Cholamandalam M/S General ... vs Byasmuni Devi & Others
2021 Latest Caselaw 1345 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
          (Civil Miscellaneous Appellate Jurisdiction)
                 M.A. No. 523 of 2019
                          ........

Cholamandalam M/S General Insurance Co. Ltd.

.... ..... Appellant Versus Byasmuni Devi & Others .... ..... Respondents

WITH M.A. No. 522 of 2019 ........

Byasmuni Devi & Others                  .... ..... Appellants
                         Versus

Cholamandalam M/S General Insurance Co. Ltd. & Others.

.... ..... Respondents

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

For the Appellant : Mr. Ashutosh Anand, Advocate (in M.A. No.523/2019).

For the Appellants : Mr. Saibal Kumar Laik, Advocate (in M.A. No.522/2019).

For the Respondents             :
                              ........
04/17.03.2021.

Both the appeals are taken together filed against the same impugned judgment.

M.A. No.522/2019 has been preferred for enhancement of the award by the claimants namely (1) Byasmuni Devi (2) Ashish Kumar Marandi (3) Radhika Kumari (4) Abhinash Kumar and (5) Jaymoni Devi for enhancement of the award dated 31.07.2019 passed by learned District Judge-II-cum-Presiding Officer, Motor Accident Claim Tribunal(M.A.C.T.), Bermo at Tenughat in Motor Accident Claim Case No.19/2019, whereby the claimants have been awarded compensation to the tune of Rs.19,42,000/- alongwith simple interest @ 7% per annum from the date of filing of the claim application i.e. 05.02.2019 till the indemnifying the award.

Learned counsel for the appellant-claimants, Mr. S. K. Liak (in M.A. No.522/2019) has assailed the impugned award for enhancement on the ground that learned Tribunal has considered the income of the deceased, on the lower side. Deceased, Bhuneshwar Marandi was a painter and as per the salary slip (Exhibit-1) issued by C.W.-3, Ganesh Rai, who is proprietor of M/S Rai Painting & Paint Decorators, Jaina

More, Bokaro, the deceased was earning a salary of Rs.700/- per day. No contrary evidence has been brought on record by the Insurance Company. The income has been corroborated by C.W.-2 Byasmuni Devi, wife of the deceased, but without any plausible reason or explanation, the learned Tribunal has considered the income of the deceased to be Rs.500/- per day. Since he was not in a regular private job, as such, the same has been multiplied with 26 working days excluding 4 Sundays in a month which comes to Rs.13000/- per month, which is on the lower side.

Learned counsel for the appellants-claimants has submitted that this Court may consider the evidence brought on record by claimants as adduced as Exhibit-1 supported by evidence of proprietor of M/S Rai Painting & Paint Decorators, Jaina More, Bokaro, who has been examined in this claim case as C.W.-3.

Learned counsel for the appellants -claimants has further submitted, that interest ought to have been paid at the prevalent Bank rate of interest, which has been quantified 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), as simple interest @ 7.5% per annum, but learned Tribunal has only granted simple interest @ 7% per annum, which may also be enhanced.

Learned counsel for the appellants-claimants has further submitted, that the deceased, Bhuneshwar Marandi died at age of 34 years and as such, 40% future prospect may be awarded to the claimants, 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 and Kirti & Anr. etc. Vs. Oriental Insurance Company Ltd. decided the issue in Civil Appeal Nos.19-20 of 2021 on 05.01.2021.

Learned counsel for the appellants-claimants has thus submitted that compensation amount may be enhanced.

Learned counsel for the Insurance Company, Mr. Ashutosh Anand has submitted that same impugned order has been assailed by the Insurance Company in M.A. No.523/2019, on the ground that income of the deceased has been considered on higher side, where the deceased was a painter.

Learned counsel for the Insurance Company has submitted that Hon'ble Apex Court in the case of Chameli Devi Vs. Jivrail Mian reported in 2019 (4) TAC 724 SC, has held in absence of any documentary evidence, the income of a carpenter, who lost his life in the year 2002 as Rs.5,000/- per month, as such, in the present appeal, this Court may also consider the income of the deceased to be Rs.5,000/- per month instead of Rs.13,000/- per month as considered by the learned Tribunal.

