Divisional Manager vs Md. Jivrail @ Jibrail
2021 Latest Caselaw 1174 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Civil Miscellaneous Appellate Jurisdiction)
                         M.A. No. 22 of 2016
                              ......

Divisional Manager, New India Assurance Co. Ltd. ....... Appellant Versus

1. Md. Jivrail @ Jibrail

2. Jubeaida Khatun

3. Rakaiya Khatoon

4. Md. Imran

5. Md. Irfan

6. Md. Rizwan Akhatar @ Md. Rizvan Akhtar ......Respondents

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

For the Appellant : Mr. Alok Lal, Advocate For the Respondent Nos.2-5 : Mr. Rajiv Anand, Advocate

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10/Dated: 09/03/2021.

Heard, learned counsel for the parties.

The New India Assurance Co. Ltd. has preferred this instant Miscellaneous Appeal against the award dated 11.09.2015 passed by learned District Judge-I- cum-Presiding Officer, Motor Vehicle Accident Claim Tribunal, Lohardaga in Compensation Case No.55 of 2010, whereby the claimants namely, 1. Md. Jivrail @ Jibrail, 2. Jubeaida Khatun, 3. Rakaiya Khatoon, 4. Md. Imran and 5. Md. Irfan have been awarded compensation to the tune of Rs.7,73,000/- to be paid within one week, failing which interest @ 6% per annum shall be applicable, from the date of award till the date of realization.

Learned counsel for the appellant, Mr. Alok Lal has submitted that learned Tribunal has granted right to recover the compensation amount from the owner of the offending vehicle registration no.JH 01 M/3929, Md. Rizwan Akhatar @ Md. Rizvan Akhtar subject to violation of the terms of the policy, in favour of the Insurance Company after indemnifying the Award to the claimants and the award shall become executable after depositing the arrears of court fee, if any, on the part of the claimants.

Learned counsel for the appellant has further submitted that deceased was a cleaner in the offending bus bearing registration no.JH 01 M/3929 and the deceased was not covered under the Insurance Policy.

Learned counsel for the appellant has further submitted that the bus was over-loaded.

Learned counsel for the appellant has further submitted that under the conventional head, loss of consortium as Rs.1 lacs and funeral expenses as Rs.25,000/- have been awarded, which is contrary to 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 59.8, which ought to have been Rs.70,000/- i.e. for loss of estate to be Rs.15,000/-, for loss of consortium to be Rs.40,000/- and for funeral expenses to be Rs.15,000/-, as such, the amount may be deducted.

Learned counsel for the appellant has further submitted that under the future prospect of the deceased, learned Tribunal has awarded 50% of the amount, which is contrary to 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 whereby since the deceased lost his life at the age of less than 40 years, as such, the claimants are entitled for 40% as future prospect in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra).

Learned counsel for the respondents/claimants, Mr. Rajiv Anand has fairly submitted that deceased was a cleaner and he died in the motor vehicle accident. The learned Tribunal has considered the future prospect on the higher side and conventional head on the higher side, but with respect to the income the learned Tribunal has not considered the oral evidence adduced by the claimants where consistent evidence with regard to monthly income of Rs.3,750/- has been laid by the claimants, which has been considered by the learned Tribunal as Rs.3,000/- without any substance.

Learned counsel for the respondents/claimants has placed judgment passed by the Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC, wherein, in absence of any documentary evidence, the Apex Court has considered the income of the deceased, who was a carpenter and died in the year, 2002 to be Rs.5,000/-. The claimants are not praying for Rs.5,000/- but certainly the claimants are praying this Court to consider the income of the deceased as Rs.3,750/- , as such, this Court may consider the same.

Learned counsel for the respondents/claimants has further submitted, that interest ought to have been granted from the date of institution of the claim application in view of Section 171 of the MV Act or the Court may differ but after assigning reason attributing the delay upon the claimants, but in absence of the same, the learned Tribunal ought to have granted 7.5% interest from the date of institution 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, wherein the Apex Court has considered, the interest should be on the basis of prevalent bank rate of interest at the time of occurrence. It is very difficult to ascertain the same, as the occurrence is of dated 11.04.2010, as such, the Apex Court

in the case of Dharampal & Sons (supra) has quantified the same to be 7.5% simple interest per annum and that shall be payable to the claimants from the date of institution of the claim application in view of Section 171 of the MV Act, as no reason has been assigned by the learned Tribunal for awarding the same from the date of order.

Learned counsel for the respondents/claimants has further submitted, that so far observation, which has been made with regard to the award that the same become executable after depositing the arrears of court fee, if any. The same has already been deposited and if the same has not been deposited, the claimants are ready to deposit with same, before the compensation amount is received by the claimants.

Learned counsel for the respondents/claimants has fairly submitted that though the claimants have not preferred any appeal for enhancement, but ratio laid down by the Apex Court in the Case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 completely gives a guidelines in para 8.

Para 8 of Ranjana Prakash (Supra) which may profitably be 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."

