Jharkhand High Court
Jhalwa Devi vs National Insurance Company ... on 13 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 162 of 2018
......
1.Jhalwa Devi
2.Prakash Mahto
3.Indu Kumari
4.Anjani Kumari .... ..... Appellants
Versus
1. National Insurance Company Limited
2.Kailash Kumar Singh
3.Bhuneshwar Yadav
4.Mangri Devi
5.Uma Kumari
6.Geeta Kumari ......Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
For the Appellants : Mr. Arvind Kr Lall, Advocate
For the Respondents no.1 : Mr. Alok Lal, Advocate
-----
06/Dated: 13/07/2021.
Heard, learned counsel for the parties.
Learned counsel for the appellants, Mr. Arvind Kumar Lall has submitted
that appellants/claimants, namely, 1.Jhalwa Devi, 2.Prakash Mahto, 3.Indu
Kumari and 4.Anjani Kumari, have preferred this Misc. appeal for enhancement
of the award dated 30.06.2017, passed by learned District Judge-II-cum-MACT,
Bermo at Tenughat, Bokaro, whereby the claimants have been awarded
compensation to the tune of Rs.6,49,600/- including ad-interim compensation to
the tune of Rs.50,000/- which has already been paid under Section 140 of the
MV Act and thus, after deducting Rs.50,000/-, it comes to Rs. 5,99,600/-along
with interest @ 7% per annum from the date of filing of the claim application.
Learned counsel for the appellants, Mr. Arbind Kumar Lall has further
submitted that the learned Tribunal has wrongly considered the income of the
deceased contrary to the judgment passed by the Apex Court in the case of
Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC. Apart
from that future prospect of the deceased has not been considered, 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 has further submitted that the
deceased- Dilip Mahto was a Mason and the claimants have claimed the
earning of Rs.5,000/- per month, but the learned Tribunal in absence of
documentary evidence has considered the income as lower side to be
Rs.3,000/- per month contrary to the judgment passed by Apex Court in the
case of Chameli Devi (Supra), wherein in absence of documentary evidence
for a carpenter, who lost his life in the year, 2001, the Apex Court has
considered the income of the deceased to be Rs.5,000/- per month, though
the carpenter may not get work every day, as such, deceased, Dilip Mahto,
who was a Mason, who lost his life in a motor accident on 11.11.2006 may be
given Rs.6,000/- as monthly income.
Learned counsel for the appellants has further submitted that interest
has been awarded from the date of filing of the claim application, but @ 7%
per annum simple interest, which ought to have been @ 7.5% per annum, in
view of the judgment passed by the Apex Court in the case of of Dharampal
& Sons Vs. U.P. Transport Corporation, reported in (2008) 4 JCR 79 SC.
Learned counsel for the appellants has further submitted that there is
delay of 144 days in preferring the appeal by the claimants, as the bread
earner of the claimants has died, as such, I.A. No.2673 of 2018 has been
preferred, which may be considered sympathetically in a benevolent
legislation.
Mr. Alok Lal, learned counsel for the respondent no.1-National
Insurance Co. Ltd. has opposed the prayer and submitted that the claimants
have preferred the claim application before the learned Tribunal for a
compensation to the tune of Rs.5 lacs though the learned Tribunal has
granted Rs.5,99,600/- along with interest @ 7% per annum, as such, this
Court may not enhance the same.
Learned counsel for the respondent no.1- National Insurance Co. Ltd.
has further submitted that under the conventional head instead of
Rs.70,000/- in view of judgment passed by the Apex Court in the case of
Pranay Sethi (Supra) i.e. for loss of estate Rs.15,000/-, or loss of consortium
Rs.40,000/- and for funeral expenses as Rs.15,000/-, but learned Tribunal has granted
exorbitantly high amount i.e. funeral expenses Rs.25,000/-, loss of consortium
Rs.25,000/- love and affection Rs.1,00,000/- it means Rs.1,50,000/-. Apart from that
Rs.10,000/- has been grated as litigation expenses, as such, this compensation amount
may not be enhanced, as the other parameters for calculation of compensation
has been rightly appreciated by the learned Tribunal.
