Jharkhand High Court
Krishna Prakash Sharma @ Krishna ... vs Krishna Kumar Singh on 29 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
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M.A. No. 150 of 2018
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1.Krishna Prakash Sharma @ Krishna Prasad Sharma
2.Miss Neha Sharma
3. Srijan Dadich @ Nikku ...... Appellants
Versus
1. Krishna Kumar Singh
2. The National Insurance Company Limited ......Respondents
With
M.A. No. 210 of 2018
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The National Insurance Company Limited ...... Appellant
Versus
1. Krishna Prakash Sharma @ Krishna Prasad Sharma
2. Miss Neha Sharma
3.Srijan Dadich @ Nikku
4. Krishna Kumar Singh ......Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Appellant(s) : Mr. Arvind Kr. Lall, Advocate (In M.A. No.150/2018)
Mr. Manish Kumar, Advocate (In M.A. No.210/2018)
For the Respondent(s) : Mr. Manish Kumar, Advocate (In M.A. No.150/2018)
Mr. Arvind Kr. Lall, Advocate (In M.A. No.210/2018)
06/Dated: 29/06/2021
1. Both Misc. appeals are arising out of a common award, as such, both the
appeals are being heard together and disposed of, by a common judgment.
2. Heard, learned counsel for the claimants/appellants, Mr. Arvind Kumar Lall
and learned counsel for the Insurance Company, Mr. Manish Kumar.
3. The claimants have preferred the Miscellaneous Appeal No.150 of 2018 for
enhancement of the award, whereas the Insurance Company has preferred the
Miscellaneous Appeal No.210 of 2018 for reduction in the quantum of award.
Both the sides have preferred the appeal against the same impugned award
dated 20.12.2017, passed by learned Presiding Officer, Motor Vehicles
Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No.148 of
2011 whereby the claimants, namely, 1.Krishna Prakash Sharma @ Krishna
Prasad Sharma, 2.Miss Neha Sharma and 3.Srijan Dadich @ Nikku have been
awarded compensation to the tune of Rs.24,69,730/- along with interest @ 12%
per annum from the date of award till its realization.
4. Mr. Arbind Kumar Lall, learned counsel for the claimants has assailed the
impugned award for enhancement of the compensation as well as the interest,
which has been granted by the learned Tribunal from the date of award instead
of from the date of filing of the claim application in view of Section 171 of the
MV Act, whereas the Insurance Company has assailed the impugned award on
the grounds that quantum of compensation has been paid on erroneous
consideration of income of the deceased- Alka Sharma, who lost her life in a
motor accident on 06.12.2010, while she was travelling as a pillion rider on a
motorcycle bearing registration no.JH-01V-6839 driven by her husband
namely, Krishna Prakash Sharma. The accident took place as soon as the
motorcycle reached near Khadim's show room at Circular Road, Ranchi at
about 6.30 A.M. offending vehicle Tractor Mahindra 275 DI bearing
registration no.JH-01F-7196 dashed against the motorcycle.
5. Mr. Manish Kumar, learned counsel for the Insurance Company has
submitted that there is delay of 8 days in preferring the appeal by the
Insurance Company and for condonation of the same, I.A. No. 3478 of
2018 has been preferred.
6. Learned counsel for the Insurance Company has further submitted that
the learned Tribunal has wrongly considered the income of the deceased
to be Rs.1,71,409/- per annum, on the basis of the Income Tax Return of
assessment year, 2009-10. To buttress his argument, learned counsel for the
Insurance Company has relied upon Annexure-1 at page 16 of the memo
of appeal though the same has been marked as Exhibit- 11 before the
learned Tribunal.
7. Mr. Manish Kumar, learned counsel for the Insurance Company has
submitted that from perusal of Annexure-1 at page 16 of the memo of
appeal, the income consists of two parts: (i) with regard to earning from
job to the tune of Rs.1,08,489/- and (ii) the income from other sources as
Rs.66,999/- (out of which Rs.36,000/- has been earned as the interest from
Shiv Shakti Minerals Rs.82/- as interest from SBI accounts, Rs.917/- as
interest of fixed deposit account and Rs.30,000/-miscellaneous receipts
and gifts offered for taxation in absence of any details.
