Baby Kumari Mahato @ Baby Kumari ... vs Vikash Patro
2022 Latest Caselaw 4942 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                 Miscellaneous Appeal No. 446 of 2019
                                 With
                 Miscellaneous Appeal No. 704 of 2017
                                 With
                         I.A. No. 9964 of 2019
                            ...............

In Miscellaneous Appeal No. 446 of 2019

1. Baby Kumari Mahato @ Baby Kumari Mahto, wife of Late Lambodhar Mahato

2. Piyush Mahato, (minor) son of Late Lambodhar Mahato Represented through his mother (appellant no. 1)

3. Guruvari Devi, wife of Late Bankeshwar Mahato (Mother of the deceased) All - resident of - Village - Bhadudih, P.O. and P.S. - Chandil, District - Seraikella Kharswan, Jharkhand.

.... APPELLANTS

-V E R S U S -

1. Vikash Patro, son of Malin Patro, Resident of - Near Kali Mandir Ram Maria Basti, Adityapur, District - Seraikela Kharsawan (Owner of the Motorcycle) ... ... OPPOSITE PARTY NO. 1/RESPONDENT

2. National Insurance Company Limited, office at - Hindustan Building, Bistupur, Jamshedpur ... ... OPPOSITE PARTY NO. 2/RESPONDENT

In Miscellaneous Appeal No. 704 of 2017

National Insurance Company Limited, office at - Hindustan Building, Bistupur, Jamshedpur, District - East Singhbhum ... ... ... OPPOSITE PARTY NO. 2/ Appellant VERSUS

1. Baby Kumari Mahato @ Baby Kumari Mahto, wife of Late Lambodhar Mahato

2. Piyush Mahato, son of Late Lambodhar Mahato Represented through his mother (Respondent no. 1)

3. Guruvari Devi, wife of Late Bankeshwar Mahato (Mother of the deceased) All - resident of - Village - Bhadudih, P.O. and P.S. - Chandil, District - Seraikella Kharswan, Jharkhand.

... ... CLAIMANTS - RESPONDENTS

4. Vikash Patro, son of Malin Patro, Resident of - Near Kali Mandir Ram Maria Basti, Adityapur, District - Seraikela Kharsawan (Owner of the Motorcycle) ... ... ... RESPONDENT

CORAM: HON'BLE DR. JUSTICE S. N. PATHAK

For the Claimants: Mr. Tapeshwar Nath Mishra, Advocate.

           For the Owner of Motorcycle:          Mr. Deepak Kumar Sinha, Advocate
                                                 Ms. Rakhi Sharma, Advocate
           For the Insurance Company:            Mr. Alok Lal, Advocate


C A V ON 20.09.2022                                    PRONOUNCED ON: 06.12.2022

Dr. S.N. Pathak, J. Both the appeals arise out of Judgement/Award dated 06.05.2017, passed by District Judge - III - cum - Motor Vehicles Accident Claims Tribunal, East Singhbhum at Jamshedpur and as such both have been heard together and are being disposed of by this common Judgment. The M.A. No. 446 of 2019 has been filed by the claimants for enhancement of awarded amount of compensation whereas M.A. No. 704 of 2017 has been preferred by the National Insurance Company Ltd. for setting aside the impugned Judgment/Award.

2. Claim application was preferred by the claimants alleging therein that on 11.07.2014 at about 16:30 p.m., the informant - Manoj Kumar Mishra was returning from village Dhatkidih after servicing of summons and when he reached Kokra, Adityapur Road, near Panchyat Bhawan, he saw one Lambodar Mahato was coming from Adityapur side by his motorcycle bearing registration no. JH 06D 3582 and when he reached near Main Road, Kokra to Adityapur near Panchayat Bhawan, P.S. - Seraikela, one Motorcycle - Bajaj Discover was coming with high speed and driver was driving the vehicle very rashly and negligently dashed the Motorcycle of Lambodar Mahato. Due to said accident, Lambodar Mahato received grievous injuries and with the help of police personnel he was admitted in TMH Hospital for treatment. However, during the course of treatment, Lambodar Mahato died. On the basis of said fardbeyan of informant Manoj Kumar Mishra, the case was registered as Seraikela P.S. Case No. 60 of 2014, dated 11.07.2014 against driver of Discover Motorcycle without registration number and Engine No. JBZRCFO7545, for the offence under Sections 279, 337 and 338 of the Indian Penal Code.