Learned counsel for the Insurance Company has submitted, that there is an head-on collision between the two vehicles. The deceased was travelling on his motorcycle bearing registration No.JH-09P-6371, which dashed with Truck bearing registration No.JH-02AW-7425, as such, learned Tribunal ought to have deducted the amount owing to contributory negligence of both the offending vehicles.

Learned counsel for the Insurance Company has fairly submitted, that the vehicle was insured before the Insurance Company vide Policy No.3379/02118332/000/00 for the period from 01.09.2018 to 31.08.2019 and the unfortunate accident took place on 15.01.2019, as such, vehicle was duly insured before the Insurance Company.

After hearing learned counsel for the parties and looking into the materials brought on record, since appeal has been preferred by the Insurance Company on quantum of compensation, who has to indemnify the award and the appeal has also been preferred by the claimants for enhancement of the award, as such, this Court will compute the just and fair compensation afresh 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 of which 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, Bhuneshwar Marandi was going to his Sasural at Sonhar, Kasmar on his motorcycle bearing registration No.JH- 09P-6371 on 15.01.2019 at about 2 O' clock in the day, when the deceased reached at Village - Baradih on NH-23 a Truck bearing registration No.JH-02AW-7425 was coming from opposite side and was being driven by its driver in a rash and negligent manner at a fast speed, dashed the motorcycle of the deceased due to which Bheneshwar Marandi sustained grievous injuries and died on the spot.

Police registered Jaridih P.S. Case No.08/2019 dated 16.01.2019 under Sections 279/304A and 427 IPC against unknown driver of the offending vehicle. Subsequently Charge Sheet was submitted vide Charge Sheet No.38/2019 dated 22.03.2019 against O.P. No.2 Mohd. Shamim @ Salim, who was driver of the offending truck. The offending vehicle was duly insured before the Cholamandalam M/S General Insurance Co. Ltd. as stated above and this is admitted position with the Insurance Company.

The claimants have examined three witnesses namely Prakash Tudu as C.W.-1, Byasmuni Devi as C.W.-2 and Ganesh Rai as C.W.-3.

Apart from the oral evidence, the claimants have adduced following documentary evidence:-

Ext.1- Original Wage (Mazdoori) certificate of the deceased dated 24.01.2019 issued by C.W.3 Ext.-2 Certified copy of F.I.R. dated 16.01.2019. Ext.-3 Certified copy of Charge-sheet No.38/2019 dated 22.03.2019. Ext.4 and 4(A)- Certified copies of orders dated 18.01.2019 to 22.01.2019 and 31.01.2019 to 27.03.2019 passed in G.R. Case No.50/2019, arising out of Jaridih P.S. Case No.08/2019 by Mr. S. N. Kujur, learned JMFC, Bermo at Tenughat.

Ext.-5 Certified copy of Indemnity Bond furnished on 04.02.2019 by O.P. No.2-owner for release of offending truck in G.R. Case No.50/2019.

Ext.6- Photocopy of postmortem examination report of the deceased. Mark X- Photocopy of Insurance Policy certificate of the offending vehicle.

Mark X/1- Photocopy of certificate of registration of offending vehicle. Mark X/2- Photocopy of Driving license of O.P. No.3/ driver. Mark X/3- Photocopy of permit of the offending vehicle. Mark X/4- Photocopy of death certificate of the deceased dated 19.01.2019.

O.P. No.2 i.e. Harun Rashid owner of the offending vehicle Truck No. JH02AW-7425 has adduced only documentary evidence, which are as follows:-

Ext.A- Original Insurance Policy Certificate of offending vehicle and Mark Y- Attested copy of driving license of O.P. No.3/driver.

The learned Tribunal has framed altogether seven issues, which are hereunder:-

I. Whether the claim case is maintainable in its present form? II. Whether there is any valid cause of action for the claim case?

III. Whether the deceased Bhuneshwar Marandi died on 15.01.2019 in a motor vehicle accident due to rash and negligent deriving on the part of the driver of truck bearing registration No. JH-02AW-7425?

