Jharkhand High Court
Reliance General Insurance ... vs Ashutosh Kumar @ Ashutosh Prasad @ ... on 19 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 261 of 2018
Reliance General Insurance Company Limited, Kolkata.... .. ... Appellant(s)
Versus
1.Ashutosh Kumar @ Ashutosh Prasad @ Nikhil Kumar
2.Miss Jyoti Kumari
3.Akash Kumar Singh .. ... ... Respondent(s)
With
M.A. No. 361 of 2018
1.Ashutosh Kumar @ Ashutosh Prasad @ Nikhil Kumar
2.Miss Jyoti Kumari ..... .. ... Appellant(s)
Versus
1.Akash Kumar Singh
2. Reliance General Insurance Company Limited, Ranchi
.. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant(s) : Mr. Amit Kumar Das, Advocate
Ms. Swati Shalini, Advocate [M.A. No. 261 of 2018]
Mr. Arvind Kr. Lall, Advocate [M.A. No. 361 of 2018]
For the Respondent(s) : Mr. Amit Kumar Das, Advocate
Ms. Swati Shalini, Advocate [M.A. No. 361 of 2018]
04/19.03.2021.
Since both the aforesaid Misc. Appeals arising out of a common
impugned award, as such, both are being heard together and disposed
of, by this common judgment.
2. Heard, learned counsel for the appellant/Insurance Company,
Mr. Amit Kumar Das assisted by learned counsel, Ms. Swati Shalini as
well as learned counsel for the respondents/claimants, Mr. Arvind
Kumar Lall.
3. Both the aforesaid Misc. Appeals arising out of common award
dated 15.02.2018 passed by learned Presiding Officer, Motor Vehicles
Accident Claims Tribunal, Ranchi in Motor Accident Claim Case
No.231 of 2009 whereby the compensation has been awarded to the
claimants, namely, 1.Ashutosh Kumar @ Ashutosh Prasad @ Nikhil
Kumar and 2.Miss Jyoti Kumari to the tune of Rs.10,38,000/- payable
within 30 days from the date of award along with interest @ 9% per
annum from the date of admission of the claim application under
Section 166 of the MV Act i.e. 06.08.2011 till its realization. Rs.5 lacs is
to be deposited in the name of minor sister in any nationalized bank in
a fixed deposit scheme for the period of five years.
4. Mr. Amit Kumar Das, learned counsel for the Appellant -
Insurance Company [in M.A. No.261 of 2018] has assailed the
impugned judgment/award on the ground that though while deciding
issue no.5 with regard to the validity of the driving licence of driver of
the offending vehicle, the learned Tribunal has held that driver,
Guddu Yadav was holding driving licence of LMV professional, which
was valid and effective to drive the offending vehicle Mini Truck, as
such, Mini Truck is not a light motor vehicle.
5. Learned counsel for the appellant- Insurance Company has
further submitted that a cyclist namely, Narendra Prasad @ Narendra
Sahu died in a road accident near Urvashi Hotel at Village- Ukrid on
NH-33, Ranchi-Ramgarh Road at about 06:15 P.M. as offending vehicle
Truck Registration No.JH-02C-8124 coming from opposite direction
driven rashly and negligently dashed against him, causing grievous
injuries and the said offending vehicle also dashed against a Maruti
Alto Car bearing registration no.JH-01Q-9741.
The FIR has been lodged vide Ormanjhi P.S. Case No.82 of 2009
dated 08.07.2009 against the driver of 407 Mini Truck bearing
registration No.JH-02C-8124 for the offence under Sections 279, 338,
304A and 427 of the IPC and after investigation police submitted
charge-sheet against the driver of the offending vehicle, Guddu Yadav
under the aforesaid Sections of the IPC vide charge-sheet no.129 of
2009, dated 31.07.2009.
6. Learned counsel for the appellant has further submitted that
Mini Truck is not a light motor vehicle and learned Tribunal has also
not considered the evidence brought on record that in the charge-sheet
it has been mentioned that deceased namely, Narendra Prasad @
Narendra Sahu was travelling in Maruti Alto Car bearing registration
No.JH-01Q-9741 along with another deceased namely, Raj Kumar
Mahto and both died. As such, considering such contradiction in the
FIR and charge-sheet and it is a case of composite negligence involving
Alto Car and Mini Truck, as such, 50% ought to have been deducted.
