Jharkhand High Court
M/S United India Insurance Co. ... vs Mahamaya Debi on 6 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 52 of 2017
M/s United India Insurance Co. having its office on Assam Access Raod, Deoghar
.... .... Appellant(s).
Versus
1. Mahamaya Debi
2. Udai Kumar Rai
3. Nakul Kole .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Appellant(S) : Mr. Debesh Ch. Ghosh, Advocate
For the Respondents : Mr. Onkar Nath Tiwary, Advocate
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09/Reserved on 04.01.2022 Pronounce on: 6 /12 /2022
Heard learned counsel for the parties.
2. This appeal has been filed by the appellant- M/s United India Insurance Co.
challenging the award dated 15.06.2016 passed in Motor Accident Claim Case No. 36
of 2005 by 2nd Additional Sessions Judge-cum-MACT, Deoghar.
3. Counsel appearing on behalf of the Insurance Company has raised following
issues while challenging this appeal.
a) Tribunal has committed an error in doubling the income of the deceased on the plea
of future prospect of the deceased.
b) Tribunal has failed to take into consideration that the claimants have failed to prove
the income of the deceased by adducing any document and evidence and the permanent
nature of the business.
c) Tribunal has committed an error in applying the multiplier of 18.
d) Tribunal has committed an error of law in awarding compound interest which is
contrary to law.
4. Counsel appearing on behalf of the claimants submits that the Tribunal has
correctly assessed the income and fixed the compensation to the tune of Rs. 13,01,000/-
which cannot be said to be exorbitant. He submits that the deceased was engaged in
business of Dairy farming and from the said business his monthly earning was Rs. 4500/-
, which is undisputed. The Tribunal has assessed the age of the deceased as 23 years and
applied the multiplier of 18 and awarded compensation to the tune of Rs. 13,01,000/-.
He submits that under conventional head Rs. 65,000/- has been awarded as
compensation, in place of Rs. 70,000/- as held in the case of National Insurance
Company Limited Vrs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680. Deceased
being a bachelor the deduction should have been 50%, not 1/3rd .
5. The owner of the offending vehicle appeared and filed written statement taking
a plea that tractor and trailer were not involved in this accident and this deceased has
caused this accident by his rash and negligent driving with some other vehicle and they
are falsely being implicated in this case.
The Insurance Company has also filed their written statement. It was submitted that
vehicle in question was insured by his company but the insurance of the tractor was only
for agricultural purpose and it was not insured for commercial purpose. It was submitted
that the tractor was attached with trailor loaded with sand meaning thereby that at the
time of accident it was used for a commercial purpose. It was submitted that for the
violation of the terms and conditions of the Insurance policy, Insurance Co. is not liable
to pay any compensation to the claimants, if any, compensation is awarded. The owner
of the vehicle is liable to pay the compensation.
6. After hearing the counsel for the appellant and the respondents and after going
through the impugned judgment and the entire LCR, I find that an FIR was lodged by
one Bijoy Kumar Mishra brother of deceased stating therein that deceased went from
the house on his red coloured Hero Honda CD 100SS motorcycle bearing Registration
No. JH 15A 1926. In the evening near village Dudhania a tractor which was going
towards Deoghar from Pandey Chowk bearing Registration No. JH 15A 6622 attached
with trailer number JH 15A 6623 being driven rashly and negligently dashed the
motorcycle of the deceased from behind. Deceased fell down and thereafter the wheel
of tractor crushed his head resulting in spilling of blood on the road and he died on the
spot. It is his case the deceased was driving a motorcycle when the tractor and trailer
came and crushed him.
7. This appeal is at the instance of the Insurance Company on the ground
mentioned in paragraph 3 above. The deceased was aged about 23 years, thus the
multiplier of 18 has been correctly applied by the Tribunal. The Challenge thrown on
this point by the Insurance Company, has got no legs to stand. So far as income of the
deceased is concerned, the claimants have adduced oral evidence. P.W.1 claimant's
witness no.1 Kartik Prasad Jha has deposed before the Tribunal that the deceased was
earning Rs.4,500/- per month from dairy farming. In cross-examination, no question was
put to him which could lead to disbelieve the aforesaid statement. P.W2 is Amit Mishra,
who also stated that deceased was 23 years of age and was earning roughly Rs.4500/-
per month. In cross-examination there was no question which was put to him on the
point of income of the deceased. Similar is the situation in respect of other oral evidence.
Thus, I find that the Tribunal has correctly assessed the income of the deceased as
Rs.4,500/- per month.
8. So far as "Future Prospect" is concerned, I find that the Tribunal has awarded
50% enhancement on account of "Future Prospect" which is not in accordance with the
judgment passed by the Hon'ble Supreme Court in the case of National Insurance
Company Limited Vrs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680.
Since the deceased was self-employed, claimant is entitled to receive 40% enhancement
on account of "Future Prospect".
9. So far as deduction on account of personal expenses is concerned, I find that
deceased was unmarried. As he was a bachelor, half of the amount should have been
deducted in terms of the judgment of National Insurance Company Limited (Supra).
The claimant is entitled further amount of Rs.70,000/- under Conventional Head in
terms of judgment passed by the Hon'ble Supreme Court in the case of National
Insurance Company Limited (Supra).
10. So far as interest rate is concerned, I find that Tribunal has awarded half yearly
compounding interest @7.5% per annum which is absolutely erroneous. Compound
interest half yearly should not have been awarded by the Tribunal. In the instant case,
the interest which the claimant is entitled to receive is simple interest which will be from
the date of filing of the claim application. Considering the facts of this case, this Court
is of the opinion that the rate of interest should be 8% per annum.
11. Considering What has been held above the amount of compensation needs to
be recalculated as under:-
Rs.4500/-x12x18= Rs.9,72,000/-
Rs. 9,72,000/- -1/2= Rs.4,86,000/-
Rs. 4,86,000/- +40%= Rs.6,80,400/-
Rs. 6,80,400/- +Rs.70,000/-= Rs.7,50,400/-
12. The said amount will carry an interest @ 8% per annum from the date of filing
of this application which should be paid to the claimant within a period of eight weeks
from today.
13. The award is modified to the aforesaid extent. The instant miscellaneous appeal
stands allowed.
(ANANDA SEN , J)
anjali/ C.P 2