IV. Whether the said offending truck bearing registration No. JH-02AW- 7425 was insured at the time of accident with O.P. No.1 Cholamandalam MS General Insurance Co. Ltd.?

V. Whether the driver of the said offending truck had got a valid and effective driving license at the time of accident?

VI. Whether claimants are entitled to get the compensation and if so, to what extent and from whom?

VII. Whether the claimants are entitled to get any other relief or reliefs? After hearing the parties and on perusal of the impugned order, it appears that learned Tribunal has considered the income of the deceased to be Rs.500/- per day for 26 working days excluding 4 Sundays in a month which comes to Rs.13,000/- per month, but this case will not covered by the ratio laid down by the Apex Court in the case of Chameli Devi (Supra) as there was no documentary evidence brought on record, but in the present case, C.W.-2 Byasmuni Devi, widow of the deceased

has claimed the income of her husband, Bhuneshwar Marandi to be Rs.18,000/- to Rs.20,000/- per month, who lost his life at the age of 34 years. The employer of the deceased namely Ganesh Rai has been examined as C.W.-3 and has also proved Exhibit-1 i.e. original wage (Mazdoori) certificate issued by him as proprietor of M/S Rai Painting & Paint Decorators, Jaina More, Bokaro, showing Rs.700/- per day, income of the deceased prior to his death.

Under the aforesaid circumstances, this Court has no option than to accept the income of the deceased, which has been proved by the claimants by adducing documentary evidence as Exhibit-1 and proving the same by the proprietor of the firm C.W.-3 Ganesh Rai, accordingly, this Court consider the income of the deceased to be Rs.700/- per day x 26 days excluding 4 Sundays in a month then total comes to Rs.18,200/- per month.

Accordingly, this Court is computing the compensation afresh:-

      Income                             Rs. 18,200/- per month
      Annual Income                      Rs. 18,200/- x 12 = Rs. 2,18,400/-
      40% future prospect                Rs. 2,18,400/- + Rs. 87,360/-
      Pranay Sethi (Supra) para-59.4     = Rs. 3,05,760/-

1/4th deduction towards personal Rs. 3,05,760/- x 1/4 = Rs. 76,440/-

      and living expenses
      (Sarla Verma Supra) para-30
      Total Income                       Rs. 3,05,760/- - Rs. 76,440/-
                                         = Rs. 2,29,320/-

Multiplier of 16 (as the deceased Rs. 2,29,320/- x 16 = Rs. 36,69,120/-

      was in the age group of 31-35
      years) Sarla Verma (Supra)
      Conventional Head                  Rs. 70,000/-
      Pranay Sethi (Supra) para-59.8
      Total Compensation Amount          Rs. 36,69,120/- + Rs. 70,000/-
                                         = Rs. 37,39,120/-

The total amount of Rs. 37,39,120/- shall be paid along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 05.02.2019 till the actual date of indemnifying the award.

The amount shall be disbursed in a reasonable period as it has been submitted by learned counsel for the appellants that ad-interim

compensation of Rs.50,000/- has also not been paid under Section 140 of the Motor Vehicles Act.

Accordingly, the appeal preferred by the claimants is allowed and the appeal preferred by the Insurance Company is dismissed, as no evidence has been adduced by the Insurance Company to substantiate the contributory negligence nor the surveyor report has been brought on record by the Insurance Company.

The statutory amount deposited by the Insurance Company shall be remitted to learned Tribunal/ Executing Court by learned Registrar General of this Court within a period of four weeks from today, so as to indemnify the same to the claimants.

However, the balance amount of the compensation as enhanced by this Court shall be paid by the Insurance Company within a reasonable time as the occurrence is of dated 15.01.2019.

Learned counsel for the Insurance Company has submitted that 60 days time may be granted to process the award by staying the proceeding of Executing Court in Execution Case No.41/2019.

On such prayer, this Court gives 60 days time to the appellant / Insurance Company to indemnify the award from today by directing the learned Tribunal / Executing Court not to proceed in execution case or take any coercive steps for 60 days from today, failing which the Executing Court is at liberty to proceed in accordance with law.

Accordingly, I.A. No.5406/2020 is disposed of.

(Kailash Prasad Deo, J.) Jay/-