7. Learned counsel for the appellant/Insurance Company has
fairly submitted, that no evidence has been adduced by the Insurance
Company by examining the investigating officer so as to settle these
discrepancies with regard to the FIR and the charge-sheet.
8. From perusal of the record, it appears that no evidence has been
brought on record by the Insurance Company to declare that Mini
Truck is not a light motor vehicle having light weight of 7500 Kg. No
evidence has been brought on record by the Insurance Company to
establish that driver, Guddu Yadav was not having valid and effective
licence to drive a vehicle, which met with an accident, as such, plea of
invalid licence is not available to the Insurance Company.
9. So far contributory negligence is concerned, the Insurance
Company has completely failed to bring any evidence on record by not
examining the Investigating Officer so as to settle the discrepancies in
the FIR and the charge-sheet. The claimants are not responsible, if the
police officer commits such a mistake, as such, contributory
negligence, which has been agitated by the Insurance Company is of
no help for the Insurance Company. As such, both the grounds taken
by the Insurance Company, being devoid of merit in absence of any
evidence are hereby discarded.
10. Admittedly the vehicle bearing registration no.JH-02C-8124 is
insured before the Insurance Company i.e. Reliance General Insurance
Co. Ltd., which is not under dispute, this Court dismissed, the appeal
i.e. M.A. No.261 of 2018 preferred by the Insurance Company.
M.A. No. 361 of 2018
11. So far the appeal of the claimants are concerned, there is delay of
29 days in preferring the Misc. Appeal vide M.A. No.361 of 2018 and
for condonationof the same, I.A. No.5089 of 2018 has been preferred
before this Court.
12. Learned counsel for the claimants, Mr. A.K. Lall has assailed the
impugned award on the ground that income has been wrongly
considered by the learned Tribunal though the evidence has been
adduced with regard to monthly income of the deceased, Rs.12,000/-
to Rs.15,000/- being a painter and to that effect the Hon'ble MLA,
Khijuri constituency, Jharkhand has issued a certificate that Narendra
Prasad @ Narendra Sahu, who died in a motor vehicle accident was a
painter and working as a contractor for painting in signboards from
which he was earning amount of Rs.12,000/- to Rs.15,000/- per month.
The same has been brought on record and marked as Exhibit-9. The
another certificate dated 17.12.2017 issued by Mukhiya, Mukta Devi,
Village- Panchayat, Chutupalu, Ormanjhi has been filed, which has
been marked as Exhibit-9/1, stating therein the same facts, as such,
consideration of income of the deceased to be Rs.6,000/-per month is
on the lower side.
13. Learned counsel for the claimants has further submitted that
initially three persons were the claimants, but subsequently wife of the
deceased, who was mother of these two children died during
pendency of the appeal, as such, learned Tribunal has rightly deducted
1/3rd income as personal and individual expenses of the deceased 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.
14. Learned counsel for the claimants has further submitted that
multiplier has been rightly used as 15, in view of the judgment passed
by the Apex Court in the case of Sarla Verma (Supra) para 42 as the
deceased died at the age of 38 years, as such, deceased falls in the age
group of 36 to 40 years.
15. Learned counsel for the claimants has further submitted that
future prospect has rightly been granted in view 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, as the
deceased died at the age of 38 years, below 40 years, as such, 40% has
been granted.
16. Learned counsel for the claimants has further submitted that
under the conventional head less amount has been paid contrary to the
judgment of Apex Court in the case of Pranay Sethi (supra) at Para 59.8
[Rs. 15,000- loss of Estate, Rs.40,000/- loss of consortium and
Rs.15,000/- funeral expenses] as instead of Rs.70,000/-, only
Rs.30,000/- has been paid, as such, the same may be enhanced.
17. Learned counsel for the appellant has further submitted that
interest has been wrongly paid @ 9% per annum from the date of
admission, which ought to have been paid @7.5% per annum from the
date of filing of the claim application in view of Section 171 of the MV
Act, as such, this Court may enhance the same.
18. Learned counsel for the Insurance Company/respondent, Mr.
Amit Kumar Das has submitted, that if this Court is considering the
date of interest from the date of filing of the claim application in view
of Section 171 of the MV Act, then this Court may also consider the
interest to be @7.5% per annum from the date of filing 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, where the Apex Court has granted interest
considering the prevalent rate of bank interest on the date of accident
and the same has been quantified by the Apex Court as simple interest
@7.5 % per annum.
