Urmila Devi & Others vs Lal Rameshwar Nath Shahdeo & ...
2021 Latest Caselaw 2563 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 184 of 2019
                           ........

Urmila Devi & Others                        .... ..... Appellants
                             Versus
Lal Rameshwar Nath Shahdeo & Others         .... ..... Respondents

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

For the Appellants : Ms. Sunita Kumari, Advocate. For the Respondent No.3 : Mr. Manish Kumar, Advocate.

........

06/27.07.2021.

Heard, learned counsel for the appellants, Ms. Sunita Kumari and learned counsel for the Insurance Company, Mr. Manish Kumar.

Learned counsel for the appellants has submitted that claimants namely, (1) Urmila Devi, wife of Late Chhabilal Sahu, (2) Lalita Kumari, minor daughter of Late Chhabilal Sahu and (3) Hemant Sahu, minor son of Late Chhabilal Sahu (Claimant nos. 2 & 3 are minors represented through their mother and natural guardian Urmila Devi), have preferred this appeal for enhancement of the award dated 08.09.2017 passed by learned Principal District Judge- cum-M.A.C.T., Gumla, in M.A.C. Case No. 61/2014, whereby the claimants have been awarded compensation to the tune of Rs. 5,06,300/-. However, the learned Tribunal has deducted 50% on the ground of contributory negligence of the deceased and after deduction, the claimants are entitled for compensation to the tune of Rs. 2,53,150/-. Further, the amount of Rs. 50,000/- has already been paid under Section 140 of Motor Vehicles Act, as such, after deducting the amount of Rs. 50,000/-, the total award comes to Rs. 2,03,150/-, which shall be paid along with interest @ 7% from the date of institution of the case i.e. 29.09.2014 till the date of realization.

Learned counsel for the appellants has submitted that offending Gaurav Bus, bearing registration No. JH-01AV-8148, dashed the motorcycle from the back, which was not driven by the deceased, Chhabilal Sahu and as such, there cannot be any contributory negligence on the part of the deceased. The learned Tribunal has wrongly considered that because of non-examination of

the informant, who is the brother of the deceased and from perusal of F.I.R., which is marked as Exhibit-2, it appears to be a case of contributory negligence and deducted amount to the tune of 50% of the awarded amount.

Learned counsel for the appellants has submitted that case diary and lower court records have been called to verify as the brother of the deceased being informant of F.I.R. has not been examined, but other witnesses, who have been examined as A.W.1 namely, Rambriksh Sahu in para-3 of his deposition and A.W.-3, Harindar Sahu in paragraph-3 of his deposition have categorically stated that deceased, Chhabilal Sahu was a pillion rider on the motorcycle and that was dashed from the back side by the bus, as such, no contributory negligence can be attributed to the deceased.

Learned counsel for the appellants has submitted that from perusal of the charge-sheet, which has been brought on record and marked as Exhibit-3, it appears that charge-sheet has only been submitted against the driver of the offending bus and not against the driver of the motorcycle, as such, contributory negligence has wrongly been decided by the learned Tribunal.

Learned counsel for the appellants has submitted that under the conventional head, less amount has been paid to the tune of Rs.50,000/- i.e. Rs.10,000/- for funeral expenses, Rs.20,000/- for love and affection and Rs.20,000/- for loss of consortium, which ought to have been 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 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 (paragraph-59.8).

Learned counsel for the appellants has further submitted that interest has been awarded @ 7% per annum from the date of institution of the claim case i.e. 29.09.2014 till the date of realization, which ought to have been 7.5% per annum 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 notional income of Rs.3,000/- has been considered, though the deceased was owner of a hotel, where four persons were employed and his income has been claimed to be Rs.20,000/-, which the learned Tribunal has only considered as Rs.3000/- per month in absence of any documentary evidence.

Learned counsel for the Insurance Company, Mr. Manish Kumar has submitted that though the Insurance Company has not preferred this appeal, rather the amount awarded by the learned Tribunal has been satisfied to the claimants, but if this Court is considering the enhancement appeal, then for just and fair compensation, this Court may also consider that under the personal and living expenses, deduction has been made to the tune of 1/4 th, though in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt.) & Others Vrs. Delhi Transport Corporation & Another reported in (2009) 6 SCC 121. (Para-30), the number of dependents are three, as such, it ought to have been deducted as 1/3rd.

Learned counsel for the Insurance Company has further submitted that the deceased was a self employed, who lost his life at the age of about 48 years, as such, future prospect of the deceased may be granted @ 25% instead of @ 30% in view of the judgment passed by the Apex Court in the case Pranay Sethi (Supra) ( Para- 59.4) which falls under age group of 40 to 50 years.

Learned counsel for the Insurance Company has submitted that income may not be enhanced as no loss has been caused to the family because of death of deceased Chhabilal Sahu as his wife Urmila Devi is still running a hotel and getting income, though she has stated during her cross-examination at para-8 that after death of her husband the income has reduced, but she has not brought any documentary evidence.

Learned counsel for the Insurance Company has submitted that the learned Tribunal has rightly considered the income of the deceased to be Rs. 3,000/- per month in view of the judgment passed by the Apex Court in the case of New India Assurance Company Limited Vs. Yogesh Devi reported in (2012) 3 SCC 613. Paragraphs-

11 to 14 of which is profitably quoted hereunder:-

11. In our opinion, such an income cannot form the legal basis for determining the compensation.

12. In Jasbir Kaur case [(2003) 7 SCC 484 : 2003 SCC (Cri) 1671] the claim was based on an assertion that the deceased was an agriculturist earning an amount of Rs 10,000 per month by cultivating his land. Dealing with the question, this Court held: (SCC p. 487, para 8) "8. ... The land possessed by the deceased still remains with the claimants as his legal heirs. There is, however, a possibility that the claimants may be required to engage persons to look after the agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered."