8. Mr. Manish Kumar, learned counsel for the Insurance Company has
further submitted that this income of Rs.66,999/- is an income, which shall
not be suffered by the dependents, even after death of deceased- Alka
Sharma, as such, the income, which has been considered by the learned
Tribunal is contrary to the judgment passed by the Apex Court in the case
of New India Assurance Co. Ltd. v. Yogesh Devi, (2012) 3 SCC 613 at paras
11-14, which may profitably be 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."
9. Learned counsel for the Insurance Company has further submitted that
deceased, admittedly died on 06.12.2010 and the offending tractor was
insured before the National Insurance Company, but so far quantum of
compensation is concerned, the same is exorbitantly high.
10. Learned counsel for the Insurance Company, Mr. Manish Kumar has
further submitted that though the learned Tribunal has given reason to
grant interest from the date of award, but with exorbitantly high rate of
interest contrary to 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 where the interest has been awarded @ 7.5% per annum.
11. Learned counsel for the Insurance Company, Mr. Manish Kumar has
further submitted that reason has been assigned by the learned Tribunal
for awarding the interest from the date of award as there was laches on the
part of the claimants in pursuing the claim application before the learned
Tribunal.
12. Learned counsel for the Insurance Company has thus submitted that a
fresh calculation should be made by this Court for coming to a final
award, which shall be just and fair compensation in a benevolent
legislation, in view of the judgment passed by the Apex Court in the case of
Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011
(14) SCC 639 at Para-8, which has been referred above :-
"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."
13. Learned counsel for the claimants, Mr. Arbind Kumar Lall has
submitted that in a benevolent legislation the court of appeal may not be
so technical to consider these aspects of the matter, as this award is to be
paid to the family of the deceased, who suffered loss of their bread-earner,
as such, this Court may not interfere with the same.
14. Learned counsel for the claimants, Mr. Arbind Kumar Lall has further
submitted that, the analogous appeal i.e. M.A. No.150 of 2018 has been
preferred by the claimants for enhancement of the award from the date of
filing of claim application though the learned Tribunal has awarded
interest @ 12% per annum from the date of award instead of from date of
filing of the claim application in view of Section 171 of the MV Act.
15. Mr. Arvind Kumar Lall, learned counsel for the claimants has
submitted that from perusal of the impugned award, it appears that in the
month of May, 2011 i.e. 21.05.2011 the claim application was filed with
respect to accident, which took place on 06.12.2010. The matter remained
pending before the learned Tribunal for service of notice upon the owner
of the offending vehicle (O.P. No.1) and the Insurance Company (O.P.
No.2). The owner of the offending vehicle appeared on 20.12.2013, but no
written statement was filed. As such, the owner was debarred from filing
such written statement vide order dated 20.09.2014. The Insurance
Company/ O.P. No.2 has appeared before the learned Tribunal on
29.08.2013 and filed written statement on 17.09.2014. Thus, the issue was
framed only on 19.12.2014. There is no laches on the part of the claimants
from the date of filing i.e. 21st May, 2011 till 19.12.2014, as the same
remains pending because of the non co-operation by the Insurance
Company as well as the owner of the offending vehicle, as such, for this
period the claimants are entitled for interest.
16. Mr. Arvind Kumar Lall, learned counsel for the claimants has further
submitted that from 19.12.2014 till the claimants' witness has been closed
on 10.08.2016, when the witnesses have been examined on behalf of the
claimants, as such, for this period the interest ought to have been granted
by the learned Tribunal, but the learned Tribunal has only granted the
interest from the date of award, which is not proper. So far the
computation of income is concerned, in view of the judgment passed by
the Apex Court in the case of Yogesh Devi (supra), learned counsel has
fairly submitted that once the judgment has been passed by the Apex
Court, the same is binding to this Hon'ble Court.
