Jharkhand High Court
Shanti Devi vs Rudra Narayan Pandey on 27 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 723 of 2018
1. Shanti Devi
2. Abhinandan Besra
3. Devnandan Besra
4. Ganesh Besra
5. Mangoli Devi............ Appellants
Versus
1. Rudra Narayan Pandey
2. The Oriental Insurance Company Ltd.
3. Mahadeo Tiwari ............ Respondents
......
Coram: Hon'ble Mr. Justice Ananda Sen
Through:-Video Conferencing
......
For the Appellants : Mr. Prabhash Ch. Sinha, Advocate
For the Respondents : Mr. Manish Kumar, Advocate
......
4/27.09.2021 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 complaint in respect to the audio and video clarity and quality.
This appeal has been listed today under the heading for Orders on
office note. The office has placed a note that the notices were issued to
Respondent Nos. 1, 2 & 3. It has been further noted that Respondent No.
2, i.e. the Insurance Company has already appeared through Vakalatnama
and the notice issued to Respondent No. 3 returned un-served and so far
as notice to Respondent No. 1 is concerned, the same has been received by
his son.
After going through the Award and the array of the respondents, I
find that the Tribunal has directed the Insurance Company to pay the
awarded amount. The Insurance Company has not challenged the Award.
Vide issue no. V, the Tribunal has held that there is no violation of any
term and condition of the policy.
Considering the aforesaid fact and the fact that the Insurance
Company has not challenged the Award, this Court is of the opinion that
no useful purpose will be served in issuing notice to the owner and driver
of the vehicle. Issuing a fresh notice to the owner and driver of the vehicle
will keep this matter pending for an indefinite period till their appearance,
though no effective order can be passed against them in view of the Award.
Since, there is no grievance against the owner and driver of the
vehicle and nor any relief has been sought for from the owner and driver of
the vehicle either by the claimants or by the Insurance Company, I am not
inclined to issue further notice to the owner and driver of the vehicle.
The parties agree for final disposal of this appeal at this stage
itself.
Heard learned counsel for the appellants and learned counsel for
the respondent- Insurance Company.
Only one dispute has been raised by the claimants while filing
this appeal, praying therein for enhancement of the compensation amount.
It is the case of the appellants that the deceased was a Mason and
considering his profession, his per month income has not been correctly
assessed as Rs. 3000/- P.M. He submits that the amount of Rs. 3000/-
P.M. is a notional income, which is taken into consideration when a
person is unemployed. He submits that in the instant case there is
evidence led by the claimants' witnesses especially CW-1 that the deceased
was a Mason and in that view Rs. 16,000/- P.M. should be considered as
the monthly income of the deceased. In the alternative, he submits that
even if it is held that the deceased was not a Mason but a labourer, then
also the minimum rate of wages should be considered and Rs. 7000/- P.M.
should be assessed as the income of the deceased as per the rate of the
minimum wages prevalent.
Counsel appearing on behalf of the Insurance Company submits
that the Tribunal has rightly rejected the claim of the claimants to the
effect that the deceased was working as a Mason. He submits that from
the Award itself it is clear that the witnesses of the claimants themselves
have deposed that the deceased was working as a labourer. He submits
that when the deceased was working as a labourer, his wage should be
calculated accordingly and the minimum wage of an unskilled labour,
should be considered while assessing the compensation in this case.
In this appeal, the only dispute is in respect of the monthly
income of the deceased. Rest of the factors, i.e. the age, dependency,
deduction on account of personal expenses, the rate of future prospects,
and compensation on account of conventional head, has not been
disputed.
Considering the submission of the parties, now I have to consider
as to whether the deceased was a Mason or was a labourer and what
would be the correct monthly income of the deceased.
From the Award, I find that CW-1, who is the wife of the deceased,
in para-12, has stated that her husband was a Mason, but she could not
say where her husband was working. So far as CW-2 is concerned, he
stated that the deceased was working as a labourer. CW-3 is a very
important witness, who also stated that the deceased was working as a
labourer and he was working with the deceased. Thus, in view of the
specific statements of CWs.-2 & 3, it can be easily held that the deceased
was working as a labourer. The Tribunal also held in the same manner. I
find that no illegality has been committed by the Tribunal while holding
that the deceased was working as a labourer, which is based on evidence.
Now the question is as to what would be the monthly income of
the deceased. Rs.3000/- is the notional income, which is taken into
consideration when the deceased is unemployed. In this case, admittedly,
the deceased was employed and he was working as a labourer in the
construction site. There is positive evidence to that effect. Thus, the
Tribunal could not have fixed the monthly income of the deceased to be
Rs.3000/- P.M. If we consider the minimum wage and the number of
working days, i.e. 26 days a month, this Court is of the view that
Rs.7000/- P.M. is the income of a labourer, who is working in a
construction site.
Considering the aforesaid fact, this Court is of the opinion that
the income of the deceased should be considered @ Rs.7000/- P.M. for the
purpose of calculating the compensation.
Considering the income of the deceased @ Rs.7000/- P.M., the
fresh calculation would be Rs. 7000 X 12 X 17 = Rs.14,28,000/-. After
deduction of 1/4th, which will be Rs.3,57,000, the amount would be
Rs.10,71,000. After adding 40% as a future prospects and Rs.70,000/- on
account of non-pecuniary benefits on the aforesaid amount, the total
would be Rs.15,69,400/-. Thus, the total compensation amount would be
Rs.15,69,400/-.
The aforesaid calculation has been made in terms of the judgment
passed by the Hon'ble Supreme Court in the case of "National Insurance
Company Limited - versus- Pranay Sethi & Others, reported in (2017) 16 SCC 680".
The Tribunal has awarded Rs.7,12,600/- as compensation,
whereas as per the fresh calculation, the claimants are entitled to receive
Rs.15,69,400/-. Thus, I direct the Insurance Company to pay the balance
amount of Rs.8,56,800/- to the claimants within three months from today.
The balance amount will carry an interest @7% P.A. from the date of
Award of the Tribunal till the date of payment.
The amount paid to the claimants in terms of Section 140 of the
Motor Vehicle Act, should be deducted from the aforesaid amount, if not
already deducted.
This appeal stands allowed to the aforesaid extent.
(Ananda Sen, J)
Mukund/-cp.2
