Ajama Khatoon & Another vs Magma Hdi General Insurance ...
2021 Latest Caselaw 2294 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 405 of 2018
                         ........

Ajama Khatoon & Another .... ..... Appellants Versus Magma HDI General Insurance Company Ltd., Kolkata, West Bengal & Others .... ..... Respondents

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

For the Appellants : Mr. Ashok Kumar Dey, Advocate.

Mr. Gaurav Dey, Advocate.

For the Respondent No. 1 : Mr. Alok Lal, Advocate.

........

06/09.07.2021.

Heard, learned counsel for the appellants, Mr. Ashok Kumar Dey, assisted by learned counsel, Mr. Gaurav Dey and learned counsel for the Magma HDI General Insurance Company Limited, Mr. Alok Lal.

Learned counsel for the appellants has submitted that claimants namely, Ajama Khatoon and Mansur Ansari are the appellants before this Court. Appellants have preferred the instant appeal for enhancement of the award dated 11.05.2018 passed by learned District Judge, 1st-cum-Motor Accident Claims Tribunal, Bermo at Tenughat, Bokaro in M.V. Claim Case No. 81 of 2016, whereby claimants have been awarded compensation to the tune of Rs. 6,03,000 (after deducting Rs. 50,000/- which has been paid as ad interim compensation under Section 140 of the Motor Vehicles Act) along with the interest @ 6% per annum from the date of filing of the claim application within two months of the award, failing which interest shall be paid @ 12% per annum till its realization.

Learned counsel for the appellants has assailed the impugned award on four counts:-

(1) The deceased, Jahida Parveen @ Jahida Tabsum, aged about 23 years, was a beautician and the claimants have claimed the income to the deceased to be Rs. 20,000/- per month and to that effect, income certificate of the deceased, Jahida Praveen @ Jahida Tabsum, issued by the Mukhiya of the village. The income of the deceased was Rs. 20,000/- per month by running beauty parlour shop

doing bridal makeup and embroidery, which has been brought on record as Exhibit-8 as per income certificate issued by the Mukhiya.

(2) Future prospect has not been granted in view of the

judgment passed by the Apex Court, in the case of National Insurance Company Limited Vs. Pranay Sethi & Others reported in (2017) 16 SCC 680 (Para-59.4), whereby the future prospect ought to have been @ 40%, as the deceased was aged about 23 years i.e. below 40 years.

(3) Under the conventional head, only Rs. 5,000/- has been awarded by the learned Tribunal, it ought to have been to the tune of Rs. 70,000/- (Rs. 15,000/- as loss of estate, Rs. 40,000/- as loss of consortium and Rs. 15,000/- as funeral expenses) in view of the judgment of the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others reported in (2017) 16 SCC 680 (Para-59.8).

(4) Interest has been awarded @ 6% per annum from the date of filing of the claim application, which ought to have been granted @7.5% 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 in view of Section 171 of the Motor Vehicles Act.

Learned counsel, Mr. Alok Lal appearing for the Insurance Company has strong objection with regard to maintainability of the appeal filed by the claimants for enhancement of the award after receiving the cheque dated 05.06.2018 and has submitted that if such claim applications are entertained by this Court even after satisfying the award, it will open a Pandora box for the claimants to prefer an appeal for enhancement.

Learned counsel for the appellants, Mr. Ashok Kumar Dey, has opposed the prayer and has submitted, that appellants has preferred this appeal against the impugned award on 06.07.2018, and the cheque was received after that on 17.07.2018, with endorsement on protest and as such, for just and fair compensation, the claimants are entitled to prefer the present appeal.

Learned counsel for the appellants has further submitted that no analogous appeal has been preferred by the Insurance Company, as such, this Court may enhance the compensation considering the income of the deceased, 40% of the future prospect, Rs. 70,000/- under conventional head and interest @ 7.5% per annum.

Learned counsel for the Insurance Company, Mr. Alok Lal has submitted that income has been rightly calculated by the learned Tribunal disbelieving the certificate of income, which has been marked as Exhibit-8, issued by the Mukhiya, produced by the claimants after death of the deceased. Mukhiya is elected by the villagers and they have tendency to facilitate the voters by issuing such Certificate, though the Mukhiya is not competent to issue income Certificate. The claimants have not brought such document issued during life time of Jahida Praveen on record showing her income nor any Certificate has been issued by the Circle Officer.

Learned counsel for the Insurance Company has further submitted, that compensation ought to have been just and fair compensation and considering the compensation awarded by the learned Tribunal to be just and fair, the Insurance Company has satisfied the award, as such, this Court may not interfere in such issues.

Learned counsel for the Insurance Company has submitted that learned Tribunal has awarded the compensation on the higher side of the income, considering it to be a benevolent legislation and the Insurance Company has satisfied the award, as such, this Court may not enhance the same.

Learned counsel for the appellants, Mr. Ashok Kumar Dey has submitted that even if the income certificate, which has been brought on record as Exhibit-8 without objection, has been disbelieved by the learned Tribunal, it was incumbent upon the learned Tribunal to consider the income notified by Department of Labour under Minimum Wages Act, with regard to skilled and unskilled labourer, at the time of death on 27.09.2016. The minimum wages of unskilled

labour was Rs.268.96 in the year 2016 and as such, learned Tribunal ought to have been considered the income of unskilled labourer.

