Sharda Devi And Others vs Raj Path Chouhan And Ors
2021 Latest Caselaw 3970 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            M. A. No. 51 of 2014

Sharda Devi and others                       ....     ....   Appellants
                              Versus
Raj Path Chouhan and Ors.                   ....    ....   Respondents
                          ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

------

For the Appellants : Mr. Pradeep Kr. Deomani, Advocate For the Respondents : Mr. Ganesh C. Jha, Advocate Mr. Nagmani Tiwari, Advocate Mr. Sudhanshu Jyoti Roy, Advocate

Oral Order 17 / Dated : 25.10.2021

This miscellaneous appeal is directed against the judgment and

award passed in Compensation Case No. 220 of 2005, whereby and

whereunder, an award of Rs. 2,56,900/- was made in favour of the

claimant- Sharda Devi against the opposite party no. 2-New India

Assurance Company Limited and an award of Rs. 1,10,000/- was made in

her favour against the opposite party no. 3, the owner of Maruti Van

bearing Registration No. JH 01G-1273 and the interest amount at the rate

of 6% per annum from the date of settlement of issue till its realization

was also made in Compensation Case No. 220 of 2005.

The instant appeal has been preferred on behalf of the claimant

of Compensation Case No. 220 of 2005 on the gound, inter alia, that the

quantum of compensation awarded is not in accordance with the

guidelines laid down by the Hon'ble Apex Court and the High Court.

There is no rational justification for awarding the interest at the rate of 6%

per annum from the date of settlement of issue which should have been

12% per annum from the date of filing of the claim petition the Insurance

Company has entered into the respondent no. 2

Brief facts of the claimant's case is that on 02.06.2004 a Maruti

Van bearing Registration No. JH 01G-1273 met with an accident with the

truck Registration No. JH 01C-0491 in which the driver of Maruti Van

Umesh Kumar, sustained fatal injuries and died while being taken to the

hospital. Claimant No. 1- Sharda Devi is the mother while Claimant Nos.

2 to 6 are the brother and sisters of the deceased. It has been averred in the

claim petition that the age of the deceased was 25 years and his income

was Rs. 3500/- per month. Griyak P.S. Case No. 57 of 2004 was registered

under Sections 279, 427, 338, 304A of the Indian Penal Code against the

driver of the truck bearing Registration No. JH 01C-0491 and Maruti Van

bearing Registration No. JH 01G-1273. The police found the case to be

true and filed the charge-sheet against the driver of the truck.

In pursuance of the notice issued in Compensation Case No.

220 of 2005, New India Assurance Company Limited and opposite party

no. 1-Raj Path Chouhan have appeared and filed their written statements.

It has been pleaded on behalf of opposite no. 1 that the truck

was under the insurance cover of New India Assurance Company Limited

vide Insurance Policy No. 540604/31/03/00840 valid from 5th June, 2003

to 4th June, 2004. New India Assurance Company Limited while

contesting the claim admitted that the vehicle in question was under its

insurance cover at the relevant point of time of accident. On the basis of

the pleading of the parties, following issues were framed:

1. Are the cases as framed maintainable?

2. Have the applicants of these compensation cases got valid cause of

action for instituting these compensation cases?

3. Has the death of the deceased Umesh Kumar and Raj Bansi Singh

resulted due to motor vehicle accident arising out of the offending

vehicles i.e. Truck No. JH 01C-0491 and Maruti Van No. JH 01G-

1273?

4. Was the accident occurred due to rash and negligent driving of the

drivers of Truck No. JH 01C-0491 and Maruti Van No. JH 01G-1273?

5. Whether it was a case of composite negligence of the drivers of both

the offending vehicles?

6. Did the insured of both the offending vehicles violate the terms and

conditions of the insurance policy?

7. Are the applicants entitled to get the amount of compensation as

prayed for? If so, to what extent and by whom?

8. Are the applicants entitled to get any other relief or reliefs?

The tribunal on the basis of the evidence on record decided

Issue Nos. 3, 4 and 5 regarding the manner of accident and returned the

finding that both the drivers of the offending vehicles were driving the

vehicles in rash and negligent manner. However, since the truck was a

heavier vehicle and Maruti Van is lighter one so the ratio of contributory

negligence between both the vehicles was apportioned in the ratio of

70:30. Regarding the plea of the insurance Company of the violation of

term of the policy by the Maruti Van it was held that there was no

violation of the terms and conditions of the policy with regard to the

offending Maruti Van No. JH 01G-1273.

From the grounds taken in the memo of appeal and the

arguments advanced on behalf of both the sides at Bar, there is no dispute

with regard to the death of the deceased in the motor vehicle accident,

involving the offending vehicles at the relevant time of accident. The

manner of accident has also not been assailed and the finding recorded by

the learned court below regarding contributory negligence on the part of

the drivers of both the vehicles has also not been challenged. However,

the apportionment of the compensation at the ratio 70:30 on the mere

ground that the truck was heavier vehicle, therefore, there was a larger

share of negligence on its part has been contested on behalf of the insurer

of the truck.

The main point for determination in the instant appeal is as

follows:

i. Whether the award of interest at the rate of 6% from the date of

settlement of issue was justified?

ii. Although the deceased was the bachelor at the age of 25 years

but he was survived by his mother and five brothers and sisters.