Since the quantum of compensation has been assailed by the Insurance Company, as such, this Court may irrespective of who files appeal, examine the fact and by applying relevant principles, determine just and fair compensation, but if compensation is to be enhanced in absence of any appeal preferred by the claimants then in an appeal preferred by the Insurance Company, this Court may not enhance the same rather dismiss the appeal, but if compensation is to be reduced in the appeal of the appellant- Insurance Company in absence of any appeal for enhancement by the claimants, the same shall be reduced, as such, this Court may consider after calculating the compensation, if the same is going to be reduced that can be reduced, but if the same is going to be enhanced in any appeal preferred by the Insurance

Company considering just and fair compensation, then instead of enhancing the same, the appeal of the Insurance Company may be dismissed as the claimants have not preferred any appeal for enhancement.

This Court considers that admitted fact of the case is that the deceased, Md. Naushad Alam S/o Md. Jivrail, who was working as a Khalasi / cleaner in Bus bearing registration No.JH01M-3929, lost his life on 11.04.2010, as the bus got turtle. There is no dispute that vehicle was insured before the Insurance Company. So far the observation which has been given by the learned Tribunal that Insurance Company shall have right to recover the compensation amount from owner of the offending vehicle, Md. Rizwan Akhatar @ Md. Rizvan Akhtar subject to violation of terms of the policy i.e. serial No.038235 vide Policy No.540301/31/09/01/00003597 valid from 26.08.2009 to midnight of 25.08.2010, this Court is not interfering with the same. Now this Court has examined that deceased was aged about 24 years 10 months and as such, the multiplier shall be 18 in view of the judgment passed by Apex Court in the case of Sarla Verma (Smt.) Vrs. Delhi Transport Corporation reported in (2009) 6 SCC 121 para-42.

So far the income is concerned, deceased was a cleaner and consistent oral evidence has been given with regard to Rs.3,750/-, no documentary evidence has been brought on record, the learned Tribunal has considered it to be Rs.3,000/-, as such, this Court consider in view of the judgment passed by the Apex Court in the case of Chameli Devi (Supra), that a carpenter who lost his life in the year 2002 in absence of documentary evidence the Apex Court has considered his income to be Rs.5,000/- for computation of compensation, but in the present case there is consistent evidence with regard to Rs.3750/-, and claimants have not made claim with regard to Rs.5,000/-, as such, considering the ratio laid down by the Apex Court in the case of Chameli Devi (Supra), this Court is considering the income of the deceased to be Rs.3750/-.

Further, with respect to deduction for personal and living expenses, the Tribunal has considered 1/3rd, which should be 1/4th in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt.) Vrs. Delhi Transport Corporation reported in (2009) 6 SCC 121 (Paras-30).

So far future prospect is concerned, admittedly the deceased died below the age of 40 years, as such, in view of the judgment passed by the Apex Court in the case of Pranay Sethi(Supra) para-59.4, the future prospect ought to have been 40%.

So far the computation of compensation under the conventional head is concerned, the learned Tribunal has granted Rs.1,25,000/-, 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 Pranay Sethi (Supra) para-59.8.

Accordingly, this Court is computing the compensation afresh:-

       Income                                   Rs. 3,750/- per month
       Annual Income                            Rs. 3,750/- x 12 = Rs. 45,000/-
       40% future prospect                      Rs. 45,000/-       +    Rs.   18,000/-
                                                = Rs. 63,000/-
       Pranay Sethi (Supra) para-59.4

1/4th deduction towards personal and Rs. 63,000/- x 1/4 = Rs. 15,750/-

       living expenses

       (Sarla Verma Supra) para-30
       Total Income                             Rs. 63,000/- - Rs. 15,750/-

                                                = Rs. 47,250/-

Multiplier of 18 (as the deceased was Rs.47,250/- x 18 = Rs. 8,50,500/-

       in the age group of 21-25 years)
       Sarla Verma (Supra) para-42
       Conventional Head                        Rs. 70,000/-

       Pranay Sethi (Supra) para-59.8
       Total Compensation Amount                Rs. 8,50,500/- + Rs. 70,000/-

                                                = Rs. 9,20,500/-

The compensation amount calculated by this Court is higher than what the learned Tribunal has awarded, but in absence of any appeal preferred by the claimants this Court cannot enhance the same in an appeal preferred by the Insurance Company in view of the judgment passed by the Apex Court in this case of Ranjana Prakash (Supra).

Accordingly, this Court restrains from interfering with the same, accordingly, the instant appeal preferred by the Insurance Company is hereby dismissed.

The statutory amount deposited by the Insurance Company shall be remitted by the learned Registrar General within four weeks' from today to the learned Tribunal, who shall after deducting the court fee, indemnify the award in favour of the claimants, if not already paid.

The balance amount shall be indemnified by the Insurance Company within a reasonable time. So far right to recover given by the learned Tribunal subject to violation of terms and conditions of the Insurance policy that remain untouched by this Court.

If any of the claimants had died during pendency of the appeal, since the matter is pending since 2010 then such affidavit shall be taken on record and amount shall be disbursed to the surviving claimants in terms of the award passed by the learned Tribunal.

(Kailash Prasad Deo, J.) Jay-R.S./