13. Coming to the case on hand, the claim is based on the assertion that the deceased owned agricultural land apart from the abovementioned three minibuses. The High Court rejected the claim insofar as it is based on the income from the land, on the ground that the income would still continue to accrue to the benefit of the family. Unfortunately, the High Court failed to see that the same logic would be applicable even to the income from the abovementioned three buses. The asset (three minibuses) would still continue with the family and fetch income. The only difference, perhaps, would be that during his lifetime the deceased was managing the buses, but now, the claimants may have to engage some competent person to manage the asset, which, in turn, would require some payment to be made to such a manager. To the extent of such payment, there would be a depletion in the net income accruing to the claimants out of the asset. Therefore, the amount required for engaging the service of a manager and the salary payable to a driver--as it is asserted that the deceased himself used to drive one of the three buses-- would be the loss to the claimants. In the normal course the claimants are expected to adduce evidence as to what would be the quantum of depletion in the income from the abovementioned asset on account of the abovementioned factors. Unfortunately, no such evidence was led by the claimants.

14. In the circumstances, the judgment under appeal cannot be sustained as the finding of the High Court that the

claimants lost an amount of Rs 16,000 per month due to the death of Vijender Singh is neither based on any evidence nor the logic adopted by the High Court for arriving at such a conclusion is right. In the normal course, the matter should have been remitted to the Tribunal for further evidence for ascertaining of the basis upon which the compensation is to be determined. But having regard to the fact that the accident occurred a decade ago, we do not propose to remit the matter for further evidence.

Considering the rival submission of the parties, looking into the fact and circumstances of the case and judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639, this Court reconsider the compensation afresh. Para-8 of the aforesaid 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."

It appears that deceased lost his life at the age of 48 years in a motor accident, which was not attributed to the deceased as motorcycle was hit by the bus from the back, which was driven by some other person and the deceased was a pillion rider, as such, the deduction of 50% on the basis of contributory negligence by the learned Tribunal is hereby set aside, as there is no contributory negligence on the part of the deceased, which will be apparent from Exhibit-3 charge-sheet submitted in connection with Gumla (Sisai)

P.S. Case No. 20/2014, corresponding to G.R. No.67/14 vide Charge- sheet No.40/2014 dated 05.04.2014, which was submitted only against the driver of Gaurav bus bearing registration No. JH-01AV- 8148 namely, Sudhir Oraon.

So far the income is concerned, it appears that deceased was self employed person and he was running a hotel business, where some persons were employed, but no documentary evidence has been brought on record though the accident is of dated 14.01.2014 and in case of Chameli Devi Vs. Jivrail Mian reported in 2019 (4) TAC 724 SC, the Apex Court has considered the income of the deceased, who lost his life on 02.01.2001 being a carpenter to be Rs.5,000/- and as such, considering the deceased to be a owner of hotel, who has not produced any certificate or any document with regard to his income of Rs. 20,000/-, his income cannot be considered on the basis of oral and documentary evidence, but his income is certainly not Rs.3,000/- as four persons have been employed by the deceased, who was owner of the hotel.

Considering the same and the objection raised by learned counsel for the Insurance Company relying upon the judgment of Yogesh Devi (Supra), this Court considered that income of the deceased has not suffered, but it has been reduced, as the bread earner Chhabilal Sahu died and business is being run by the wife for subsistence of her family, accordingly, since in case of Chameli Devi(Supra), for an occurrence of 2001 the Apex Court has considered the income of the deceased to be Rs.5,000/- in absence of any documentary evidence, as such in the present case, income of the deceased, who was a owner of a hotel, employed some labourer, cannot be less then Rs.6,000/- per month even though his wife is earning livelihood from that hotel after his death as no contrary evidence has been brought on record by the Insurance Company to prove that no financial loss has been caused to the dependent of the deceased, accordingly, this Court considered the income of the deceased for computation of compensation to be Rs.6,000/- per month.

Accordingly, this Court is computing the compensation afresh:-

Income                             Rs. 6,000/- per month
Annual Income                      Rs. 6,000/- x 12 = Rs. 72,000/-
25% future prospect                Rs. 72,000/- + Rs. 18,000/-
Pranay Sethi (Para-59.4)           = Rs. 90,000/-

1/3rd deduction towards personal Rs. 90,000/- x 1/3 = Rs. 30,000/- and living expenses Sarla Verma (Para-30) Total Income Rs. 90,000/- - Rs. 30,000/- = Rs. 60,000/- Multiplier of 13 (as the deceased Rs. 60,000/- x 13 = Rs. 7,80,000/- 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. 7,80,000/- + Rs. 70,000/-

= Rs. 8,50,000/-

The Insurance Company is directed to indemnify the enhanced amount along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 29.09.2014 till realization of the same.

However, the amount which has already been paid under Section 140 of the Motor Vehicles Act to the tune of Rs.50,000/- or the amount paid pursuant to the compensation awarded by the learned Tribunal shall be deducted by the Insurance Company and the balance amount shall be indemnified by the Insurance Company to the claimants within a reasonable period, as the accident is of dated 14.01.2014.

Accordingly, the Miscellaneous Appeal is hereby allowed. I.A. No. 3845/2019 stands closed.

Let the LCR be sent down to the court below at once.

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