Priyanka Kumari vs Dev Narayan Saha
2021 Latest Caselaw 3975 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          M.A. No. 351 of 2020
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1. Priyanka kumari

2. Kalyani Devi

3. Vivek Kumar

4. Vidiya Kumari ...Appellant(s).

Versus

1. Dev Narayan Saha

2. Naresh Prasad Mahto

3. Divisional Manager, The Oriental Insurance Company Ltd. Bokaro Steel City ... Respondent(s) CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

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          For the Appellant(s)            : Mr. Rishikesh Giri, Advocate.
          For the Respondent              : Mr. G.C. Jha, Advocate

05/25.10.2021: Heard Mr. Rishikesh Giri learned counsel for the appellant and Mr. G.C. Jha,

counsel appearing on behalf of the Insurance Company.

2. This appeal has been filed under Section 173 of the Motor Vehicle Act can

be disposed of at this stage itself without calling for the lower court record in view

of the nature of argument which has been advanced by the appellants and the

respondents. By filing this appeal the claimants have prayed to enhance the

compensation amount, granted under Section 166 of the Motor Vehicle Act. The

claimants are the wife, mother and 2 minor children of the deceased.

3. The deceased, on 22.12.2018 was returning to his home by a motorcycle

and when he reached Jodhadih More, Bokaro, he received a phone call. He

stopped the motorcycle and in the meantime a trailor bearing registration no. PB

13X 8755(offending vehicle) came and dashed the deceased, resulting in grievous

injuries. When he was brought to the hospital he was declared dead. Chas P.S.

Case No. 287 of 2018 was registered against the driver of the offending vehicle

i.e. the trailor. After conclusion of the investigation charge sheet was submitted

under Section 279/304(A) against the driver of the offending vehicle.

4. The claimants filed an application claiming compensation on account of death of the deceased which arose out of a motor vehicle accident. It is the case

of the claimants that the deceased was a mason and was earning Rs. 13,000/- per

month. They also submit that the offending vehicle was duly insured with the

Oriental Insurance Company Ltd., and the said insurance was valid during the time

of the accident. They claimed that the offending vehicle was being driven in a rash

and negligent manner, thus accident occurred, resulting in the death of deceased.

The claimants claimed that they are entitled to receive compensation under the

Motor Vehicle Act.

5. The owner of the vehicle appeared and filed a written statement / show

cause claiming that the vehicle was duly insured by the Oriental Insurance

Company Ltd. and the vehicle had all valid documents including national permit

for goods carriage and the driver also had valid driving license. It is the case of the

owner that since there was no violation of the terms and condition of the policy, it

is the Insurance Company who had to indemnify the owner and pay the amount

so assessed by way of compensation.

6. The Oriental Insurance Company also filed their show cause wherein they

had raised a plea that the vehicle which dashed the deceased was being driven

by a person who did not have any valid driving license to drive the same. They

admitted that the vehicle was duly insured by them. A general plea was taken by

them to the effect that the vehicle did not have proper documents to ply on road

nor the driver had proper driving license.

7. After completion of the pleadings the Court framed several issues. The issue

no.3 was in relation to whether the driver of the offending vehicle had a valid driving

license or not and issue no. 5 was to the effect that who is the authority liable to

pay compensation.

8. Two witnesses were adduced on behalf of the claimants. C.W. No. 1 is

Madan Monan who happens to be the employer of the deceased and C.W. No. 2

is one of the claimants who happens to be the wife of the deceased. The

employment certificate, copy of the FIR and copy of charge sheet was marked as

Exhibit 1,2, and 3 respectively. Some documents were taken into evidence and marked for the purpose of identification. Those are the photo copy of registration

certificate of the vehicle, the Insurance paper of the offending vehicle, the Adhar

Card of the deceased, photocopy of the registration certificate, pollution certificate

and permit of the offending vehicle. Photocopy of the post mortem report of the

deceased was also marked for identification. The Insurance Company has also

brought some document and exhibited the same. Exhibit A is the original driving

license verification report by the investigator. Exhibit B is the original driving license

verification report obtained online by the investigator of OP. Exhibit C is the original

challan for obtaining the driving license particulars.