3. Claimants filed Claim Application under Section 166 of Motor Vehicles Act, which was numbered as Compensation Case No. 36 of 2015 claiming compensation of Rs.55,00,000/- due to death of deceased Lambodhar Mahato in road accident.

4. Insurance Company appeared and filed written statement and contested the suit.

5. The learned Tribunal, after hearing the parties, framed following issues.

(I) Whether the case is maintainable in present form or not and whether the deceased died due to rash and negligent driving by driver of vehicle - motorcycle bearing number JH 05BK 4338?

(II) Whether vehicle was insured with the OP Insurance Company and whether OP Insurance Company is liable to make payment of compensation?

(III) Whether owner of the vehicle has violated any terms and condition of the Insurance Policy including requirement of valid Driving License? (IV) Whether Applicants are entitled to get compensation, if so, what would be quantum of compensation?

(V) Whether applicants are entitled to get any other relief or reliefs?

6. After framing of issues, claimants as well as Insurance Company adduced evidences and furnished copies of relevant documents which have been marked and exhibited with the records. Owner (Opposite Party No. 1) of offending vehicle having registration number JH 05BK 4338 also appeared and filed show cause.

7. After examining records of the case, learned Tribunal discussed the issues in details and claim application filed by the claimants has been allowed by directing the National Insurance Company Limited to draw account payee cheque of 65% of compensation amount of Rs.25,21,324/- in the name of the claimant no. 1 - Babu Kumari Mahto (wife of the deceased) who would also receive the cheque on behalf of her minor son - Piyush Mahato and the National Insurance Company Limited was further directed to draw Account Payee Cheque of rest 35% of the compensation amount of Rs.25,21,324/- in the name of claimant no. 3

- Guruvari Devi (mother of the deceased). It was further directed that both the cheques should be drawn with up to date interest @6% per annum from the date of filing of claim case till payment and cheques should be handed over to applicant within thirty days of the said order. However, the Insurance Company was given liberty to recover the amount from opposite party no. 1 (owner of the offending vehicle). Claimants were however directed to deposit half of the compensation amount in fixed deposit.

8. Mr. Tapeshwar Nath Mishra, learned counsel for the claimants submits that learned Tribunal has erred in deciding Claim Application. Considering age

and loss caused to them, claim should be at higher side. At the time of accident age of the deceased was 30 years and 6 months and as such, multiplier should be 17 as per verdict of Hon'ble Apex Court. Deceased was the only earning member of the family and his premature death has ruined life of entire family, including old mother, young wife and the minor child. The interest part should also be 12% per annum instead of 6% per annum. Learned counsel heavily relied upon Judgment passed in the case of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and submits that the claim amount may accordingly be enhanced in favour of the claimants. Learned counsel further relied upon the Judgment passed in the case of National Insurance Company Limited. Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and submitted that the Tribunal should have considered the future prospects of the deceased and on that ground also the amount of compensation should be on higher side.

