Sunaina Devi & Others vs Divisional Manager
2021 Latest Caselaw 2493 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 236 of 2018
                          ........

Sunaina Devi & Others                 .... ..... Appellants
                              Versus

Divisional Manager, The New India Assurance Company Limited & Others .... ..... Respondents

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

For the Appellants : Mr. Arvind Kumar Lall, Advocate. For the Respondent No.1 : Mr. Amaresh Kumar, Advocate ........

07/23.07.2021.

Heard, learned counsel for the appellants, Mr. Arvind Kumar Lall and learned counsel for the New India Assurance Company Limited, Mr. Amaresh Kumar.

The appellants namely, (1) Sunaina Devi (2) Sandhya Kumari, and (3) Dhrup Kumar (appellant nos. 2 & 3 are presently minor, as such, they are being represented through their mother and natural guardian appellant no.1, Sunaina Devi), have preferred this appeal for enhancement of the award dated 20.01.2018 passed by learned District Judge-I-cum-Presiding Officer, Motor Accident Claim Tribunal, Bermo at Tenughat in Motor Accident Claim Case No.98/2011, whereby the claimants namely, (1) Sunaina Devi (2) Sandhya Kumari, and (3) Dhrup Kumar (appellant nos. 1 to 3 herein) and Renu Kumari (proforma respondent no.4 herein), have been awarded compensation to the tune of Rs.9,11,000/- along with interest @ 6% per annum from the date of filing of the claim application i.e. 23.11.2011 till the realization of the same.

Learned counsel for the appellants, Mr. Arvind Kumar Lall has assailed the impugned award on the ground 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 and Ors. reported in (2017) 16 SCC 680 (Para- 59.4) as well as Kirti & Anr. etc. Vs. Oriental Insurance Company Ltd. reported in (2021) SCC Online SC 3.

Learned counsel for the appellants has further submitted that under the conventional head, less amount has been paid to the tune of Rs.25,000/-, which ought to have been Rs.70,000/- i.e. Rs.

15,000/- as loss of estate, Rs. 40,000/- as loss of consortium and Rs. 15,000/- as funeral expenses, in view of the judgment passed by the Hon'ble Apex Court in the case of Pranay Sethi (Supra).

Learned counsel for the appellants has further submitted that interest has been awarded @ 6% per annum, which ought to have been @ 9% per annum in view of recent judgment passed by the Apex Court in the case of Kirti & Anr. etc. (supra), as such, the compensation may be enhanced.

Learned counsel for the appellants has further submitted that age of the deceased has been considered on the basis of assessment made in the postmortem report to be 50 years, though Ext.-4 the voter ID card of the deceased, Ganga Kasera has been brought on record, which suggest that the age of the deceased was 43 years as on 01.01.2007 and as such, on the date of accident, he was aged about 47 years.

Learned counsel for the appellants has further submitted that necessary correction may be made for enhancement of the award because multiplier will change in view of the judgment passed by the Hon'ble Apex Court in the case of Sarla Verma (Smt.) & Others Vrs. Delhi Transport Corporation & Another reported in (2009) 6 SCC

121. Learned counsel for the New India Assurance Company Limited, Mr. Amaresh Kumar has opposed the prayer and has submitted that so far age of deceased is concerned, in absence of any documentary evidence admissible under the law, the learned Tribunal has rightly considered the age of the deceased on the basis of assessment made by the doctor in the postmortem report.

Learned counsel for the New India Assurance Company Limited has further submitted that claimants have not brought the Class-X certificate of the deceased or the first school going certificate of the deceased or even the Janam Kundali which can suggest with regard to age. In absence of these documentary evidence, the postmortem report is to be considered in a case of claim application, as such, the ground taken by the appellants with regard to the age of the deceased may be rejected.

Learned counsel for the New India Assurance Company Limited has further submitted that interest has been rightly awarded @ 6% per annum in view of the judgment passed by the Hon'ble Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (4) JCR 79 (SC). Paragraphs- 13 & 14 of which may profitably be quoted hereunder:-

13. However, in the year 2005 in T.N. State Transport Corpn. Ltd. v. S. Rajapriya [(2005) 6 SCC 236 : 2005 SCC (Cri) 1436] this Court again taking note of the then prevailing rate of interest on bank deposits directed for lowering the rate of interest fixed by the Tribunal at 9% per annum and altered the same to 7.5% per annum.

