Saraswati Devi & Others vs M/S E.F.C. Logistics India Pvt. ...
2021 Latest Caselaw 2419 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 286 of 2020
                          ........

Saraswati Devi & Others .... ..... Appellants Versus M/s E.F.C. Logistics India Pvt. Ltd & Another .... ..... Respondents

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

For the Appellants : Mr. Gaurav Kumar, Advocate. For the Respondent No. 2: Mr. Manish Kumar, Advocate.

........

04/20.07.2021.

Heard, learned counsel for the appellants, Mr. Gaurav Kumar and learned counsel for the National Insurance Co. Ltd., Mr. Manish Kumar.

Learned counsel for the appellants has submitted that the appeal has been preferred by the claimants namely, (1) Saraswati Devi, wife of Late Birsa Mahato, (2) Hemanti Kumari, daughter of Late Birsa Mahato, (3) Khusboo Kumari, daughter of Late Birsa Mahato, (4) Reshmi Kumari, daughter of Late Birsa Mahato, (5) Jeeru Kumari, daughter of Late Birsa Mahato, (Claimant Nos. 2 to 5 being guided & represented by their natural guardian mother claimant no. 1, Sarswati Devi) and (6) Kaila Mahto, son of Late Gandhori Mahto, for enhancement of the award dated 01.02.2020 passed by learned District Judge-V-cum-Motor Accident Claim Tribunal, Dhanbad in Motor Accident Claim Case No. 224/2018, whereby the claimants have been awarded compensation to the tune of Rs. 10,82,500/- to be paid within 30 days from the date of award along with interest @ 6% per annum from the date of filing of the suit i.e. 14.09.2018 till its realization. Learned Tribunal has further directed that the amount of Rs. 50,000/- which has already been paid under Section 140 of the Motor Vehicles Act shall be deducted from the compensation amount.

Learned counsel for the appellants has submitted that the learned Tribunal has considered less income of the deceased, who was a Khalasi/cleaner of Hywa truck and earning Rs. 8,000/- per month and minimum wages are more than that.

Learned counsel for the appellants has further submitted that that interest has been granted @ 6% per annum, which ought to have been granted @ 7.5% from the date of filing of the claim application 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), as such, this Court may enhance the same.

Learned counsel for the respondent no. 2 - The National Insurance Company Limited, Mr. Manish Kumar has opposed the prayer and has submitted that the learned Tribunal has rightly considered the income of deceased as Rs. 6,000/- per month, in view of the judgment passed by the Apex Court in the case of Chameli Devi Vs. Jivrail Mian reported in 2019 (4) TAC 724 SC, where the Apex Court, in absence of any documentary evidence has considered the income of a Carpenter, who lost his life on 02.01.2001 to be Rs. 5000/-, as such, this Court may not enhance the compensation.

Considering the rival submission of the parties and looking into facts and circumstances of the case, it appears that the deceased Birsa Mahto was working as a Khalasi of Hywa truck. On 08.08.2017, at about 9:15 A.M. deceased along with Pradip Kumar was going on Passion Pro motorcycle, bearing registration no. JH- 10A-8762 and when they reached at Deepak Chowk near rest house Makauli, a ten wheeled truck bearing registration no. NL-01K-9447, being driven rashly and negligently came there all of a sudden from back side and dashed the motorcycle. As a result of which, the deceased Birsa Mahto fell down on the ground and wheel of the truck ran over his body causing grievous head injury. With the help of local people, the deceased was brought to Central Hospital, Dhori, where the doctors declared him dead. Report of accident was lodged at Chandrapura police station and a criminal case being Chandrapura P.S. Case No. 95/2017, corresponding to G.R. Case No. 707/2017, under Sections 279, 337, 338, 304(A) I.P.C. was registered against the driver of ten wheeler truck bearing registration no. NL-01K-9447 and after completion of investigation, charge-sheet was submitted under Section 279/337/338/304(A) of the I.P.C. against Fudin Bhagat, driver of Hywa truck bearing registration No. NL-01K-9447. The offending vehicle ten wheeled truck bearing registration no. NL-

01K-9447 was owned by O.P. No. 1 M/s E.F.C. Logistics India Pvt. Ltd at the time of accident and the said offending truck was insured before O.P. No. 2 National Insurance Co. Ltd. vide Policy No. 101800311610000976 valid from 31.03.2017 to mid night of 30.03.2018.

The documents have been brought on record as Exhibit-1 Salary Certificate issued by Birbal Mahto dt. 05.09.18, Exhibit-2 Certified copy of FIR of Chandrapura P.S. Case No. 95/17, Exhibit-3 Certified copy of charge-sheet and Exhibit-4 Photo copy of postmortem report of deceased Birsa Mahto, but no documentary or oral evidences has been produced on behalf of the defendant no. 2 - National Insurance Co. Ltd.

After hearing learned counsel for the parties, this Court considered the income of the deceased to be Rs. 8,000/- per month as claimed by claimants in view of judgment passed by Apex Court in the case of Chameli Devi (Supra), wherein Hon'ble Apex Court in case of a Carpenter has considered income as Rs. 5,000/- for the occurrence dated 02.01.2001, in absence of any documentary evidence and the present occurrence is dated 08.08.2017. The future prospect shall be granted @ 25% as the deceased died at the age of about 40 years, which falls between the age group of 40 -50 years in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (Para-59.4). The deduction shall be 1/4th in view of the judgment passed by the Apex Court in case of Sarla Verma (Smt.) & Others Vrs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 (Para-30) as the deceased left behind six family members as dependents. The deceased died at the age of about 40 years, as such, multiplier of 15 is applicable, which falls under the category of 36 to 40 years in view of Sarla Verma (Smt.) (Supra)(Para-42) and under the conventional head, Rs. 70,000/- i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate shall be granted. So far the interest is concerned, it appears that interest has been awarded @ 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).

Considering the aforesaid facts and circumstances of the case and on the basis of materials brought on record, this Court is calculating the compensation afresh:-

Income                             Rs. 8,000/- per month
Annual Income                      Rs. 8,000/- x 12 = Rs. 96,000/-
25% future prospect              Rs. 96,000/- + Rs. 24,000/-

Pranay Sethi (Para-59.4) (Supra) = Rs. 1,20,000/- 1/4th deduction towards personal Rs. 1,20,000/- x 1/4 = Rs. 30,000/-

and living expenses
Sarla Verma (Para-30) (Supra)
Total Income                       Rs. 1,20,000/- - Rs. 30,000/-
                                   = Rs. 90,000/-

Multiplier of 15 (as the deceased Rs. 90,000/- x 15 = Rs. 13,50,000/-

was in the age group of 36 to 40 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. 13,50,000/- + Rs. 70,000/-

= Rs. 14,20,000/-

The amount of Rs. 14,20,000/- shall be paid along with interest @ 7.5% per annum from the date of filing of claim application.

However, the amount paid by the Insurance Company under Section 140 of the Motor Vehicles Act and also any amount, if indemnified by the Insurance Company pursuant to award passed by the learned Tribunal, shall be deducted from the aforesaid amount and the balance amount shall be paid to the claimants by the Insurance Company within a reasonable time, as the accident was of dated 08.08.2017 and deceased has left behind his widow, four children and father.

Accordingly, the miscellaneous appeal is hereby allowed.

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