Jharkhand High Court
Bhaglu Rai vs Habibur Rahman on 9 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 406 of 2018
......
1.Bhaglu Rai
2.Shiva Rai
3.Potol Rai
4.Rasila Kumari
5.Santosh Rai
6.Vijay Rai ...... Appellants
Versus
1.Habibur Rahman
2.Branch Manager, National Insurance Co. Ltd., Murshidabad
(West Bengal), PIN 742101 ......Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
[Through- Video Conferencing]
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For the Appellants : Mr. Arvind Kumar Lall, Advocate
For the Respondent no.2 Ms. Amrita Banerjee, Advocate
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06/Dated: 09/07/2021.
Heard, learned counsel for the parties.
Learned counsel for the appellants/claimants has submitted that claimants,
1.Bhaglu Rai, 2.Shiva Rai, 3.Potol Rai, 4.Rasila Kumari, 5.Santosh Rai and
6.Vijay Rai (claimant Nos.2, 3, 4, 5 & 6 being minors are represented through
their father and natural guardian claimant No.1, Bhaglu Rai) have preferred
this Misc. Appeal for enhancement of the Award 25.05.2018 passed by learned
District Judge-I-cum-Motor Vehicles Accident Claims Tribunal (MACT),
Pakur, (District-Pakur), in Motor Vehicle Accident Claims Case No.92 of
2014, whereby, claimants have been awarded compensation to the tune of
Rs.9,70,000/- along with interest @7% per annum from the date of filing of
the claim application till the date of actual payment. Out of total amount, 80%
shall be kept in separate termed deposits in a nationalized bank for a period of
five years equally in the name of minor claimant Nos.2, 3, 4, 5 and 6 but no
withdrawal shall be permitted before the expiry of the period. However,
monthly interest shall be paid to the father/claimant No.1.
Learned counsel for the appellants/claimants, Mr. Arvind Kumar Lall has
assailed the impugned award on the ground that income of the deceased has
been wrongly considered to be Rs.5,000/- per month as the deceased was a
tailor and apart from that she used to do the work of collecting cow dung and
also doing domestic work in other's houses, as such, income of the deceased
has been considered on the lower side, which may be reconsidered by this
Hon'ble Court.
Learned counsel for the appellants/claimants has further submitted that
future prospect has been granted @ 25% assessing the age of the deceased to
be 40 years, but as per the evidence of the witnesses of the claimants she was
aged about 39 years, as such, the learned Tribunal ought to have granted 40%
of the future prospect below 40 years, in view of the judgment passed by the
Apex Court in the case of National Insurance Company Ltd. vs. Pranay
Sethi, reported in (2017) 16 SCC 680 at para 59.4.
Learned counsel for the appellants/claimants has further submitted that
interest has been awarded @ 7% per annum it ought to have been 7.5% per
annum in view of the judgment passed by the Apex Court in the case of
Dharampal & Sons Vs. U.P. Transport Corporation, reported in (2008) 4
JCR 79 SC and this Court is also consistent with regard to grant of the interest
@ 7.5%.
Learned counsel for the Insurance Company, Ms. Amrita Banerjee has
vehemently opposed the prayer and submitted that so far income of the
deceased is concerned, she was engaged in collecting cow dung, which will be
apparent from the FIR itself, recorded on the basis of the fardbeyan of Santu
Rai, who is own son-in-law of the deceased, as such, learned Tribunal has
rightly considered the income of the deceased as Rs.5,000/- per month, who
lost her life in a road accident on 03.03.2014.
Learned counsel for the Insurance Company, Ms. Amrita Banerjee has
further submitted that in a case of skilled labourer like carpenter the Apex
Court has considered the income of such person to be Rs.5,000/- in the
absence of any documentary evidence for a death caused in the year 2001, as
such, the learned Tribunal has rightly considered the same to be Rs.5,000/- per
month as the income of the deceased, who was unskilled labourer or engaged
in collecting cow dung.
Learned counsel for the Insurance Company has further submitted that on
the basis of the postmortem report, the age of the deceased has been
considered as 40 years, which cannot be considered to be 39 years to give any
benefits under the future prospect or under the multiplier without any evidence
brought on record by the claimants, as such, on these grounds this Court may
not interfere in the award, which is just and fair compensation.
Learned counsel for the Insurance Company, Ms. Amrita Banerjee has
further submitted that though the interest has been awarded @ 7% per annum,
which ought to have been 7.5% interest, in view of the judgment passed by the
Apex Court in the case of Dharampal (Supra). On the other hand, though the
Insurance Company has not preferred an appeal, but this Court may consider
just and fair compensation, in view of the judgment passed by the Apex Court
in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr.,
reported in 2011 (14) SCC 639, para 8 of which 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 the owner/insurer
for reduction. The High Court cannot obviously increase the compensation in
an appeal by the owner/insurer for reducing the compensation, nor can it
reduce the compensation in an appeal by the claimants seeking enhancement of
compensation."
Learned counsel for the Insurance Company has thus, submitted that
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.
Learned counsel for the Insurance Company has further submitted that it
will be apparent that for having five dependents or six dependents, deduction
ought to have been 1/5th towards personal and living expenses, in view of the
judgment passed by the Apex Court in the case of Sarla Verma (Smt) &
others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC
121, at para 30, as such, compensation has been paid excessively by not
deducting 1/4th, rather 1/5th has been deducted, as such, this Court may not
interfere with the compensation, which is just and fair compensation as it
cannot be bonanza nor it can be pittance.
After hearing, learned counsel for the parties and on the basis of facts and
circumstances of the case and also on the basis of materials brought on record,
this Court finds that age of the deceased has been considered by the learned
Tribunal as 40 years and the income of the deceased as Rs.5,000/-, in absence
of any documentary proof brought by the claimants as she was collecting cow
dung as per the statement of her own son-in-law, Santu Rai. The deduction has
been made under personal and living expenses as 1/5 th which ought to have been
1/4th in view of the judgment passed by the Apex Court in the case of Sarla
Verma (Supra). As such, this Court is not inclined to interfere with the
impugned award as compensation is considered as just and fair.
Accordingly, the instant Miscellaneous Appeal is hereby dismissed in view
of the judgment passed by the Apex Court in the case of Ranjana Prakash
(Supra).
( Kailash Prasad Deo, J.)
R.S-
