Ramsheela Devi & Others vs Puran Chandra Swasi
2021 Latest Caselaw 2398 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 304 of 2020
                         ........

Ramsheela Devi & Others              ....        ..... Appellants
                             Versus
Puran Chandra Swasi                 ....          ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through : Video Conferencing)
                                   ............
For the Appellants        : Mr. Pradipto Mitra, Advocate.
For the Respondent        : Mr. Chandrajit Mukherjee, Advocate.
                                       ........
09/19.07.2021.

Heard, learned counsel for the appellants, Mr. Prodipto Mitra and learned counsel for the respondent, Mr. Chandrajit Mukherjee.

The appeal has been preferred by the claimants namely, (1) Ramsheela Devi, wife of Late Arvind Kumar Singh, (2) Sujit Kumar Singh, son of Late Arvind Kumar Singh and (3) Vivek Kumar Singh, son of Late Arvind Kumar Singh for enhancement of the award dated 04.07.2020 passed by learned District Judge-III, Jamshedpur in Motor Accident Claim Case No. 190/2018, whereby the claimants have been awarded compensation to the tune of Rs. 6,05,000/- along with interest @ 6% per annum from the date of filing of the claim application till the payment.

Learned counsel for the appellants has assailed the impugned award on the ground that income of the deceased has been taken on the lower side to the tune of Rs. 4500/- per month, not as per Exhibit-4, which is salary certificate of the deceased showing salary of the deceased as Rs. 13,500/-.

Learned counsel for the appellants has submitted that the learned Tribunal has not considered Exhibit-4 and did not rely upon it, on the ground that, the applicant has not filed any role or register showing that the deceased was regularly employee working as Teacher in Madhya Vidalaya, Jadugora. The Tribunal has considered that the attendance register or identification card, issued by School has not been proved. The applicant has not proved any document to show that the deceased was a regular employee of the said School and Salary Certificate, which has been brought on record as Exhibit- 4, shows that wife of the deceased Ramsheela Devi has received the

salary slip issued by the Secretary, Madhya Vidalaya, Jadugora on 10.01.2011, though the occurrence was of dated 04.01.2011.

Learned counsel for the appellants has submitted that the learned Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), has considered the income of a Carpenter, in absence of any documentary evidence, to be Rs. 5,000/-, who lost his life on 02.01.2001, whereas the present case is of dated 04.01.2011, as such in any view of the matter, the income of the deceased cannot be less than Rs. 9000/- as the deceased was educated person working as Teacher.

Learned counsel for the appellants has submitted that deduction has been wrongly made contrary to 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), as the deceased left behind four dependents at the time of death, which will be apparent from the claim application preferred by the claimants, but during pendency of the claim application, the mother of the deceased namely, Dhaneshwari Devi died and her name has been expunged / deleted on 27.11.2019, as such, it was incumbent upon the learned Tribunal to deduct 1/4th towards personal and living expenses of the deceased instead of 1/3rd, considering liability of the deceased at the time of death.

Learned counsel for the appellants has further submitted that interest has been awarded @ 6% per annum, which ought to have been @ 7.5% 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).

Learned counsel for the appellants has submitted that the offending vehicle was not insured. The offending vehicle i.e. Bajaj Boxer Kawasaki Motorcycle bearing registration no. JH-01C-0291 is standing in the name of Puran Chandra Swasi, Son of Maheshwar Swashi, an employee of UCL, Jadugora, resident of A-64/506, UCL Colony, Jadugora, P.O. & P.S. - Jadugora, District - East

Singhbhum, but after a great effort, compensation under Section 140 of the Motor Vehicles Act to the tune of Rs. 50,000/- has been executed through the employer of Puran Chandra Swasi and till date, the final award passed under Section 166 of the Motor Vehicles Act has not been indemnified to the claimants, as such, the amount may be enhanced and compensation may be paid to the claimants in a benevolent legislation.

Learned counsel for the respondent, Mr. Chandrajit Mukherjee has submitted that though F.I.R. vide Jadugoda P.S. Case No. 02/2011 dated 13.01.2011 has been registered under Sections 279, 304A I.P.C. consequent G.R. No. 19/2011 against the owner of Bajaj Boxer Kawashaki Motorcycle bearing registration no. JH-01C-0291, but after investigation, police has submitted charge-sheet vide No. 73/2011 dated 30.11.2011 under Sections 279/304A of I.P.C. against Puran Chandra Swashi. After trial of the G.R. case, Puran Chandra Swasi has been acquitted from the charges framed against him, though on the basis of benefit of doubt.