The deceased was aged abut 28 years, as such, the multiplier to 17 has
been rightly used. Further under the deduction 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, para 30, since the deceased left behind six dependents, as such,
the learned Tribunal has deducted towards personal and individual expenses as 1/5 th
which ought to be 1/4th in view of the judgment passed by the Apex Court in the case
of Sarla Verma (supra) at Para 30
Learned counsel for the respondent no.1, Mr. Alok Lal has submitted that in
the year, 2006-2007 the minimum wages for Mason is notified as Rs.128/- to
Rs.135/- up to June, 2007, as such, if it is multiplied with 26 working day in a month,
then also the income would be Rs.3,380/- per month and the learned Tribunal has
considered the same to be Rs.3,000/-, as such, the same does not require any
interference by this Court.
Learned counsel for the Insurance Company, Mr. Alok Lal has opposed the
application for condonation of delay 144 days on the ground that no plausible reason
has been given.
After hearing learned counsel for the parties and on the perusal of the
limitation petition, this Court is satisfied with the reason assigned by the appellants
for condonation of the delay in benevolent legislation, accordingly the delay of 144
days in preferring the appeal is hereby condoned.
I.A. No.2673 of 2018 stands allowed.
So far the merit of the appeal is concerned, this Court considers the same, 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
at Para-8, which may profitably be 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."
As such, in absence of any appeal preferred by the Insurance
Company when the amount under conventional head is exorbitantly high,
this Court has to examine whether the amount can be enhanced or not?
The deceased has died at the age of 28 years, who was a mason and
left behind six dependents. The offending vehicle (Dumper) bearing
registration No.JH0913-8723 was insured before the National Insurance
Company Limited vide Policy No.179402/31/05/6300092968 for the period
from 23.02.2006 to 22.02.2007 and accident occurred on 11.11.2006, as such,
the offending vehicle was duly insured before the National Insurance
Company Limited and there is no violation of the terms and conditions of
the policy and no appeal has been preferred by the Insurance Company. The
income which has been considered to be Rs.3,000/- against the claim of the
claimants of Rs.5,000/- has been opposed by the Insurance Company on the
basis of minimum wages of the year, 2006 to be Rs.128/- and the same has
been rounded off to Rs.130/- per day and normally 26 days the people can
work as four days are Sunday in a month. As per the Insurance Company
the amount ought to have been Rs.3,380/-, but in view of the judgment
passed by the Apex Court in the case of Chameli Devi (Supra) where the
income of a carpenter, who lost his life in the year, 2001 has been considered
as Rs.5,000/- in absence of documentary evidence, as Court has no reason
not to follow the principles laid down by the Apex Court, as such, income of
the deceased is considered to be Rs.5,000/- per month as minimum wages
never says that person will not earn more than the minimum wages. The
deceased was a mason, as such, his income considered to be Rs.5,000/- .
The new calculation chart would be as follows :-
Annual Income Rs.60,000/-
1/4th deduction towards personal and Rs.60,000/- minus Rs.15,000/- =
living expenses as deceased had six Rs.45,000/-
dependents [Sarla Verma (Smt) &
others vs. Delhi Transport Corporation
& another, reported in (2009) 6 SCC
121 at para 30]
Multiplier as 17 as deceased was in the Rs.45,000/- x 17 = Rs.7,65,000/-
age group of 26-30 [Sarla Verma (Smt)
& others vs. Delhi Transport
Corporation & another, reported in
(2009) 6 SCC 121 at para 42]
Future Prospect @ 40% [National Rs.7,65,000/- + Rs.7,65,000/- x 40%
Insurance Company Ltd. vs. Pranay [Rs.3,06,000/-] = Rs.10,71,000/-
Sethi, reported in (2017) 16 SCC 680 at
para 59.4]
Conventional Head [National Rs.70,000/-
Insurance Company Ltd. vs. Pranay
Sethi, reported in (2017) 16 SCC 680 at
para 59.8]
Total Compensation Amount Rs.10,71,000/- + Rs.70,000/- =
Rs.11,41,000/-.
Since the compensation computed is more than the award passed by the
learned Tribunal, as such, is being enhanced.
The Insurance Company is directed to indemnify the amount of Rs.11,41,000/-
along with interest @ 7.5% per annum from the date of filing of the claim application
till its realization, in view of the judgment passed by the Apex Court in the case of
Dharampal & Sons Vs. U.P. State Road Transport Corporation, reported in (2008)
4 JCR 79 SC as well as in view of Section 171 of the MV Act. However, the amount
already paid by the Insurance Company shall be deducted from the same and the
balance amount shall be paid by the Insurance Company within a reasonable time as
the accident is of dated 11.11.2006.
Accordingly, the instant Misc. Appeal stands allowed with aforesaid
modification.
(Kailash Prasad Deo, J.)
sandeep/
