tribunal has awarded compensation to the tune of Rs. 3,62,250/- to the claimants within one month from the date of award, failing which the insurance company shall be liable for penal interest @ 6% per annum from the date of Award till its realization.

Learned counsel for the appellants has submitted that the learned Tribunal has wrongly deducted 25% amount as contributory negligence in view of the judgment passed by the Apex Court in the case of Meera Devi & Anr. Vs. Himachal Pradesh Road Transport Corporation reported in (2014) 4 SCC 511 and has referred upon the same which has been taken note in para-10 i.e. "To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased sccoterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the

compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case."

Learned counsel for the appellants has further submitted that future prospect of the deceased has not been considered in view of judgment of the Apex Court passed in the case of Kirti & Another Etc. Vs. Oriental Insurance Company Ltd. (Civil Appeal Nos. 19- 20 of 2021) decided on 05.01.2021 as well as judgment passed by the Hon'ble Apex Court passed in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (paragraph-59.4) reported in (2017) 16 SCC 680. The deceased was below the age of 40 years, as such, entitled for 40% of the future prospect.

Learned counsel for the appellants has further submitted that the claimants have claimed Rs. 4,000/- per month as income of the deceased, as the deceased was driver, but in absence of any documentary proof, the learned Tribunal has considered the income of deceased to be Rs. 3,500/- per month.

Learned counsel for the appellants has further submitted that under the conventional head, no amount has been paid, contrary to the judgment passed by the Apex Court in case of Pranay Sethi (Supra) (59.8), Rs. 70,000/- has to be paid under the conventional head 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.

Learned counsel for the appellants has submitted that the interest has been awarded @ 6% per annum after one month from the date of Award till its realization instead of @ 7.5% Simple Interest per annum in view of 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) and from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act.

Learned counsel for the appellants has thus submitted that this Court may consider the same and may enhance the amount of compensation.

Learned counsel for the respondent no. 2 - Oriental Insurance Company Limited, Mr. Ganesh Chandra Jha, has submitted that though the right to recovery has been granted in favour of the Insurance Company by the learned Tribunal from the owner of Tata 407 Truck No. JH-09C-3799 namely, Naresh Roy, son of Raj Kumar Roy, resident of Sector No. 9 Quarter No. 1033, at Present 2A Quarter No. 2 to 045 B.S. City, P.O., P.S. and District - Bokaro. The owner of the vehicle even after notice has not appeared before the learned Tribunal and the matter was fixed ex-parte in terms of order dated 23.02.2012. Even on notice by this Court, the owner has not appeared in present Miscellaneous Appeal, as such, the same may not be interfered.

Learned counsel for the respondent no. 2 has submitted that contributory negligence has rightly been decided by the learned Tribunal as there is ample material on record while deciding the Issue No. (iii) at page no. 6 of the impugned judgment, which is quoted hereunder:-

"According to the eye witness the accident was happened due to negligence of driving of driver of offending Truck No. JH- 02C-3799. However on perusal of the fard-beyan/F.I.R. (Ext.1), charge-sheet (Ext.2) and evidence of C.W.1 and C.W.2 it appears that there was a Head-on-Collision between both the vehicles, therefore, the motor bike (deceased) was also responsible for this motor accident. The motor biker ought to have more precautions so as to avoid accident, thus, the element of contributory negligence shall have necessarily an impact over the amount of compensation as it is an admitted position that there was a Head-on-Collusion between the motor bike and the Truck."

Learned counsel for the respondent no. 2 has thus distinguished the case of the appellants from the case of the Meera Devi (Supra), where there was no evidence, but in the present case, there is evidence, as such, this Court may consider the same and may not interfere with the findings recorded by the learned Tribunal.

Considering the rival submission of the parties and looking into facts and circumstances of the case, it appears that the deceased Mittar Lal Mahto @ Amrit Mahto was going on his motor bike bearing registration no. JH-02D-3479 from Marang Marcha near Village - Lari Budh Bazar at NH-01, when Tata 407 Truck bearing registration no. - JH-09C-3799 came from opposite direction towards Ramgarh side and dashed the motor bike, which resulted into his death on spot. An F.I.R. has been lodged at Ramgarh P.S. vide P.S. Case No. 536/2007. As per the claimants the deceased was aged about 23 years and his monthly income was of Rs. 4,000/-. The offending Truck bearing registration no. JH-09C-3799 was insured before the Oriental Insurance Company Limited.

