Jharkhand High Court
Rajia Bibi & Others vs Abdur Rahim & Others on 19 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 108 of 2014
........
Rajia Bibi & Others .... ..... Appellants
Versus
Abdur Rahim & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellants : Mr. Arvind Kumar Lall, Advocate.
For the Respondent No. 3 : Mr. K.L. Ojha, Advocate.
Mrs. Sunita Ojha, Advocate.
........
07/19.01.2021.
Heard, learned counsel for the appellants, Mr. Arvind Kumar
Lall and learned counsel for the New India Assurance Company
Limited, Mr. K.L. Ojha, assisted by learned counsel Mrs. Sunita
Ojha.
The appellants have preferred the instant appeal for
enhancement of the Award dated 13.01.2014 passed by learned
District Judge-I-cum-Motor Vehicle Accident Claim Tribunal, Pakur
in M.A.C.T. Case No. 09/2012, whereby the claimants namely, Rajia
Bibi, Jaynal Abedin and Saibur Ahamad @ Sabiruddin Ahamad have
been awarded compensation to the tune of Rs. 2,25,500/- in total
along with simple interest @ 6% per annum from the date of filing of
the application which is 10.01.2012 till its realization. Further, if Rs.
50,000/- has been received by the claimants as interim compensation
/ no fault liability under Section 140 of the M.V. Act that amount
shall be deducted from the total amount of compensation.
Learned counsel for the appellants, Mr. Arvind Kumar Lall,
has submitted that the deceased Mahammad Ali @ Afel died at the
age of about 28 years while he was working as a Khalashi. The
learned Tribunal has not considered the income of the deceased as
claimed by the witnesses to the tune of Rs. 7,500/- per month, rather
considering the same to the tune of Rs. 1,500/- per month in absence
of any documentary evidence.
Learned counsel for the appellants has referred the judgment
passed by the Hon'ble Apex Court in the case of Chameli Devi &
Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724
(SC), where the Apex Court in absence of any documentary evidence
has considered the income of Carpenter to be Rs. 5,000/-,
this Court may also consider the income of the deceased to be Rs.
5,000/-.
Learned counsel for the appellants has submitted that in view
of Schedule-II of the Motor Vehicles Act, the learned Tribunal has
rightly calculated multiplier of 18 as the deceased died at the age of
about 28 years.
Learned counsel for the appellants has further submitted that
future prospect of the deceased has not been considered in view of
the recent judgment passed by the Hon'ble Apex Court in the case of
Kirti & Anr. Etc. Vs. Oriental Insurance Company Limited in Civil
Appeal Nos. 19-20 of 2021 decided on 05.01.2021 and also in view
of the judgment passed by the Apex Court in the case of National
Insurance Company Ltd. Vs. Pranay Sethi and Ors. (paragraph-
59.4) reported in (2017) 16 SCC 680. The future prospect at the rate
of 40% may be allowed as the deceased was aged about 28 years and
comes under the heading of below the age of 40 years.
Learned counsel for the appellants has further submitted that
under the conventional head only Rs. 9,500/- has been paid i.e. Rs.
2,000/- for funeral expenses, Rs. 2,500/- for loss of estate and Rs.
5,000/- for loss of consortium, which is contrary to the judgment
passed by the Apex Court in the case of Pranay Sethi (Supra) (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, total Rs.
70,000/-, as such the amount may be enhanced.
Learned counsel for the appellants has further submitted that
simple interest @ 6% per annum has been awarded from the date of
filing of application i.e. from 0.01.2012 till its realization, but it
ought to have been 7.5% in view of the judgment passed by the
Hon'ble Apex Court passed in the case of Dharampal and Sons Vs.
U.P. State Road Transport Corporation reported in 2008 (4) JCR 79
(SC).
Learned counsel for the appellants has thus submitted that the
amount may be enhanced as meagre amount has been paid to the
claimants.
Learned counsel for the respondent no. 3, Mr. K.L. Ojha
assisted by learned counsel, Mrs. Sunita Ojha appeared for the New
India Assurance Company Limited has supported the impugned
judgment and has submitted that the entire awarded amount has
already been indemnified to the claimants on 26.09.2014 by way of
cheque payment, as such, this Court may not consider the same.
Learned counsel for the respondent no. 3 has further submitted
that admittedly the deceased Mahammad Ali, who was working as
Khalashi was aged about 28 years but wrong multiplier has been
considered by the learned Tribunal to be 18, which ought to have
been 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).
Learned counsel for the respondent no. 3 has submitted that it
is a peculiar circumstance when, after payment has been made, such,
enhancement appeal has been preferred, as such, this Court may
consider the judgment passed by the Apex Court passed in the case
of Ranjana Prakash & Others Vs. Divisional Manager & Another
reported in 2011 (14) SCC 639 (Para-8). Considering the same, this
Court may adjudicate the compensation, if tenable under the law.
After hearing learned counsel for the parties and looking into
facts and circumstances of the case, it appears that the deceased
Mahammad Ali, who was working as Khalashi in truck bearing
registration no. WB-65/8124 loaded with stone chips was coming
from Pakur to Chandpur towards Dhulian Road and crushed under
the wheel of the offending vehicle at the time of riding on the
vehicle. The vehicle was duly insured before the Insurance Company
that is also admitted. The deceased was died at the age of 28 years
that is also admitted.
Under the aforesaid circumstances, since the income of the
deceased has been considered on lower side, the claimants have
claimed Rs. 7,500/- per month, but in absence of any documentary
evidence, the learned Tribunal has considered it to be Rs. 1,500/- per
month, but in the recent judgment passed by the Apex Court in the
case of Chameli Devi & Others (Supra), the same has been
considered to be Rs. 5,000/- in absence of documentary evidence in
the case of Carpenter, as such, this Court is also accepting the same
as Rs. 5,000/-.
Thus, the new calculation will be:-
Income Rs. 5,000/- per month
Annual Income Rs. 5,000/- x 12 = Rs. 60,000/-
40% future prospect Rs. 60,000/- + Rs. 24,000/-
= Rs. 84,000/-
1/3rd deduction towards personal Rs. 84,000/- x 1/3 = Rs. 28,000/-
and living expenses
Total Income Rs. 84,000/- - Rs. 28,000/-
= Rs. 56,000/-
Multiplier of 17 (as the deceased Rs. 56,000/- x 17 = Rs. 9,52,000/-
was in the age group of 26-30
years)
Conventional Head Rs. 70,000/-
Total Compensation Amount Rs. 9,52,000/- + Rs. 70,000/-
= Rs. 10,22,000/-
Amount Paid under Section 140 of Rs. 10,22,000/- - Rs. 50,000/-
= Rs. 9,72,000/-
the Motor Vehicles Act
Interest RS. 9,72,000/- along with S.I. @ 7.5%
from the date of filing of the claim
application i.e. 10.01.2012 till the actual
payment was made vide cheque dated
26.09.2014 by the Insurance Company.
The amount which was already paid shall be deducted from
this amount by the Insurance Company and the balance amount shall
be paid within a reasonable time, as the occurrence is of dated
29.04.2007 under the aforesaid terms and conditions.
The interest shall not be given on any enhanced amount as
because the Insurance Company, without contesting the case, has
already indemnified the award passed by the learned Tribunal. Had it
been so that learned Tribunal has made proper correction, the
Insurance Company would might have paid the same, but under the
said bonafide stand of the Insurance Company, no further interest is
liable to be paid after the actual compensation amount has been
indemnified by the Insurance Company.
Accordingly, the instant Miscellaneous Appeal is allowed.
(Kailash Prasad Deo, J.)
Sunil-Jay/-