Learned counsel for the appellants has submitted that Puran Chandra Swasi was granted bail on 12.09.2011, as offence was bailable in nature on furnishing bail bond of Rs. 5,000/- with two sureties, which he has furnished on the same day on 12.09.2011 and Puran Chandra Swasi has filed an application, for release of motorcycle, bearing registration no. JH-01C-0291 on 14.09.2011. On 14.09.2011, Puran Chandra Swasi has also filed an application to change the bailor, which was also allowed and finally on the application filed for release of the vehicle by Puran Chandra Swasi, a report was called for from the Officer-in-Charge, Jadugoda P.S., and subsequently, release petition was rejected on 14.10.2011 and thereafter, the motorcycle was not released.

Learned counsel for the respondent has submitted, that it is true that the evidence to prove a criminal case and acquittal of an accused under benefit of doubt has nothing to do with the claim application as Puran Chandra Swasi has not preferred any appeal against the impugned award, as such, the claimants may take legal

recourse for execution of the award or this Court may consider the enhancement of the compensation awarded to the claimants in accordance with law which may be just and fair compensation.

Learned counsel for the respondent on instruction of Puran Chandra Swasi has submitted, that no appeal has been preferred by the respondent - owner of the offending motorcycle against the impugned award, passed by learned Tribunal on the ground that Rs. 50,000/- has already been deducted from his salary by the employer and as such, he did not prefer any appeal. It is to be clarified here that this Rs. 50,000/- deduction is with regard to ad interim order passed under Section 140 of the Motor Vehicles Act. The awarded amount passed by learned Tribunal is to be executed or to be assailed by the parties. If the claimants prefer an appeal, it becomes an enhancement appeal and if the respondent Puran Chandra Sawasi prefers an appeal it becomes an appeal against the impugned award. In absence of any appeal preferred by the owner of the offending vehicle, this Court may consider, whether enhancement appeal preferred by the claimants is fit to be considered and amount of compensation may be enhanced or not?

Learned counsel for the appellants has submitted that even in a case of acquittal in a criminal case, the claim application will not be affected in view of the judgment passed by the Apex Court in the case of Mangala Ram Vs. Oriental Insurance Company Limited reported in (2018) 5 SCC 656, Para-27 of which may profitably be quoted :-

"This Court in a recent decision in Dulcina Fernandes & Ors. Vs. Joaquim Xavier Cruz & Anr. reported in (2013)10 SCC 646, noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against respondent No. 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case,

this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."

After hearing learned counsel for the parties, this Court is satisfied to the extent that the principal laid down by the Apex Court in the case of Jai Prakash Vs. National Insurance Company Limited reported in (2010) 2 SCC 607, which has been circulated by the Registry of the Supreme Court to all the Chief Secretary, all the Director General of Police of all the States and Registrar General of all the High Courts for compliance of direction, are not being followed, in the State of Jharkhand. The appropriate order shall be passed at the end of this judgment, as this appeal is with respect to enhancement of the compensation, as such, the same is being taken as a first.

Admittedly, the deceased lost his life in an accident by a motorcycle which belongs to Puran Chandra Swasi bearing registration no. JH-01C-0291. Initially, it appears from the claim application, that four claimants are there, wife, two sons and one mother, but during pendency of the claim application, the mother of the deceased died, as such at the time of death, there was four family members, dependent upon the deceased and as such, the deduction towards personal and living expenses ought to have been 1/4 th instead of 1/3rd as passed by learned Tribunal, which is contrary to the judgment passed by Apex Court in the case of Sarla Verma (Smt.) (Supra) (Para-30).

So far the income of the deceased is concerned, as per the claim application, the claimants have claimed the income of the deceased to be Rs. 13,500/-, but the learned Tribunal has considered the income of the deceased as Rs. 4,500/- without considering Exhibit-4, rather the same has been disbelieved for the reason that Tribunal has not inspire confidence on such documents as because the Register showing the deceased to be a regular teacher in Madhya Vidalaya, Jadugora nor the attendance register have been brought on record by the claimants, rather Exhibit-4 shows that it was the salary slip issued by Secretary, Madhya Vidalaya, Jadugora on 10.01.2011

i.e. after death of the deceased with regard to the salary for the month of December, 2011, which was paid to the Ramsheela Devi, wife of the deceased. This Court cannot interfere by holding that this document should not have been disbelieved by the learned Tribunal, as learned Tribunal has some reason to disbelieve the same, but on the other hand, the compensation calculated on the basis of income of Rs. 4,500/- is considered on the lower side as held by the learned Apex Court in the case of Chameli Devi (Supra), where the income of the deceased of the claim case was Carpenter, who lost his life in a motor accident on 02.01.2001, considered to be Rs. 5,000/- per month in absence of any documentary evidence. Undoubtedly, in absence of any contrary evidence brought on record by the respondent owner, it was incumbent upon the learned Tribunal to consider the income of the deceased, who was maintaining family of five persons including himself to be just, on the basis of such judgment passed by the Apex Court. Since, no contrary evidence has been brought on record with regard to educational qualification or with regard to income of the deceased or with regard to nature of job, as such, this Court consider that if a person is working as a teacher in Madhya Vidalaya, Jadugora, then his income should not be less than Rs. 9,000/-, as the income of a Carpenter, in absence of any documentary evidence, has been considered to be Rs. 5,000/- by the Apex Court in the case of Chameli Devi (Supra), who lost his life on 02.01.2001. In the present case the accident took place on 04.01.2011 i.e. after 10 years, as such, in my view, in absence of any documentary evidence, relying upon the proposition as held by the Apex Court in the case of Chameli Devi (Supra), the income of the deceased cannot be less than Rs. 9,000/-.

