Jharkhand High Court
Gita Devi vs Owner Of Scorpio Jh09F-0003 on 29 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Miscellaneous Appellate Jurisdiction]
M.A. No. 311 of 2013
1.Gita Devi
2.Munni Kumari
3.Ramesh Kumar
4.Dashmi Kumari .... .. ... Appellants
Versus
1. Owner of Scorpio JH09F-0003, Suresh Singh
2. Driver of vehicle JH09F-0003 namely Raju Rewani
3. United India Insurance Company Ltd. .. ... ... Respondents
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellants : Ms. Suchitra Pandey, Advocate.
For the Respondent no.3 : Mr. Alok Lal, Advocate
..........
08/29.01.2021. I.A. No.8210 of 2013
Learned counsel for the appellants has submitted that there is delay of 68 days
in filing the appeal and for condonation of the same, I.A. No.8210 of 2013 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 of 68 days in
preferring the appeal may be condoned.
After hearing learned counsel for the parties and on the basis of materials
brought on record, it appears that reason shown for delay of 68 days is acceptable
to this Court as no counter-affidavit has been filed. As such, the delay of 68 days
in preferring the appeal is hereby condoned.
Accordingly, I.A. No.8210 of 2013 stands allowed.
M.A. No. 311 of 2013
1. Heard, learned counsel for the parties.
2. The claimants/appellants namely, 1.Gita Devi, 2.Munni Kumari, 3.Ramesh
Kumar and 4.Dashmi Kumari have preferred this Misc. Appeal for enhancement of
the award dated 17.05.2013 passed by learned District Judge 1 st-cum- M.A.C.T.,
Bokaro, in T.M.V. No.43 of 2008 whereby the claimants have been granted
compensation to the tune of Rs.3,93,500/- (out of which an amount of Rs.50,000/-
has already been paid to claimants under Section 140 of MV Act) along with simple
interest @ 6% per annum from the date of filing of the suit. The O.P. No.3 the
United India Insurance Company Ltd, is directed to pay the aforesaid amount of
compensation along with interest within two months from the date of the order,
failing which the claimants have got liberty to execute the award from the process of
law.
3. Learned counsel for the appellants has submitted that deceased (Babulal Sao) died
on 31.03.2008 at about 5 PM, when he was coming from Peterbar to Lukaiya by
cycle and one vehicle of black colour Scarpio bearing registration no.JH09F-0003
dahsed him from back side due to which the deceased sustained severe injuries and
was admitted in RIMS, Ranchi on 01.04.2008 and during treatment he died on
07.04.2008.
4. Learned counsel for the appellants has further submitted that police also lodged
Peterbar P.S. Case No.21 of 2008 on the basis of written report of one Rajesh Oraon.
5. Learned counsel for the appellants has further submitted that the offending
vehicle i.e. Scorpio bearing registration no.JH09F-0003 was duly insured before the
United India Insurance Company Ltd. vide policy No.210500/31/07/02/00000627
valid from 28.09.2007 to 27.09.2008, as such, on the date of alleged occurrence the
vehicle was duly insured.
6. Learned counsel for the appellants has further submitted that the deceased
died at the age of 39 years and had income of Rs.6,000/- per month, but the learned
Tribunal, without considering the actual income of the deceased as adduced by P.W.-
1 (Gita Devi) and P.W.2 (Ram Lal Oraon), considered the same to be Rs.3,000/-, per
month, which is meagre amount.
7. Learned counsel for the appellants has further submitted that future prospect
of the deceased has not been considered though in view of the recent judgment
passed by the Apex Court in the case of Kirti & Anr. Etc. vs. Oriental Insurance
Company Ltd. passed in Civil Appeal Nos.19-20 of 2021 decided on 05.01.2021 as
well as in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported
in (2017) 16 SCC 680 at para 59.4, the deceased was entitled for future prospect @
40%, as such, the same may be computed in favour of the claimants.
8. Learned counsel for the appellants has further submitted that interest @ 6%
has been awarded from the date of filing of the claim application, which may be
enhanced to 7.5% from the date of filing of the claim application in view of the
judgment passed by the Apex Court in the case of Dharmpal and Sons vs. U.P.
State Road Transport Corporation (2008 (4) JCR 79 (SC), as such, the instant
appeal may be allowed.
9. Learned counsel for the respondent no.3- Insurance Company has further
submitted that the Hon'ble Apex Court in the case of Chameli Devi vs. Jivrail
Mian, reported in 2019 (4) TAC 724 SC, para 20 has considered the income of the
deceased to be Rs.5,000/- even in absence of documentary evidence, when the
deceased was a carpenter and the occurrence is of the year, 2008, but in the present
case the claimants have only claimed the income of the deceased to be Rs.6,000/-
per month, as such, this Court may consider the same and grant Award along
with future prospect and other benefits in view of the judgment passed by the Apex Court.