In the circumstance, whether the deduction of 50% of the

income of the deceased on his personal expenses was justified?

iii. Whether the loss of future prospective earning has been

computed in the light of the judgment passed by the Hon'ble

Apex Court in the case of National Insurance Company

Limited Versus Pranay Sethi and others {(2017) 16 SCC 680}

With regard to the rate of interest, under Section 34 of the

C.P.C. provides that in the case of decree for payment of money the rate of

interest as the Court deems reasonable to be paid on the principal sum

adjudged, from the date of the suit to the date of the decree, with further

interest at such rate not exceeding 6% per annum as the Court deems

reasonable

Provided that where the liability in relation to the sum so

adjudged had arisen out of a commercial transaction, the rate of such

further interest may exceed 6% per annum but shall not exceed the

contractual rate of interest or where there is no contractual rate, the rate at

which moneys are lent or advanced by nationalized bank in relation to

commercial transactions.

The Hon'ble Apex Court in the case of Dharampal and others

Versus U.P. State Road Transport Corporation {(2008) 12 SCC 208}

has held that the rate at which the interest is to be awarded would

normally depend upon the bank rate prevailing at the relevant time. Their

Lordships in this case awarded interest at the rate of 7.5% per annum.

Under the circumstances, the interest at the rate of 7.5% is awarded on the

principal amount from the date of filing of the claim petition till the date

of recovery.

The age of the deceased at the time of accident was 25 years

and the monthly income was Rs.3500/-. As per the ratio decided by the

Hon'ble Apex Court in the case of Pranay Sethi (supra), the future

prospect of the deceased who was self employed the addition of 40% of

the established income should be the warrant where the deceased was

below the age of 40 years. This brings the annual income of the deceased

to Rs. 3500 x 12 = 42,000 x 40% = 16,800 + 42,000 = 58,800/-.

Deduction of personal and living expenses -:

The Hon'ble Apex Court in the case of Sarla Verma (Smt) and

others Versus Delhi Transport Corporation and another {(2009) 6

SCC 121} has held in paragraph-26 that if the deceased was bachelor,

50% of the income to such deduction is not an inflexible rule. In

paragraph-32 it has been held that in regard to the bachelor normally 50%

is deducted for the family of the bachelor is there and the dependant of the

income is deceased where he has a widowed mother and large number of

younger sisters and brothers, his personal and living expenses may be

restricted to 1/3rd and contribution to the family will be taken as 2/3rd.

Here in the present case, the Claimant No. 1- Mother of the

deceased is a widow with five children and, therefore, instead of taking

50% it is a fit case for taking 1/3rd as the personal and living expenses to

determine the multiplicand. Taking 1/3rdas the personal and living

multiplicand will work out to Rs.58,800 x 2/3rd = 39,200/-. The multiplier

18 will apply as per the ratio of the Sarla Verma case (supra) and the

compensation amount full work out Rs. 39,200 x 18 = 7,05,600/-

Apart from this amount, the claimant shall also be entitled to

Rs. 15,000/- for loss of estate and Rs. 15,000/- for loss of funeral

expenses. Total compensation amount shall work out to Rs. 7,05,600 +

Rs.30,0000 + Rs.7,35,600/-. It has been held in New India Assurance Co.

Ltd. v. Somwati, (2020) 9 SCC 644 that the consortium is not limited to

spousal consortium and it also includes parental consortium as well as

filial consortium. Under the circumstance the claimant shall also be

entitled to Rs 40,000/- for loss of consortium. The final compensation

therefore shall work out to Rs 7,75,600/-

Apportionment of the compensation amount for payment on

opposite party nos. 2 and 4 in the ratio of 70:30 is bereft of any sound

logic. Opposite party no. 2 which is the insurer of the truck is saddled with

liability to pay higher contributory compensation amount since it was a

larger vehicle and the insurer of Maruti Van has been saddled with a

lighter amount since it was a small vehicle. This reasoning is not justified

in the absence of any finding to the effect that the truck was principally

liable for the accident and therefore 70% of the compensation amount by

its insurer.

Therefore, both the insurers are held liable to make payment of

compensation to the claimant at the ratio of 50:50.

Under the aforesaid facts and circumstances, opposite party no.

2-New India Assurance Company Limited and opposite party no. 4-Bajaj

Allianz General Insurance Company each shall be liable to pay

Rs.3,87,800/- to the claimants. Both the insurance Companies shall also

pay interest at the rate of 7.5% per annum on the principal amount from

the date of filing of the petition till the date of making payment in favour

of the claimant. It goes without saying that ad-interim compensation

already paid to claimants shall be deducted . The payment to be made by

the Insurance Company to the Tribunal for its disbursement to the

claimants within sixty days of this order.

Out of the total award amount including the interest, 50% to be

disbursed by the tribunal to Appellant No.1 Sharda Devi, the widow of the

deceased and remaining 50% of the balance amount to be disbursed to the

other claimants in equal share. In the event of minor the amount is to be

kept in joint fixed deposit of Appellant no.1 with her minor child till

he/she attains majority.

With the modification in award, this Misc. Appeal is allowed.

(Gautam Kumar Choudhary, J.) AKT