Accordingly, this Court considered the income of the deceased to be Rs. 9,000/- per month. The deduction shall be 1/4 th in view of the judgment passed by the Apex Court in case of Sarla Verma (Smt.) (Supra) (Para-30). So far the interest is concerned, it appears that interest has been awarded on the lower side i.e. @ 6% per annum from the date of filing of the claim application, which ought

to have been @ 7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharampal & Sons (Supra). The multiplier should be 13 in view of judgment passed by the Apex Court in the case of Sarla Verma (Smt.) (Supra)(Para-42).

Accordingly, the calculation chart is as follows:-

Income                             Rs. 9,000/- per month
Annual Income                      Rs. 9,000/- x 12 = Rs. 1,08,000/-
25% future prospect              Rs. 1,08,000/- + Rs. 27,000/-

Pranay Sethi (Para-59.4) (Supra) = Rs. 1,35,000/- 1/4th deduction towards personal Rs. 1,35,000/- x 1/4 = Rs. 33,750/-

and living expenses
Sarla Verma (Para-30) (Supra)
Total Income                       Rs. 1,35,000/- - Rs. 33,750/-
                                   = Rs. 1,01,250/-

Multiplier of 13 (as the deceased Rs. 1,01,250/- x 13 = Rs. 13,16,250/-

was in the age group of 46 to 50
years) Sarla Verma (Para-42)
(Supra)
Conventional Head                Rs. 70,000/-

Pranay Sethi (Para-59.8) (Supra) i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate.

Total Compensation Amount Rs. 13,16,250/- + Rs. 70,000/-

= Rs. 13,86,250/-

The amount of Rs. 13,86,250/- shall be paid along with interest @ 7.5% from the date of filing of the claim application i.e. 06.12.2018, out of which, Rs. 50,000/- shall be deducted already been paid under Section 140 of the Motor Vehicles Act. The balance amount shall be paid by the respondent - Puran Chandra Swashi within a reasonable period.

Accordingly, the appeal is allowed.

Before parting with this judgment, this Court feels that in the State of Jharkhand, the direction and guidelines issued in the judgment passed by the Apex Court in the case of Jai Prakash Vs. National Insurance Company Limited & Others reported in (2010) 2 SCC 607 has not been followed nor the Court has taken remedy for securing compensation to the victim of accident involving uninsured vehicle as held in para-41 of the said judgment nor the State has taken any method to ensure that all the vehicles must be insured in

view of Section 146 of the Motor Vehicles Act. Section 146 of the Motor Vehicles Act reads as under:-

146. Necessity for insurance against third party risk.- (1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter: [Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).] Explanation.-A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force. (2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise.

(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely:-

(a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise;

(b) any local authority;

(c) any State transport undertaking:

Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties. Explanation.--For the purposes of this sub-section, "appropriate Government" means the Central Government or a State Government, as the case may be, and-

(i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government;

(ii) in relation to any corporation or company owned by the Central Government and one or more State Governments, means the Central Government;

(iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority.

It appears that this accident took place on 04.01.2011 and prior to that, the Apex Court has passed the judgment in the case of Jai Prakash (Supra), which was also circulated to the Chief Secretary and Director General of Police of all the States, but even then nothing has been done in this regard.

Under the aforesaid circumstances, the Secretary, JHALSA is directed to ensure compliance of the guidelines issued by the Apex Court in the case of Jai Prakash (Supra) through the District Legal Services Authority and also through the Jharkhand Judicial Academy to all the judicial officers.

Let a copy of order be communicated to the Registrar General of this Court, The Director, Judicial Academy and The Secretary, JHALSA for compliance.

However, The Secretary, JHALSA is directed to ensure that all the award must be satisfied, by calling for a monthly / quarterly report from the Secretary, DLSA regarding number of criminal cases instituted out of Motor Vehicles Accident, number of claim cases instituted in the district, number of claim applications allowed and number of execution case filed before the court below, so that no accident should go without having claim application, no award shall remain pending without having execution of the award owing to lack of legal assistance to the victims.

(Kailash Prasad Deo, J.) Sunil-Jay/-