Jharkhand High Court
Shiv Viskarma vs Shabir Khan on 24 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 661 of 2018
1. Shiv Viskarma
2. Beli Devi .... .... Appellant(s).
Versus
1. Shabir Khan
2. Mumtaz Khan
3. The Oriental Insurance Co. Ltd. .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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For the Appellant(S) : Mr. Awnish Shankar, Advocate
For the Respondent no.3 : Ms. Rita Pandey, Advocate
For the Respondent : Md. Zaid Ahmed, Advocate
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6 /24.09.2021
In this appeal, the appellants have prayed to enhance the amount of
compensation.
2. Counsel appearing on behalf of the appellants submits that the Tribunal in
award dated 11.9.2018 passed by Presiding Officer, MVACT, Hazaribag in Claim
Case No. 112 of 2013 has wrongly assessed the income of the deceased to be
Rs.3000/- per month. He submits that it was stated in the claim application that
the deceased was mechanic and was running a shop in the name of "Sajjan
Electronics" and was earning Rs.4000/- per month. This statement was supported
by the oral evidence of the father of the deceased i.e C.W-1 but the Tribunal did
not accept the same only on the ground that the boy of 19 years cannot be not so
mature to earn Rs.4000/- per month. He submits that this assumption and
presumption by the Tribunal in absence of any contradictory evidence is
absolutely bad. He submits that since there is no contradictory evidence, the
monthly income of the deceased should have been considered to be Rs.4000/- per
month.
3. Md. Zaid Ahmed, counsel appearing on behalf of the owner of the vehicle
submits that since there was no documentary evidence in support of such
statement to the effect that the deceased was earning Rs.4000/- per month, the
Tribunal had correctly assessed the income of the deceased at Rs.3000/- per
month. He submits that there is no scope for enhancement of the awarded
compensation.
4. Counsel appearing on behalf of Insurance Company submits that right of
recovery has been awarded to the Insurance Company thus Insurance Company
has got no objection if just and proper compensation is assessed.
5. In this application the appellants have prayed for enhancement of award
amount. Counsel for the appellants has raised only two submissions:-
1) The deceased was earning Rs.4000/- per month and the Tribunal has
wrongly assessed the income of the deceased to be Rs.3000/- per month.
2) Under the conventional head only Rs. 30,000/- has been awarded.
6. While I go through the impugned award, I find that in the claim
application the claimants have claimed that deceased was earning Rs.4000/- per
month and he was running a shop in the name of "Sajjan Electronics". Father of
the deceased as C.W-1, had deposed that deceased was earning Rs.4000/- per
month. From the record I find that the opposite parties did not controvert the
aforesaid fact.
7. Be it noted that against the owner, the Tribunal proceeded ex-parte. The
Tribunal has assessed the income of the deceased to be Rs.3000/- per month and
did not believe the statement of the claimants, only on the ground that the
statement of the father of the deceased to the effect that the deceased was earning
Rs. 4000/- per month is not convincing as the age of the deceased was about 19
years and he must not have matured by then. This finding is solely on the basis of
assumption. The positive evidence which is there on the record, is to the effect
that the deceased was earning Rs.4000/- per month, which is uncontroverted.
Thus, this Court is of the opinion that Tribunal has wrongly considered the
monthly income of the deceased to be Rs.3000/- per month, which should have
been assessed to be Rs.4000/- per month. Thus I hold that the income of the
deceased for the purpose of calculating the compensation should be Rs.4000/- per
month. As the deceased was bachelor aged about 19 years and as he was already
earning, 40% of income on account of future prospects should be applied.
8. Under the conventional head, amount of Rs.30,000/- has been awarded. In
the case of National Insurance Company Limited Vrs. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680 the Hon'ble Supreme Court has held that the
amount of Rs. 70,000/- should be awarded under conventional head. Thus in view
of the aforesaid judgment claimant are entitled to receive compensation to the
tune of Rs.70,000/- under conventional head.
9. So far as the age of the deceased, the multiplier and the dependency are
concerned, there is no dispute. Now if the amount of compensation is calculated
considering the monthly income of the deceased to be Rs.4000/- per month the
amount would be as follows:-
Rs.4000/- x 12 x 18 (multiplier) = Rs.8,64,000/-
Rs.8,64,000/- - 1/2nd (Dependency) = Rs.4,32,000/-
Rs. 4,32,000/- + 40% (future prospects) = Rs. 6,04,800/-
Rs. 6,04,800/- + 70,000/-( Conventional Head) = Rs. 6,74,800/-
The Tribunal has awarded amount of Rs.4,83,600/- as compensation. As
per this Court just compensation is Rs.6,74,800/-. The balance amount is
Rs.1,91,200/- which the claimants are further entitled to receive.
It is evident and admitted fact that the right of recovery has been given to
the Insurance Company, to recover the amount of compensation from the owner
of the vehicle. The owner of the vehicle has not challenged the aforesaid finding
which now has become final. Thus I direct the Insurance Company to pay the
balance amount of Rs.1,91,200/- within a period of two months after deducting
the interim compensation, if not already deducted, while making the payment.
The balance amount will carry an interest of @ 6% p.a from the date of the award
of the Tribunal till the same is paid. The aforesaid amount, will be recovered by
the Insurance Company from the owner of the vehicle.
9. Accordingly, the instant appeal stands allowed.
(ANANDA SEN , J)
anjali/ C.P 3
