Jharkhand High Court
Mala Devi @ Rani Devi vs Birendra Ganjhu on 19 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
I.A No. 662 of 2016
In
M.A. No. 65 of 2016
1. Mala Devi @ Rani Devi
2. Khusboo Kumari @ Khusbu Kumari
3. Bittu Kumar
4. Chintu Kumar
5. Mukesh Kumar .... .... Appellant(s).
Versus
1. Birendra Ganjhu
2. New India Assurance Company Ltd. .... .... Respondent(s)
With
I.A. No.1241 of 2015
In
M.A. No. 485 of 2014
The New India Assurance Company Ltd. .... .... Appellant(s).
Versus
1. Mala Devi @ Rani Devi
2. Khusboo Kumari @ Khusbu Kumari
3. Bittu Kumar
4. Chintu Kumar
5. Mukesh Kumar .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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FOR THE APPELLANT(S) : Mr.Vijay Kumar Sharma, Advocate
FOR THE RESPONDENT(S) : Mr. Manish Kumar, Advocate
Mr. Shashank Shekhar, Advocate
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7/19.07.2021
Both the cases arise out of the same accident. In M.A. No. 485 of 2014
the Insurance Company has challenged the award. In M.A. No. 65 of 2017 the
claimants have prayed for enhancement.
Heard Mr.Vijay Kumar Sharma, counsel appearing on behalf of
appellants and Mr. Manish Kumar counsel appearing on behalf of Insurance
Company. In M.A. No.485 of 2014 Mr. Shashank Shekhar counsel appearing on
behalf of the owner and driver of the vehicle. He has not put in appearance in
the connected appeal i.e in M.A. No. 65 of 2016. He submits that he has
informed his client to appear in M.A. No.65 of 2016 but they did not respond.
Considering the fact that the owner and the driver had already stood represented
in M.A. No. 485 of 2014 arising out of same accident, I am hearing Mr.
Shashank Shekhar, Advocate in both cases.
I.A. No. 662 of 2016
This application has been filed under Section 5 of the Limitation Act
praying to condone the delay of 430 days.
Counsel appearing on behalf of the respondents has got no objection, if
the delay is condoned.
After going through paragraphs of the instant application, I am satisfied
that delay has been properly explained.
Considering the aforesaid fact, the delay is condoned.
Accordingly, this interlocutory application stands allowed.
M.A. No. 65 of 2016
In this appeal, the appellants who are claimants have prayed for
enhancement of the compensation awarded by District Judge-II-cum-Additional
Claim Tribunal, Chatra in Claim Case No. 14of 2011.
The claimants are the legal heirs and representatives of the deceased
Vinod Prasad Soni.
After hearing the counsel appearing on behalf of the parties, I find that
there is no dispute in respect of the accident and involvement of the vehicle
bearing No. BR 47P 8887. There is no dispute in respect of valid Insurance
Policy. The Tribunal had given the Insurance Company a right to recover the
compensation amount from the owner of the vehicle. This finding has not been
challenged by the owner of the vehicle as Mr. Shashank Shekhar, Advocate who
is appearing on behalf of owner of the vehicle admits that no appeal has been
preferred.
The claimants submit that considering the dependency, deduction
towards personal expenses should have been 1/4th, not 1/3rd. He submits that
there are more than four dependents of the deceased, thus 1/4th should have
been deducted from the income. He submits that the Tribunal has assessed the
income of the deceased as Rs. 5000/- per month wherein the oral evidence
suggests that deceased was earning Rs. 6000/- per month. He submits that on
account of future prospects 40% should have been awarded, but the Tribunal has
awarded only 25%. He submits that on account of conventional head
Rs.70,000/- should have been granted by the Tribunal in terms of the judgment
passed by the Hon'ble Supreme Court in the case of National Insurance
Company Limited Vrs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680.
So far as Insurance Company is concerned he submits that the
Tribunal has rightly assessed the compensation which needs no interference.
The owner of the vehicle submits that the Tribunal has wrongly
granted the right of recovery. He submits that the vehicle had a route permit but
a mere deviation from the route, permit cannot be said to be the violation of the
condition of policy. He admits that no appeal has been filed against the said
finding.
Heard the counsel for the parties at length.
After hearing the parties at length, I find that admittedly the owner of
the vehicle has not preferred any appeal against a right to recovery which has
been granted to the Insurance Company. Further I find that the award is an ex-
partie award against the owner of the vehicle as he did not appear inspite of
notice before the Tribunal.
From the argument advanced by the parties and the nature of dispute, I
am only confining myself to the points raised by the parties and I am not
addressing the admitted facts of this case. Admittedly vehicle bearing BR 47
8887 was involved in the accident resulting in the death of the deceased. The
vehicle was admittedly insured with New India Assurance Company Limited.
Admittedly the deceased left behind more than four dependents. Thus the
Tribunal could not have deducted 1/3rd towards his personal expenses. 1/4th
should have been the correct deduction on account of personal expenses.
So far as income of the deceased is concerned, I find that the oral
evidence suggests that the deceased was earning Rs. 6000/- per month but the
Tribunal did not accept the same since evidence was not cogent. The Tribunal
assessed the income of the deceased as Rs. 5000/- per month considering Rs.
250/- as daily wages. I also find no illegality in the aforesaid computation. So far
as future prospects are concerned, admittedly the deceased was 40 years. That
being so this Court is not interfering with the amount of future prospects which
has been awarded. This Court is only interfering in the award wherein 1/3rd, by
way of personal expenses has been deducted, in place of 1/4th. Further this
Court is also interfering in the award wherein only a sum of Rs. 35,000/- has
been awarded on conventional head which should be Rs. 70,000/- in terms of the
judgment of the Hon'ble Supreme Court in the case of National Insurance
Company Limited (Supra).
Thus the amount of compensation which can be reassesed is as
follows:-
Rs.5000/- x 12 x 15 = Rs.9,00,000/-
Rs. 9,00,000/- - 1/4 = Rs.6,75,000/-
Rs.6,75,000/- + 30% = Rs.8,77,500/-
Rs. 8,77,500/- + 70,000/- = Rs.9,47,500/-
The Tribunal has awarded sum of Rs. 8,14,940/- as compensation.
Thus the balance amount comes to Rs. 9,47,500/- - Rs.8,14,940/- = Rs.
1,32,560/-. Thus the balance amount of Rs.1,32,560/- must be paid to the
claimants. Insurance Company is directed to pay the aforesaid amount within a
period of two months. This amount will carry interest @ 6% p.a from the date of
filing of this appeal i.e 05.02.2016 till actual date of payment. Insurance
Company has a right to recovery the aforesaid amount from the owner.
Accordingly, this appeal stands partly allowed.
I.A. No. 1241 of 2015
This application has been filed under Section 5 of the Limitation Act
praying to condone the delay of 1 day.
Counsel appearing on behalf of the respondents has got no objection,
if the delay is condoned.
After going through paragraphs of the instant application, I am
satisfied that delay has been properly explained.
Considering the aforesaid fact, the delay is condoned.
M.A. No. 485 of 2014
In view of the fact that right of recovery has been given to the
Insurance Company, which has not been challenged by the owner, this Court
feels that Insurance Company cannot be aggrieved by the aforesaid award, thus
the instant appeal stands dismissed.
Accordingly this appeal stands dismissed.
Statutory amount which has been deposited before this Court should
be refunded to the Insurance Company.
(ANANDA SEN , J)
anjali/ C.P 3