9. The Tribunal after considering the oral and documentary evidence on

record, held that at the time of accident, the driver of the offending vehicle had a

valid driving license to drive the same. The Tribunal also held that the offending

vehicle was duly insured with the Oriental Insurance Company Ltd. It was also

concluded that the offending vehicle i.e. trailor which was insured with the Oriental

Insurance Company Ltd. was being driven in a rash and negligent manner. The

Tribunal after considering the same did not find any violation of the condition of

policy and thus directed the Insurance company to pay an amount of Rs.

10,24,720/- by way of compensation to the claimants.

10. The claimants are aggrieved by the quantum of compensation and has thus

preferred this appeal. There is no appeal by the Insurance Company against the

award.

11. Learned counsel appearing on behalf of the claimants submits that the

documents suggest that the deceased was getting Rs. 13,000/- per month as

salary for working 26 days in a month. He submits that the Tribunal did not accept

the said documents and has rather considered the income of the deceased to be

Rs. 8,000/- per month, but while computing the compensation had erroneously

taken the income of the deceased to be Rs. 6240 per month. He submits that

aforesaid error has cropped up at the time of calculating the compensation. He

submits that when the Tribunal had assessed and finalized the income of the

deceased as Rs.8,000/- per month then the computation should have been on the basis of Rs. 8,000/- per month and not on Rs. 6240/-. He further submits that

during assessment of compensation future prospect of the deceased has also not

been considered. He submits that in view of the Judgment passed by the Hon'ble

Supreme Court in the Case of National Insurance Company Ltd. Versus

Pranay Sethi and others reported in (2017) 16 SCC 680, future prospect of the

deceased should have been considered and in this case since the deceased was

aged about 27 years, 40% enhancement should have been granted. These are

the only two grounds advanced by the counsel for the appellants while challenging

the quantum and no other ground has been taken by them. During the course of

argument he fairly admits that the Tribunal has rightly applied the multiplier of 17

and has rightly deducted 1/4th on account of personal expenses. He also submits

that the age of the deceased has also been correctly ascertained and the amount

awarded under Conventional head is also correct. He only prays that the amount

of compensation be reassessed taking into consideration the income as assessed

by Court at Rs. 8,000/- per month and grant compensation under the head of

future prospect. During course of argument he also admits that the Insurance

Company had already satisfied the amount and paid the amount of compensation

so awarded.

12. Mr. G.C. Jha, learned counsel appearing on behalf of the Insurance

Company submits that the Tribunal has wrongly held that there was no violation of

the policy. He submits that though the Insurance Company has provided the

document i.e. the service report to suggest that the vehicle was being driven at the

relevant time by a person having license but he was not qualified to drive a goods

transport vehicle, the court overruled the same and has held that the driver had

valid driving license to drive the said offending vehicle. He submits that the Court

in the impugned Judgment has held that the Court has verified the said license of

the driver and got photocopy of the details, but from where the Court had got that

has not been mentioned. He submits that it was beyond the jurisdiction of the Court

to get the driving license verified. He submits that since there is a violation of the

terms and condition of the policy, the Insurance Company could not have been saddled with the liability to pay the entire amount of compensation. He submits

that in fact the Tribunal should have given the right of recover the aforesaid amount

from the owner of the vehicle and by not doing so Tribunal has committed grave

error. On the question of quantum. Mr. G.C. Jha, learned counsel submits that the

Tribunal has disbelieved the certificate of salary issued by the employer and had

considered the deceased to be a semi-skilled labourer and thus have assessed

the income to be Rs. 6240 per month. He submits that so far as the future prospect

is concerned, the judgment delivered by the Hon'ble Supreme Court of India in the

case of Pranay Sethi (supra) will govern this case.