17. Mr. Manish Kumar, Learned counsel for the Insurance Company has
submitted that if the explanation given by the claimants in Para -13 of the
Memo of Appeal is accepted, then it would be proper for this Court to
consider that from 19.12.2014 till 10.08.2016, when only two witnesses
have been examined by the claimants in the aforesaid 19 months
approximately, as such, the interest has rightly been awarded by the
learned Tribunal from the date of award, which does not require any
interference by this Hon'ble Court.
18. After hearing, learned counsel for the parties and looking into the facts
and circumstances of the case, this Court has found that the reason
assigned by the Insurance Company for condoning delay of 8 days in
preferring the appeal, is found to be satisfactory. No serious opposition
has been made by the claimants by filing any counter-affidavit. As such,
delay of 8 days in preferring the appeal by the Insurance Company is
hereby condoned.
19. I.A. No.3478 of 2018 in M.A. No.210 of 2018 is allowed.
20. So far the facts of this case are concerned, deceased (Alka Sharma) died on
06.12.2010 while travelling as a pillion rider of a Motorcycle bering Registration
No.JH01B-6839, driven by her husband, Krishna Prasad Sharma, which was hit
by Tractor bearing Registration no.JH-01F-7196, belonging to Krishna Kumar
Singh covered under the policy of Insurance issued by the National Insurance
Company Limited, under the Policy No.170206/31/09/63/00004331 for the period
i.e. 22.12.2009 to 21.12.2010. There was no violation of terms and conditions of
the policy, as such, the Insurance Company is liable to pay.
21. Since the quantum of compensation has been assailed by both the parties, as
such, this Court sitting in appeal has to consider the relevant principles and
determine the award as just and fair compensation.
22. The deceased- Alka Sharma lost her life at the age of 38 years. So far the
income of the deceased, computed by the learned Tribunal, this Court, in view of
the judgment, passed by the Apex Court in the case of Yogesh Devi (supra),
accepts the contention of the learned counsel for the Insurance Company that only
after the death of the bread-earner, net income from job is loss of the dependents
of the deceased, which is Rs.1,08,489/- in the present case as per Exhibit-11
(Annexure-1 page 16 of the memo of appeal).
23. So far income of the other source is concerned, the same will not be a loss
of the dependents, even after death of the deceased, the same will accrue and
received by the family of the deceased, as such, the income of the deceased
shall be Rs.1,08,489/- instead of Rs.1,75,490/- as considered by the learned
Tribunal.
24. Accordingly, this Court considers the income of the deceased as
Rs.1,08,489/- as per Exhbit-11.
25. The family comprises of three persons, as such, deduction towards living
and personal expenses of the deceased shall be 1/3rd in view of the judgment
passed by the Apex Court in the case of Sarla Verma (Smt.) & others vs. Delhi
Transport Corporation & another, reported in (2009) 6 SCC 121, para 30. The
deceased died at the age of 38 years, as such, multiplier of 15 is applicable for
the death of the person between the age of 36-40 in view of the judgment
passed by the Apex Court in the case of Sarla Verma (supra) at Para-42.
26. The deceased was self-employed, as such, is entitled for 40% Future
Prospect in view of the judgment passed by the Apex Court in the case of
National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16
SCC 680 at Para 59.4.
27. Under the conventional head, the amount of Rs.70,000/- has to be paid i.e.
for loss of estate as Rs.15,000/-, loss of consortium as Rs.40,000/- and funeral
expenses as Rs.15,000/- in view of the judgment passed by Apex Court in the
case of Pranay Setthi (Supra) at Para 59.8.
28. So far interest is concerned, the interest must have been granted simple
interest @7.5% in view of the judgment passed by the Apex Court in the case
of Dharampal (supra), from the date of filing of the claim application in view
of Section 171 M.V. Act, but in the instant case the learned Tribunal has
fastened the liability upon the claimants for delay and thus awarded from the
date of award.