10. Learned counsel for the respondent no.3- Insurance Company has not
disputed the factual aspect of the matter that the vehicle was insured rather has
submitted that entire awarded amount passed by the learned Tribunal has already
been indemnified by the Insurance Company, as such, if this Court is inclined to
enhance the same then whatever interest will be charged those may be charged on
the enhanced amount not on the principal amount, which has been already
indemnified by the Insurance Company.
11. Insurance Company is directed to indemnify the Award from the date of filing
of the instant Miscellaneous Appeal with simple interest @7.5% per annum.
However, the amount already indemnified by the insurance company shall be
deducted from the awarded amount.
12. Learned counsel for the appellants has further submitted that legislature has
enacted that interest should be granted from the date of filing of the claim
application, though the date of interest may be changed by the learned Tribunal on
the basis of fact and circumstances of the case either from the date of filing of the
case or from the date of framing of issue or from the date of closure of the evidence
or date of Award but the same may be passed assigning proper reason, so as to
attribute the delay upon the appellants otherwise it is incumbent upon the learned
Tribunal to grant the interest from the date of filing of claim application which has
been done by the learned Tribunal, as such, this Court may enhance the rate of
interest @7.5% from the date of filing of claim application on the enhanced amount
because this enhancement has only been done as the learned Tribunal is not correct
in appreciation and computation of the awarded amount in view of Section 171 MV
Act and read with the judgment passed by the Apex Court in the case of Dharmpal
and Sons Vs. UP State Road Transport Corporation, reported in 2008 (4) JCR 79
SC.
13. Learned counsel for the appellants has further submitted that it was incumbent
upon the Insurance Company to pay the compensation amount after verifying the
documents with regard to the insurance of the vehicle on the date of accident itself.
As such, such delay compels the claimants to come before the court of law for
getting the rightful compensation.
14. Learned counsel for the Insurance Company has submitted that since the
awarded amount has already been indemnified by the Insurance Company and
thereafter, there was a delay of 68 days in preferring the the appeal which has been
condoned by this Court, but while calculating the interest this period plays a vital
role, as such, interest should be granted on the enhanced amount from the date of
filing of the appeal before this Court.
15. After hearing the learned counsel for the parties and considering the facts and
circumstances, so far enhancement of interest is concerned, this Court accepts the
submission of learned counsel for the Insurance Company that there is delay in
filing the instant Misc. Appeal, as such, the simple interest @ 7.5% per annum shall
be paid from the date of filing of the instant Misc. Appeal on the enhanced amount
by the Insurance Company.
16. Further, considering the rival submissions of the parties, looking into the facts
and circumstances of the case, this Court has considered the income of the deceased
in absence of any documentary evidence as ratio laid down by the Apex Court in the
case of Chameli Devi (Supra) to be Rs.5,000/- per month.
17. Thus new computation of compensation is as follows:-
Annual income =Rs.5,000/- x 12 = 60,000/-. Then deduction towards personal
and living expenses as 1/4th in view of para 30 of the judgment passed by the Apex
Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation
& another, (2009) 6 SCC 121, i.e. Rs.60,000/- minus Rs.60,000/- x 1/4th
(Rs.15,000/-) = Rs.45,000/-. The 40% future prospect be granted in view of para
59.4 of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra)
as well as Kirti & Anr. Etc. vs. Oriental Insurance Company Ltd. passed in Civil
Appeal Nos.19-20 of 2021 decided on 05.01.2021.
18. Then amount comes to Rs.45,000/- + [Rs.45,000/- x 40% [= Rs.18,000/-] i.e.
Rs. 45,000/- + Rs.18,000/- = Rs.63,000/-.
After multiplying Rs.63,000/- with multiplier of 15 as deceased was aged
about 38 years, in view of para 42 of the judgment passed by the Apex Court in the
case of Sarla Verma (Supra) total amount comes to Rs. 63,000/- x 15 =
Rs.9,45,000/-.
19. Then, after adding Rs.70,000/- as conventional head in view of the judgment
passed by the Hon'ble Apex Court in the case of Pranay Sethi (supra) at para 59.8
(for the loss of Estate Rs.15,000/-, for loss of consortium Rs.40,000/- and for funeral
expenses Rs.15,000/-).
Total compensation comes to Rs.9,45,000/- + Rs.70,000/- = Rs.10,15,000/-.
20. As such, total compensation amount i.e. Rs.10,15,000/- shall be paid to the
claimants after deducing the amount already paid to the claimants in view of Award
passed by learned Tribunal, along with interest @ 7.5% from the date of filing of the
instant Miscellaneous Appeal till the date of realization on the enhanced amount
within a reasonable period.
21. Accordingly, the instant miscellaneous appeal is hereby allowed.
Sandeep/R.S. (Kailash Prasad Deo, J.)