13. On the argument advanced by Mr. G.C. Jha, learned counsel appearing on

behalf of the respondent, Insurance Company to substantiate that there are

sufficient materials on the record to grant right of recovery is concerned, this Court

is of the opinion that in an appeal filed by the appellants for enhancement of

amount of compensation the aforesaid ground cannot be considered. If the

Insurance Company is aggrieved by any finding made in the Judgment which was

against the Insurance company, and wanted the liability to be shifted, they should

have filed a separate appeal. In this case there is nothing on record to suggest

that any separate appeal has been filed rather from the statement of the

appellant/claimants it is clear that the insurance company has satisfied the award

meaning thereby they are accepting the finding arrived at by the Tribunal, including

the finding that there is no violation of the condition of the policy and the driver had

valid license to drive offending vehicle.

14. On the question of the salary of the deceased, I find that there is a certificate

showing that the deceased was being paid Rs. 13,000/- per month by his employer.

The Tribunal did not accept the said certificate on the valid ground that the

employer had failed to substantiate as to how the amount was paid and in what

mode. The Tribunal thereafter concluded that since the deceased was mason he

can be treated to be a semi-skilled labourer and Rs. 240 per day can be his daily

wages. The Tribunal thereafter calculated the salary of the deceased for 26 days

to be Rs. 6240/- on basis of notification of 2015, but thereafter went on to hold that since the accident had taken place on 2018 the income of the deceased can be

taken to be Rs. 8,000/- per month for the purpose of calculation of compensation.

Thus, from the award I find that the Court below has fixed the income of the

deceased to be Rs. 8,000/- per month. Thereafter, the Tribunal went on to compute

the amount of compensation. While making such calculation the court did not take

the income of the deceased as Rs. 8,000/- but calculated compensation on Rs.

6240 per month as income. I find that the court below has committed an error in

calculation which is not in consonance with the finding of the Tribunal, wherein the

tribunal has assessed the income of the deceased to be Rs. 8,000/- per month.

Thus the entire compensation should have been calculated on the income of the

deceased which is assessed by the Tribunal as Rs. 8,000/- per month. Further

while going through the award I find that the concept of enhancement on account

of future prospect which is enumerated in the judgment of the Hon'ble Supreme

Court of India in the case of Pranay Sethi (supra) has not been applied in this

case, though in this instant case the judgment has been delivered after

pronouncement of the judgment in the Hon'ble Supreme Court in the case of

Pranay Sethi (supra). The Hon'ble Supreme Court in the case of Pranay Sethi

(supra) clearly held that the heirs of self-employed person are also entitled to

receive compensation under the head of "future prospect". After applying the

judgment of the Hon'ble Supreme Court, I find that as the deceased was in the

age group of 26 to 30 (which is the admitted fact), 40 % enhancement should be

awarded to the claimants. Thus, I hold that the compensation amount also needs

to be enhanced by 40 per cent.

15. Considering what has been held above the amount of compensation can be

recalculated as follows:-

Rs. 8000x12= Rs. 96000(annual income)

Rs. 96000x17(multiplier)= Rs. 16,32,000/-

Rs. 16,32,000 - 1/4th (Deduction) = Rs.12,24,000/-

Rs.12,24,000 + 40%(Future Prospect)=Rs. 17,13,600/-

Rs. 17,13,600 + Rs. 70,000/-(conventional head)= Rs. 17,83,600/-

Thus as per fresh calculation, the appellants are entitled to receive Rs.

17,83,600/-, which is a fair compensation.

16. Out of the enhanced amount, as admitted by the claimants Rs. 10,24,720

has already been paid. Thus the balance amount comes to Rs. 7,58,880/-

17. Thus the claimants are entitled to an additional amount of Rs. 7,58,880/-

The aforesaid amount will carry an interest of Rs. 7 % per annum from 10.01.2020,

till amount is paid by the Insurance Company to the claimants.

18. Out of the enhanced amount, One lakh seventy five thousand should be

paid to the mother of the deceased and the balance be paid to the wife and her

children, out of which two lakh rupees each be deposited in the name of minor

children of the deceased and the rest be paid to the wife of the deceased.

19. With the aforesaid observation and direction this appeal stands allowed.

Rajnish/c.p.2                                                    (ANANDA SEN, J.)