It appears that earlier notice has been issued to the owner Naresh Roy and driver Suresh Yadav, but they have not appeared before the learned Tribunal.

From perusal of materials brought on record, it appears that the deceased died at the age of 25-26 years as per the post-mortem report, which has been brought on record and marked "Y", as such, this Court consider the age of the deceased to be 25-26 years and the learned Tribunal has rightly used the multiplier of 17 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-42), but so far income of the deceased is concerned, the claimants are claiming Rs. 4,000/- per month, but in absence of any documentary evidence, the learned Tribunal has considered it to be Rs. 3,500/- per month.

In the recent judgment passed by the Apex Court passed in the case of Chameli Devi & Others Vs. Jivrail Mian reported in 2019 (4) TAC 724 (SC), where the Apex Court has considered the income of a Carpenter in absence of any documentary evidence to be Rs. 5,000/-, but in the present case, the claimants have claimed Rs. 4,000/- and in absence of any documentary evidence, the learned Tribunal has considered it to be Rs. 3,500/-. In my opinion following the ratio of case laid down in the case of Chameli Devi (Supra), the

same is considered to be Rs. 4,000/- per month. It is true that the deceased died at the age of 25-26 years below the age of 40 years, as such future prospect of the deceased below the age of 40 years is 40% in view of the judgment passed by the Apex Court in the case of Kirti & Another (Supra) and Pranay Sethi (Supra) (Para-59.4).

Under the conventional head, the learned Tribunal has not granted any amount in view of the judgment passed by the Apex Court in the Pranay Sethi (Supra) (Para-59.8). The claimants are entitled for 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 love and affection along with interest which ought to have been paid @ 7.5%, that too from the date of filing of the claim application, in view of Section 171 of the Motor Vehicles Act and in view of the judgment passed by the Apex Court in the case of Dharampal & Sons (Supra). Section 171 of the Motor Vehicles 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 additional 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 his behalf.

It appears that though the learned Tribunal is free to fix the date of interest by shifting the same, but after proper appreciation and on satisfactory reason, if the trial is delayed by the claimants itself. In absence of such satisfaction recorded by the learned Tribunal, this Court is granting interest @ 7.5% per annum from the date of filing of the claim application till the date of realization.

Now, the new calculation is as follows:

Income                                  Rs. 4,000/- per month
Annual Income                           Rs. 4,000/- x 12 = Rs. 48,000/-
40% future prospect                     Rs. 48,000/- + Rs. 19,200/-
                                        = Rs. 67,200/-

1/3rd deduction towards personal and Rs. 67,200/- x 1/3 = Rs. 22,400/-

living expenses



Total Income                               Rs. 67,200/- - Rs. 22,400/-
                                           = Rs. 44,800/-

Multiplier of 17 (as the deceased was Rs. 44,800/- x 17 = Rs. 7,61,600/-

in the age group of 26-30 years)
Conventional Head                          Rs. 70,000/-
Total Compensation Amount                  Rs. 7,61,600/- + Rs. 70,000/-
                                           = Rs. 8,31,600/-

25% of compensation amount shall be Rs. 8,31,600/- - Rs. 2,07,900/- deducted towards contributory = Rs. 6,23,700/- negligence Amount Paid under Section 140 of the Rs. 6,23,700/- - Rs. 50,000/-

Motor Vehicles Act                   = Rs. 5,73,700/-
Interest                                   Rs. 5,73,700/- along with S.I. @
                                           7.5% from the date of filing of the
                                           claim application i.e. 18.02.2008 till
                                           the date of actual payment.

The amount already paid shall be deducted by the Insurance Company and balance amount shall be paid within a reasonable time as the unfortunate accident took place on 16.11.2007. The right of recovery, already granted by the learned Tribunal shall remain intact in absence of any appeal preferred by the owner or in absence of appearance of the owner even after notice.

Accordingly, the instant miscellaneous appeal is allowed and the impugned award is modified to the aforesaid extent.

Let L.C.R. be sent down.

(Kailash Prasad Deo, J.) Sunil/-