19. Learned counsel for the respondent/Insurance Company, Mr.
Amit Kumar Das has submitted that so far income of the deceased as
Rs.6,000/- per month, which has been considered by the learned
Tribunal, for the death caused in the year, 2009 which may not be
interfered, in view of the 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/- per month.
20. Learned counsel for the appellants/claimants, Mr. Arbind
Kumar Lal has further submitted, that if the income of the carpenter in
absence of any documentary evidence has been considered as
Rs.5,000/- per month, this Court may consider the documentary
evidence adduced by the claimants i.e. certificate granted by the
Member of Legislative Assembly as well as Mukhiya, Village -
Panchayat, as such, this Court may consider the same sympathetically.
21. Considering the rival submissions of the parties, since the appeal
has been preferred by the Insurance Company and the claimants , as
such, delay of 29 days in preferring the appeal vide M.A. No.361 of
2018 is hereby condoned.
22. I.A. No.5089 of 2018 is allowed.
23. So far rival contentions of the parties, in their rival miscellaneous
appeals, this Court has to consider the fair and just compensation 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 para 8 of 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."
As such, this Court is computing just and fair compensation.
24. Now, for enhancement the deceased (Narendra Prasad @
Narendra Sahu) died in a motor accident which is not under dispute
and deceased died at the age of 38 years, having income of Rs.12,000/-
to 15,000/- per month and to that effect claimants have brought on
record the relevant certificates, which have been marked as Exhibits 9
and 9/1 [issued by M.L.A. and Mukhiya].
25. Considering these aspects of the matter and considering the
judgment passed by the Apex Court in the case of Chameli Devi
(Supra) 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/-per month for an occurrence
of the year, 2002. In the present case there are undisputedly Exhibits,
which have been brought on record as Exhibits 9 and 9/1, but the same
have been issued by MLA and Mukhiya, who are not the person, who
can grant the income certificate and the income certificate can only be
granted by competent authority though the accident is admittedly of
the year, 2009.
26. Under the aforesaid circumstances, income of the deceased as
Rs.6,000/- per month is less amount. This Court considered it to be
Rs.7,500/- against the claim of Rs.12,000/- to Rs.15,000/- per month as
considered in different case of painter, in a benevolent legislation,
where ultimately the minor daughter has been left along with son, as
wife also died during pendency of the claim application, as such,
income of the deceased is considered to be Rs.7,500/- per month.
27. As such, the final computation of compensation is as follows:-
Income Rs.7,500 - per month
Annual Income Rs.7,500 - x 12 = Rs.90,000 /-
40% Future Prospect Rs.90,000 /- + Rs.36,000/- = Rs.1,26,000/-
Pranay Sethi (Supra) para 59.4
1/3rd Deduction towards personal and Rs.1,26,000/- minus (Rs.1,26,000/- x 1/3rd)
living expenses as the dependents are
= Rs.84,000/-
3 Sarla Verma (Supra) para 30
Multiplier of 15 (as the deceased was Rs.84,000/- x 15 = Rs.12,60,000/-
in the age group of 35-40 years)
Sarla Verma (Supra) para 42
Conventional Head Rs.70,000/-
Pranay Sethi (Supra) para 59.8
Total Compensation Amount Rs.12,60,000/- + Rs.70,000/- =
Rs.13,30,000/-
28. Accordingly, claimants are entitled for the compensation amount
of Rs.13,30,000/- with interest @7.5% per annum only from the date of
filing of the claim application till the date of indemnifying the award.
However, the amount already paid by the appellant -Reliance General
Insurance Company Ltd. shall be deducted from the aforesaid amount.
29. The 50% of the amount shall be deposited in the name of minor
daughter, Miss Jyoti Kumari as the same will be required at the time of
marriage of the girl and the rest amount shall be disbursed to the
claimants.
However, Miss Jyoti Kumari is not entitled to withdraw the said
amount without consent of his brother, Ashuotsh Kumar @ Ashutosh
Prasad even after attaining majority.
30. Accordingly, the Miscellaneous Appeal vide M.A. No.361 of 2018
is allowed.
31. The statutory amount deposited by the Insurance Company
before this Court while preferring the appeal vide M.A. No.261 of 2018
shall be remitted to the learned Tribunal by the learned Registrar
General of this Court within a period of four weeks from today and the
balance amount shall be paid by the Insurance Company within a
reasonable period, as the occurrence is of dated 07.07.2009.
(Kailash Prasad Deo, J.)
R.S/
