Jharkhand High Court
Gita Devi vs Amresh Tiwary on 23 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.479 of 2015
1. Gita Devi
2. Ajay Kumar
3. Sachin Kumar
4. Pemia Devi
5. Pusan Mahto ... Appellants
-versus-
1. Amresh Tiwary
2. The Divisional Manager, National Insurance Co. Ltd., B.P. Agarwala
Building, Dhansar, Dhanbad. ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Appellant : Mr. Shekhar Prasad Sinha, Advocate
For the Respondents: Mr. D.C. Ghose, Advocate
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13/ 23.03.2021 Heard learned counsel for the parties through video conferencing.
The lawyers have no objection with regard to the proceeding which has been
held through video conferencing today at 11.00 a.m.. They have no complain
with respect to the audio and video clarity and quality.
2. In this appeal, the claimant has prayed for enhancement of the
compensation amount granted by the District Judge VII-cum-M.A.C.T. Judge,
Dhanbad in Title (M.V.) Suit No.269 of 2011.
3. The Motor Vehicle Accident Tribunal has awarded a sum of
Rs.7,48,800/- as just compensation, but, thereafter deducted 25% on account
of contributory negligence. Challenging the aforesaid quantum, claimant has
preferred this appeal.
4. There are two vehicles, which are involved in this case. A tanker
bearing registration No. MP 19HA 0463 dashed a motorcycle which was being
driven by the deceased along with a pillion rider, resulting in death of both the
persons, i.e., the driver of the motorcycle and the pillion rider. The deceased
was a mason, as claimed by the claimants and was earning Rs.250/- per day.
The Tribunal has assessed the income to be Rs.4,000/- per month and
thereafter applied the multiplier of 16 as the age of the deceased was 32. The
Tribunal, thereafter, deducted 1/4th on account of personal expenses and on
account of future prospect granted 30% increase in the amount. Thereafter
Rs.2,000/- was granted as funeral expenses. After calculating the amount, the
Tribunal held that there was contributory negligence on the part of the
deceased and thus, deducted 25% of the amount.
5. Counsel appearing for the appellant, submits that deduction of
25% on account of contributory negligence is absolutely against the evidence,
which has been led before the Tribunal. He submits that only on the basis of
surmises and conjunctures, the Tribunal has held that the deceased was also
liable for the accident. He further submits that the amount of compensation
has not been assessed in terms of the judgment delivered by the Hon'ble
Supreme Court in the case of National Insurance Company Limited versus
Pranay Sethi & Others reported in (2017) 16 SCC 680. He submits that the
deceased being a mason, at least Rs.5,000/- per month should have been
considered as income of the deceased, who was maintaining a large family.
6. Counsel for the Insurance Company submits that the deduction on
account of contributory negligence is correct as the deceased, who was driving
the motorcycle, could have seen the heavy motor vehicle coming from the
other side and could have easily avoided the accident. He further submits that
the income of the deceased, which has been considered as Rs.4,000/- per
month is just and proper as the accident has taken place way back in the year
2011.
8. After hearing the parties, I have gone through the award. The
factum that the accident had taken place and the finding that the vehicle, i.e.,
the tanker bearing registration No. MP 19HA 0463 was duly insured, is not in
dispute. So far as the income of the deceased is concerned, I find that there is
nothing to dispute the fact that the deceased was working as mason. A mason
is a skilled labour, as such, I feel that Rs.5,000/- per month would be the
correct amount to be considered as the income of the deceased. So far as the
future prospect is concerned, since the deceased was below 40 years, in
terms of the judgment passed by the Hon'ble Supreme Court in the case of
Pranay Sethi (supra), 40% rise had to be considered by the Tribunal. Again,
on account of non-pecuniary damages, Rs.70,000/- should have been granted
to the deceased. So far as the deduction for personal expenses and
application of multiplier is concerned, the Tribunal has rightly applied the
same.
9. Considering what has been held above, if I recalculate the
compensation, the same will come to Rs.10,78,000/-. So far as the point of
contributory negligence is concerned, there is nothing on record to suggest
that there was any contributory negligence on the part of the deceased. The
Tribunal had framed 8 issues in this case, but, there was no issue to the effect
as to whether the deceased was also negligent in driving the motorcycle and
whether there any contributory negligence on his part or not. The point of
contributory negligence has been dealt with by the Tribunal at page 8
(paragraph 16) of the impugned award. Only in the last part, the Tribunal has
presumed that since the road was wide and both the drivers of the offending
vehicle could see each other properly, thus, it can be said that there was
contributory negligence of the driver of the motorcycle also. I find that this
finding is not supported by any evidence.
10. In view of the aforesaid fact, the finding of the Tribunal holding
that there was contributory negligence on the part of the deceased also is not
proper. I find that there was nothing on record to suggest that there was
contributory negligence on the part of the deceased, who was driving the
motorcycle. Thus, the entire negligence can be attributed to the driver of the
tanker, because of whom, the accident had taken place.
Considering the aforesaid, I am inclined to set aside the part of
the award dated 29.05.2015 passed in Title (M.V.) Suit No.269 of 2011, by
which the Tribunal has fixed contributory negligence upon the deceased.
11. In view of what has been held above, the entire compensation
amount of Rs.10,78,000/- has to be paid by the Insurance Company, namely,
National Insurance Company Limited. Since the Tribunal has already granted
compensation to the tune of Rs.5,64,000/-, the balance amount of
Rs.5,14,000/- should be paid to the claimant within a period of 8 weeks from
today. If the said amount of Rs.5,14,000/- is not paid by the Insurance
Company, within the aforesaid period of 8 weeks, the said amount of
Rs.5,14,000/- will carry interest at the rate of 6% per annum from today till the
date of payment.
12. This appeal stands allowed with the aforesaid modification in the
award dated 29.05.2015 passed in Title (M.V.) Suit No.269 of 2011.
(Ananda Sen, J.)
Kumar/Cp-02