14. In the backdrop of the aforesaid legal position, we may now examine the facts of the present case. The accident in the present case had taken place on 1-9-2004 and the Tribunal had passed the award on 18-5-2005. Rate at which the interest is to be awarded would normally depend upon the bank rate prevailing at the relevant time. Since in T.N. State Transport Corpn. Ltd. [(2005) 6 SCC 236 : 2005 SCC (Cri) 1436] decided in the month of April 2005, the prevailing rate of interest on bank deposits was found and held to be 7.5% per annum, we consider it appropriate to award the same rate of interest, as the same was the prevailing rate of interest on the date of the passing of the award i.e. 18-5-2005 in the present case. Consequently, we hold that the appellants would be entitled to be paid interest at the rate of 7.5% from the date of application till the date of payment.

Learned counsel for the New India Assurance Company Limited has further submitted that occurrence took place on 31.01.2011 and at that time, the prevailing rate of interest on bank deposits was @ 6% per annum, as such, the interest may not be enhanced.

This Court has considered the submission of the counsel for the parties. In view of the judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639 (Para-8), this Court has to decide just and fair compensation. Para-8 of the said judgment 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."

Brief facts of the case is that deceased, Ganga Kasera was coming from Bishnugarh to Gomia on 31.01.2011 in a commander Jeep bearing registration No.BR 13P-0920 with several other passengers. At around 3.15 P.M., the jeep reached the place called as Jamnijara (Gomia-Bishnugarh main road) and stopped for alighting some passengers from the vehicle. In the meantime, the offending Truck bearing registration No. HR-13J -9154 being driven rashly and negligently hit the jeep dragging the same to a distance ultimately crashing it into an adjacent hotel, as a result of which, five persons including the deceased died on the spot. The deceased was unknown aged about 50 years and even in the postmortem report, it has been mentioned deceased to be unknown aged about 50 years. However, the deceased was identified in the police station by P.W.-2 Arun Kumar.

The offending Truck was duly insured before the New India Assurance Company Limited under the Policy No. 32350031090100201745 valid for the period from 28.03.2010 to 27.03.2011 and while deciding the issue, Insurance Company has failed to bring anything on record to suggest that there is a violation of terms and condition of the policy, as such, the Insurance Company has accepted the liability, but has opposed the enhancement appeal.

It appears that the deceased died at the age of 50 years, leaving behind four dependents. Deceased was a Hawker of kitchen utensils

earning Rs.300/- per day or more i.e. Rs. 8,000/- per month from his occupation as a Hawker of kitchen utensils.

Accordingly, this Court is computing the compensation afresh:-

Income                             Rs. 8,000/- per month
Annual Income                      Rs. 8,000/- x 12 = Rs. 96,000/-
10% future prospect                Rs. 96,000/- + Rs. 9,600/-
Pranay Sethi (Para-59.4)           = Rs. 1,05,600/-

1/4th deduction towards personal Rs. 1,05,600/- x 1/4 = Rs. 26,400/-

and living expenses
Sarla Verma (Para-30)
Total Income                       Rs. 1,05,600/- - Rs. 26,400/-
                                   = Rs. 79,200/-

Multiplier of 13 (as the deceased Rs. 79,200/- x 13 = Rs. 10,29,600/- was in the age group of 46-50 years) Sarla Verma (Para-42) Conventional Head Rs. 70,000/- i.e. Rs. 15,000/- as loss of Pranay Sethi (Para-59.8) estate, Rs. 40,000/- as loss of consortium and Rs. 15,000/- as funeral expenses.

Total Compensation Amount Rs. 10,29,600/- + Rs. 70,000/-

= Rs. 10,99,600/-

The Insurance Company is directed to indemnify the enhanced amount along with interest @ 7.5% per annum in view of the consistent view taken by this Court following the ratio laid down by the Apex Court in the case of Dharmapal (supra) as the accident took place on 31.01.2011 and the Insurance Company has not brought any evidence on record to suggest that prevalent rate of interest at the time of accident was less than 7.5% per annum and the Apex Court has considered such eventuality and quantified the interest on the compensation amount to be @ 7.5% per annum.

Accordingly, the Miscellaneous Appeal is hereby allowed. The awarded amount, which has already paid by the Insurance Company either under Section 140 of the Motor Vehicles Act or pursuant to the award passed by the learned Tribunal, shall be deducted from the total compensation calculated and computed by this Court and the balance amount shall be paid within a reasonable period as the accident is of dated 31.01.2011 when deceased died leaving behind widow, two minor daughters and a minor son.

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