Jharkhand High Court
Most Pramila Devi & Others vs Mahendra Saw & Others on 17 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 65 of 2018
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Most Pramila Devi & Others .... ..... Appellants
Versus
Mahendra Saw & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
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For the Appellants : Mr. Prabhash Chandra Sinha, Advocate.
For the Respondent No.2 : Mr. Alok Lal, Advocate.
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07/17.03.2021.
Learned counsel for the appellants, has submitted, that I.A.
No.2508/2019 has been filed for condonation of delay of 85 days in
preferring the appeal, as the poor widow and minor children have not
preferred the appeal in time, which may be condoned in a beneficial
legislation.
Learned counsel for the Insurance Company, Mr. Alok Lal has
opposed the prayer for condonation.
Considering the fact and circumstance of the case, the appeal has
been preferred by the widow and minor children, accordingly, delay is
hereby condoned, but with condition that from the date of indemnifying
the award by the Insurance Company till the date of issuance of notice
upon the Insurance Company i.e.12.07.2019, the claimants are not entitled
for any interest.
Accordingly, I.A. No.2508/2019 is disposed of.
Heard, learned counsel for the appellants, Mr. Prabhash Chandra
Sinha and learned counsel for the respondent No.2, Mr. Alok Lal.
Learned counsel for the appellants, has submitted, that the
claimants, namely, (1) Most. Pramila Devi (2) Sony Kumari, (3) Tony
Kumari (4) Hukwa Kumari and (5) Sabita Kumari (claimants no. 2 to 5
are minor represented through their mother, Most. Pramila Devi), have
preferred this appeal for enhancement of the award dated 29.7.2017
passed by learned District Judge-VI-cum-Presiding Officer, M.A.C.T. Act,
Giridih in Title (M.V.) Claim Case No.31/2012, whereby the claimants
have been awarded compensation to the tune of Rs.5,00,000/- alongwith
interest @ 7% per annum from the date of filing of the claim application
till its realization.
Learned counsel for the appellants has further submitted that the
offending vehicle Tempo, bearing registration No.JH10W-3788 was
insured before Bajaj Allianz General Insurance Company Ltd. vide policy
No.OG-12-9995-1803-00002820 effective for the period from 28.05.2011
to 27.05.2012 and as such, Insurance Company is liable to pay the
compensation.
Learned counsel for the appellants has further submitted, that
deceased Devi Saw was a mason, he was earning a sum of Rs.4500/- per
month and died at the age of 38 years, but learned Tribunal has considered
the income of the deceased as Rs.4,000/- per month and has also not
granted future prospect to the tune of 40% 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-59.4.
Learned counsel for the appellants has further submitted, that under
the conventional head the learned Tribunal has granted only Rs.10,000/-,
which is a meagre amount, contrary to the judgment passed by the Apex
Court in the case Pranay Sethi (Supra) Para-59.8 whereby the
compensation towards conventional head ought to be granted to the tune
of 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.
Learned counsel for the appellants has further submitted, that
though the interest has been granted from the date of filing of the claim
application till its realization in view of Section 171 of the Motor Vehicles
Act, but it has been granted @ 7% per annum, 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 respondent no.2 i.e. Bajaj Allianz General
Insurance Company Ltd., Mr. Alok Lal has opposed the prayer and has
submitted that learned Tribunal has rightly considered the income of the
deceased as Rs.4,000/- per month against the claim of Rs.4,500/- per
month in absence of any documentary evidence, as such, this Court may
not interfere with the same.
Learned counsel for the Insurance Company has further submitted,
that interest granted by the learned Tribunal is the prevalent bank rate of
interest, which may not be enhanced by this Court as the amount has
already been indemnified by the Insurance Company and the Insurance
Company has not preferred any appeal against the impugned award.
Considering the rival submissions of the parties, looking into facts
and circumstances of the case, it appears that deceased Devi Saw, who
was travelling in tempo bearing registration No. JH10W-3788 along with
her daughter Tony Kumari and others, from Sona Pahari Mandir. The said
tempo turned turtle due to rash and negligent driving of the driver of the
Tempo, as a result, Devi Saw died on the spot. On the basis of fardbeyan
of the Chowkidar 2/2 Rajendra Prasad, Police registered Bagodar P.S.
Case No.253/2011, dated 26.11.2011. The vehicle was duly insured before
the Bajaj Allianz General Insurance Company Ltd. at the relevant time of
accident and the Insurance Company has not preferred any appeal for
shifting the liability upon owner of the offending vehicle, as such, the
legal position is admitted between the parties.
It appears from the record that deceased, died at the age of 38 years
leaving behind five dependents, while working as a mason and earning
Rs.4500/- per month as claimed by the claimants, but no documentary
evidence has been brought on record by the claimants, the learned
Tribunal has considered the income of the deceased to be Rs.4,000/- per
month notionally. This Court is conscious of the legal position as
pronounced by the Apex Court in the case of Chameli Devi Vs. Jivrail
Mian reported in 2019 (4) TAC 724 SC, where for death of a carpenter in
the year 2002, in absence of documentary evidence, the Apex Court has
considered the income as Rs.5,000/- per month and in this case the
claimants have claimed the income of deceased as Rs.4500/- per month in
absence of any documentary evidence for alleged accident dated
26.11.2011.
Under the aforesaid circumstances, this Court consider the income
of the deceased to be Rs.4,500/- per month as claimed by the claimants.
Accordingly, this Court is computing the compensation afresh:-
Income Rs. 4,500/- per month
Annual Income Rs. 4,500/- x 12 = Rs. 54,000/-
40% future prospect Rs. 54,000/- + Rs. 21,600/-
Pranay Sethi (Supra) para-59.4 = Rs. 75,600/-
1/4th deduction towards personal Rs. 75,600/- x 1/4 = Rs. 18,900/-
and living expenses
(Sarla Verma Supra) para-30
Total Income Rs. 75,600/- - Rs. 18,900/-
= Rs. 56,700/-
Multiplier of 15 (as the deceased Rs. 56,700/- x 15 = Rs. 8,50,500/-
was in the age group of 40-50
years) Sarla Verma (Supra)
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 amount of Rs.9,20,500/- shall be to the claimants along with
interest @ 7.5% per annum from the date of filing of the claim application
till the date of indemnifying the award in view of the judgment passed by
the Apex Court in the case of Dharampal and Sons (supra). The amount of
Rs.50,000/-, which has already paid ad-interim compensation under
Section 140 of the Motor Vehicle Act shall be deducted from this
compensation amount and further the amount already indemnified by the
Insurance Company against the award passed by the learned Tribunal
under Section 166 of the Motor Vehicles Act shall also be deducted.
The interest shall be paid @ 7.5% per annum from the date of filing
of claim application till the date of indemnifying the award by the
Insurance Company, thereafter, from 12.07.2019, the date of issuance of
notice upon the Insurance Company, till the date of indemnifying the
enhanced amount.
Accordingly, the instant appeal is allowed with aforesaid terms.
(Kailash Prasad Deo, J.)
Jay/-