29. This Court has perused the L.C.R. of this case and the grounds taken by the
claimants at Para-13 of the Appeal. It is true that accident took place on
06.12.2010 and the claim application was filed on 21.05.2011 and thereafter
the matter remained pending before the learned Tribunal for appearance of the
owner of the offending vehicle, who put his appearance on 20.12.2013, but did
not choose to file his written statement and thus, owner of the offending
vehicle was debarred from filing written statement on 20.09.2014.
The Insurance Company appeared on 29.08.2013 and filed written
statement on 17.09.2014 (about 13 months from the date of appearance) and
issue was settled on 19.12.2014, as such, from the date of filing of claim
application till the settlement of the issue i.e. 19.12.2014, claimants cannot be
saddled with responsibility of delay in disposal of the claim application.
However, from settlement of the issue on 19.12.2014 till the evidence was
closed by the claimants on 10.08.2016, in about 19 months only two witnesses
have been examined by the claimants, as such, claimants are not entitled for
any interest of the aforesaid period from 19.12.2014 till 10.08.2016, but
thereafter the matter remained pending which was decided by the learned
Tribunal on 20.12.2017, as such, claimants are entitled for the interest thereon.
30. Accordingly, this Court modifies the interest @7.5% per annum to be
simple interest from the date of filing of the claim application till the settlement
of the issue i.e. 19.12.2014 and thereafter from 11.08.2016 (after closure of
claimants evidence) till the date of indemnifying the award by the Insurance
Company.
31. The new calculation chart would be as follows :-
Annual Income Rs.1,08,489/-
1/3rd deduction towards personal Rs.1,08,489/- minus Rs.36,163/- =
and living expenses as dependents Rs.72,326/-
of the deceased are three in number
[Sarla Verma (Supra) para 30]
Multiplier as 15 as deceased was in Rs.72,326/- x 15 = Rs.10,84,890/-
the age group of 36-40 [Sarla
Verma (Supra) at para 42]
Future Prospect @ 40% [Pranay Rs.10,84,890/- + Rs.10,84,890/- x
Sethi (supra) at para 59.4] 40% [Rs.4,33,9569/-] =
Rs.15,18,846/-
Conventional Head [Pranay Sethi Rs.70,000/-
(supra) at para 59.8]
Total Compensation Amount Rs.15,18,846/- + Rs.70,000/- =
Rs.15,88,846/- with simple interest @
7.5% per annum from the date of
filing of the claim application till the
settlement of the issue i.e. 19.12.2014
and thereafter from 11.08.2016 till the
date of indemnifying the award by the
Insurance Company.
32. It has been submitted by Mr. Manish Kumar, learned counsel for the
Insurance Company that till date, pursuant to the order dated 12.04.2019
passed by the Co-ordinate Bench of this Court, a sum of Rs.18 Lacs has
already been deposited by the Insurance Company before the learned Tribunal,
as such, the interest shall be paid till the date when the amount of award has
been deposited by the Insurance Company and the same has already been
disbursed to the claimants.
33. Out of total compensation amount, Rs.50,000/- shall be deducted, if paid under
Section 140 M.V. Act and any other amount, if the insurance company has already
indemnified to the claimants shall also be deducted.
34. The statutory amount paid in M.A. No.210 of 2018 shall be remitted to the
learned Tribunal by learned Registrar General of this Court within a period of four
weeks from today and if the awarded amount as calculated by this Court has
already been indemnified by the Insurance Company, the same shall be returned to
the Insurance Company otherwise the amount shall be disburshed to the claimants
after due notice and verification by the learned Tribunal.
35. The balance amount of the quantum as calculated by this Court, if any, shall be
indemnified by the Insurance Company within a reasonable period as the accident
is of dated 06.12.2010.
36. Accordingly, M.A. No.150 of 2018 is hereby partly allowed by modification
in date of interest whereas M.A. No.210 of 2018 is allowed.
37. I.A. No.5832 of 2020 is closed.
38. Let LCR be sent down to the court below forthwith.
(Kailash Prasad Deo, J.)
sandeep