Learned counsel for the appellants has submitted that three witnesses examined on behalf of the appellants, C.W.-1, Anwarul Haque (Co-villager), C.W.-2 Kazim Ansari (Co-villager) are eye- witness to the occurrence, whereas C.W.-3 Ajma Khatoon, mother of the deceased, have been disbelieved by the learned Tribunal, on the point of the income of the deceased. The same may be considered in accordance with law and may be enhanced, and other factors may be calculated on enhanced income.

After hearing learned counsel for the appellants and learned counsel for the Insurance Company, it appears that the appeal has been preferred for enhancement. The deceased, Jahida Praveen, aged about 23 years, died in motor accident between Banshi Hotel and Ansari More on NH-23 Petarwar on 27.09.2016 at 11.30A.M. by offending LP truck bearing registration No. JH-02AK-2270, which was duly insured before Magma HDI General Insurance Company Limited under Policy No. P0016400002/4103/116421 valid from 31.12.2015 to 30.12.2016, which covers the date of accident on 27.09.2016, as such, the vehicle was duly insured. The Insurance Company has not preferred any appeal and rather satisfied the award passed by the learned Tribunal vide Cheque dated 05.06.2018, which was received by the claimants on 17.07.2018 endorsing "on protest". The appeal was filed before this Court on 06.07.2018, meaning thereby claimants have preferred the present miscellaneous appeal before receiving the cheque. It appears that this Court has to consider the compensation to be just and fair compensation, which cannot be a bonanza, but on the other hand, the same cannot be pittance.

Under the aforesaid circumstances, this Court is computing the calculation of compensation afresh, in view of the judgment passed by the Apex Court in the case of of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639. Para-8 of the aforesaid judgment is profitably quoted hereunder:-

8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the

appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.

It appears that much argument has been made with regard to the income of the deceased. The certificate, which has been adduced by the appellants, has not been accepted by the learned Tribunal on the ground that Mukhiya has no right to issue such certificate and that too, after death of a person. The Circle Officer has not issued such certificate during the life time of the deceased and the Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), in absence of any documentary evidence, has considered the income of the deceased, who was a carpenter and lost his life in a motor accident on 02.01.2001 to be Rs.5,000/- per month.

Learned counsel for the appellants has submitted that deceased was skilled labourer as she was a beautician.

Learned counsel for the appellants has placed that at the time of death in the year 2016, the minimum wages notified by the State of Jharkhand for a skilled labourer Rs.350/- per day and for unskilled labourer is Rs.268.96, if the same is also multiplied with 26 working days in a month, as four days in month are Sunday, which can be construed as holidays, then for skilled labourer, it comes to Rs.350/- x 26 = 9,100/- and for unskilled labour, the same comes to Rs. 268.96 x 26 = 6992.96/-, as such, it appears to this Court that even

the compensation has not been awarded considering deceased to be an unskilled labourer, in absence of any certificate issued by the Institute with regard to the training of the deceased as a beautician.

Under the aforesaid circumstances, this Court has reasoned to believe that compensation based on income assessed by the learned Tribunal requires interference, considering deceased to be unskilled labourer, which was Rs.268.96 per day, by making it in round figure i.e. Rs.270/- multiplied with 26 working days, it comes to Rs.7020/- per month, as such, the yearly income of the deceased comes to Rs. 7020/- x 12 = Rs. 84,240/-. Future prospect @ 40% shall be granted in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra)(Para-59.4), which comes to Rs. 33,696/-. The net income comes to Rs. 1,17,936/- and as the deceased was a Bachelor, as such, there shall be deduction of 50% of the income on personal and individual expenses 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-

30), thereafter, the income comes to Rs. 58,968/-, which shall be multiplied with multiplier of 18, as the deceased was aged about 23 years, in view of the judgment passed by the Apex Court in the case of Sarla Verma (Supra) (Para-42), then income comes to Rs. 10,61,424/-. Under the conventional head, Rs. 70,000/- shall be granted in view of judgment passed by the Apex Court in the case of Pranay Sethi (Supra)(Para-59.8), as such the total compensation comes to Rs. 11,31,424/-.

Income                             Rs. 7,020/- per month
Annual Income                      Rs. 7,020/- x 12 = Rs. 84,240/-
40% future prospect               Rs. 84,240/- + Rs. 33,696/-

Pranay Sethi (Para- 59.4) (Supra) = Rs. 1,17,936/- 50% deduction towards personal Rs. 1,17,936/- x 1/2 = Rs. 58,968/-

and living expenses
Sarla Verma (Para-30) (Supra)
Total Income                       Rs. 1,17,936/- - Rs. 58,968/-
                                   = Rs. 58,968/-

Multiplier of 18 (as the deceased Rs. 58,968/- x 18 = Rs. 10,61,424/-

was in the age group of 21-25
years) Sarla Verma (Para-42)
(Supra)



Conventional Head                Rs. 70,000/-
Pranay Sethi (Para-59.8) (Supra)
Total Compensation Amount         Rs. 10,61,424/- + Rs. 70,000/-
                                  = Rs.11,31,424/-

The total compensation amount shall be paid to the claimants to the tune of Rs. 11,31,424/- along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 06.10.2016.

However, the amount, which has already been indemnified by the Insurance Company to the tune of Rs. 50,000/- under Section 140 of the Motor Vehicles Act and the awarded amount to the tune of Rs.6,03,000/- along with interest @ 6% per annum paid to the claimants by issuing a Cheque dated 05.06.2018, shall be deducted from the enhanced compensation amount. The balance amount shall be paid to the claimants within a reasonable period as the accident is of dated 27.09.2016.

Accordingly, the Miscellaneous Appeal is hereby allowed.

(Kailash Prasad Deo, J.) Sunil/-