Jharkhand High Court
Pinki Devi vs Mahtab Hussain on 1 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 455 of 2015
......
1. Pinki Devi
2. Shimran Bharti ...... Appellants
Versus
1. Mahtab Hussain
2. Md. Mahmood Alam
3. Reliance General Insurance Co. Ltd., Bokaro
4. Usha Devi
5. Hari Pd. Sah .......Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
For the Appellants : Mr. Manoj Kr. Sah, Advocate
For the Resp. No.3 : Mr. Amit Kr. Das, Advocate
Ms. Swati Shalini, Advocate
13/Dated: 01/03/2021.
Heard, learned counsel for the appellants, Mr. Manoj Kumar Sah
and learned counsel for the respondent no.3, Mr. Amit Kr. Das assisted by
learned counsel, Ms. Swati Shalini.
Learned counsel for the appellants has submitted that
appellants/claimants namely, 1.Pinki Devi and 2. Shimran Bharti have
preferred instant Miscellaneous Appeal for enhancement of the award
dated 17.12.2014, passed by learned District Judge-1-cum-M.A.C.T.,
Godda in M.A.C.T. Case No.11 of 2012, whereby the claimants, Pinki
Devi, widow of the deceased and Simran Bharti (minor daughter through
her mother) have been awarded compensation to the tune of Rs.4,89,900/-
along with interest @ 6% per annum from the date of filing of the claim
application till realization of the same and if the amount is not paid
within 60 days, then the interest shall be paid @ 8% per annum.
Learned counsel for the appellants has submitted that the deceased
(Amit Kumar) lost his life at the age of 22 years, in a motor accident on
14.02.2012, while deceased was travelling on tempo (auto rickshaw)
bearing registration no.JH-15F-0315, which was insured before the
Reliance General Insurance Company Limited vide Policy
No.110001129317, for the period from 01.03.2011 to 29.02.2012.
Learned counsel for the appellants has further submitted that
deceased was a private tutor and also running a kirana shop from his
house and claimants have claimed the income of the deceased to be
Rs.4,000/- per month, which has been considered by the learned Tribunal
on the lower side as Rs.3,000/- contrary to the judgment passed by the
Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019
(4) TAC 724 SC, whereby 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/-, as such, in view of the claim
made by the claimants to Rs.4,000/-, the learned Tribunal should have
considered the same to the tune of Rs.4,000/- per month and that is the
reason the claimants is not praying for Rs.5,000/-, even though there is
judgment in favour of the claimants.
Learned counsel for the appellants has further submitted, that
learned Tribunal has granted future prospect to the tune of 30%, instead
of 40%, in view of the judgment passed the Apex Court in the case of
National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16
SCC 680 at para 59.4 and recent judgment passed by the Apex Court in the
case of Kirti & Anr. Etc. vs. Oriental Insurance Company Ltd., passed in
Civil Appeal Nos.19-20 of 2021, decided on 05.01.2021.
Learned counsel for the appellants has further submitted that under
the conventional head, learned Tribunal has granted Rs.9,500/-, 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. 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/-.
Learned counsel for the appellants has further submitted that
interest ought to have been granted @ 7.5% from the date of filing of the
claim application, till its realization, in view of Section 171 of the MV Act,
coupled with 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.
Learned counsel for the appellants has thus submitted that
compensation amount may be enhanced as it is a benevolent legislation.
Learned counsel for the respondent/Insurance Company, Mr. Amit
Kumar Das assisted by learned counsel, Ms. Swati Shalini has submitted,
that learned Tribunal has considered income of the deceased as Rs.3,000/-
per month, though the claimants have claimed Rs.4,000/- per month, as
such, this Court may not interfere with the same.
So far future prospect is concerned, kirana shop business is still
running by the family members of the deceased, as such, the income may
not be enhanced, as after of the death of the deceased, the dependents are
not claiming, that because of the death of the deceased their income has
reduced from kirana shop or tuition.
So far future prospect is concerned, the learned Tribunal has
already granted 30%, which may not be changed as the matter is old and
interest has been granted @ 6% for 60 days from the date of filing and
thereafter @8%, as such, nothing will change substantial, if the interest is
made applicable as 7.5% per annum, from the date of filing of the claim
application, till the date of indemnifying the award.
Learned counsel for the respondent/Insurance Company has
further submitted that no appeal has been preferred by the Insurance
Company against the same impugned award.
Considering the rival submissions of the parties and looking into the
facts and circumstances of the case, it appears that deceased (Amit Kumar)
was a private tutor and also running a kirana shop from his house and the
claimants being widow and the minor daughter have claimed the income
of the deceased to be Rs.4,000/- per month. Even if assuming that kirana
shop is still running then also the widow and daughter must be suffering
in bringing the articles from the wholeseller and there is no dispute that
in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724
SC, the Apex Court has considered the income of the carpenter to be
Rs.5,000/-, who lost his life in the year, 2002, as such, in my views, this Court
considering the materials available on record, consider complete loss of
income from the tuition, which is rising profession and there is no contrary
evidence on behalf of the Insurance Company, that kirana shop is not
running with difficulties by a widow and minor children, as such, ratio laid
by the Apex Court in the case of Rani Gupta & Ors. vs. United India
Insurance Company Limited and Others, reported in 2009 (13) SCC 498 is
not applicable in the present fact and circumstances of the case.
Accordingly, this Court considers the income of the deceased to be
Rs.4,000/- per month.
As such, the final computation of compensation is as follows:-
Income Rs.4,000/- per month
Annual Income Rs.4,000/- x 12 = Rs.48,000 /-
40% Future Prospect Rs.48,000 /- + Rs.19,200/- = Rs.67,200/-
Pranay Sethi (Supra)
para 59.4
1/3rd Deduction towards Rs.67,200/- minus (Rs.67,200 x 1/3 =
personal and living
Rs.22,400/-) = Rs.44,800/-
expenses
Sarla Verma (Supra)
para 30
Multiplier of 18 (as the Rs.44,800/- x 18 = Rs.8,06,400/-.
deceased was 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 Rs.8,06,400/-. + Rs.70,000/- = Rs.8,76,400/-
Amount
The amount of Rs.8,76,400/- shall be paid by the Insurance
Company 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 Dharmpal (Supra) and
section 171 of the MV Act. The amount already indemnified by the Insurance
Company shall be deducted from the aforesaid amount and the balance
amount shall be paid by the Insurance Company within a reasonable period.
Accordingly, the instant Miscellaneous Appeal is allowed.
(Kailash Prasad Deo, J.)
R.S.