9. On the other hand, counsel for the Insurance Company submits that they are not liable to pay any compensation. Claimants have not produced any relevant documents to prove age and income of the deceased. The deceased himself was driving the motorcycle rashly and negligently and in course he himself dashed against electric pole causing fatal injuries to him. The owner insured was by chance present on the place of occurrence. The motorcycle was being plied for regular ride without any registration number and certificate of fitness. There is apparent violation of conditions of Insurance Policy and as such the insurer cannot be held liable to pay any amount. The date of accident is 11.07.2014 whereas the motorcycle was registered in the name of owner on 08.02.2016 and as such the Tribunal, without going into other aspects of the matter, should have held owner liable to pay compensation without involvement of Insurance Company. The driver had no valid and effective driving licence and in such view of the matter the Tribunal should not have directed the Insurance Company to pay amount and recover the same ignoring the fact that such direction will amount to multiplicity of proceeding.

10. Mr. Deepak Kumar Sharma assisted by Ms. Rakhi Sharma, learned counsel appearing for owner of the vehicle submits that owner is not at all liable to pay compensation. The entire case as against the owner is not sustainable in the eyes of law. Learned counsel further submits that owner of the vehicle in question

is the registered owner of vehicle which was insured with the National Insurance Company Ltd. and the policy was valid since 28.05.2014 to 27.05.2015 i.e. at the time of alleged accident, the Policy was valid. Learned counsel however denies that the vehicle in question caused accident as alleged. Learned counsel further submits that owner is not at all liable to pay anything and compensation, if any, to the claimants rather same has to be paid by the National Insurance Company Ltd..

11. Be that as it may, having gone through the rival submissions of the parties and after going through the records, I find that admittedly there is no dispute regarding the factum of accident and death of the deceased owing to vehicular accident with motorcycle. There is also no dispute that the deceased was a permanent employee of Railways. It is also not in dispute that the accident took place on 11.7.2014. The definite case of appellants is that the accident occurred due to the negligence of respondent no.1, who drove the motorcycle at dangerous speed and in negligent manner. The assertion of the claimants is that if the opposite party had exercised due care and caution, the accident could have been averted. In order to substantiate their pleading, the evidence of witnesses coupled with the post-mortem report have testified that the accident occurred due to motorcycle accident. Ext.6 FIR registered by the Seraikela Police in Seraikela P.S. Case No. 60 of 2014 further proved their point.

12. On the contrary, respondent no.1 has pleaded that the accident happened due to the negligence of deceased himself, as the deceased was walking on road in drunken condition. To substantiate this contention, no chit of paper was brought on record. After considering every aspects, the Tribunal held that the accident happened due to the negligence of respondent no.1. Admittedly, at the time of accident, the respondent no.1 has no valid and effective driving licence to drive the motorcycle. The driving licence is mandatory under the provisions of the Motor Vehicle Act.

13. However, the fact remains that respondent no.2 has admitted the factum of insurance policy, though learned counsel for the insurance company has made out a case that the respondent no.1 had violated the insurance policy conditions and as such, the owner of the vehicle is to indemnify the liability of the insurance company, if any, arising out of the accident. Consequently, the insurance company is liable to pay the compensation amounts as per the impugned award as well as the enhanced

compensation, if any, to be determined herein below, with a liberty to recover the same from the respondent no.1 in M.A. No. 446 of 2019.

14. Learned counsel appearing for the appellants submits that the learned Tribunal has wrongly adopted the multiplier factor of 16, rather, it should be 17 in view of the Sarla Verma case. To examine this issue, I have meticulously examined the judgment delivered in the case of Sarla Verma. The Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and another [(2009) 6 SCC 121], affirmed by a three Judge in Reshma Kumari and others v. Madan Mohan and another [(2013) 9 SCC 65] and approved by a Constitutional Bench in National Insurance Company Limited v. Pranay Sethi and others [(2017) 16 SCC 680], has finally laid down the multiplier to be adopted for the deceased/injured person(s) falling in age group of 16 to 66 and above, which reads as follows:

    Multiplier
    Age groups of the deceased/injured       Multiplier to be adopted
     16 - 20                       :         18
     21 - 25                       :         18
     26 - 30                       :         17
     31 - 35                       :         16
     36 - 40                       :         15
     41 - 45                        :        14
     46 - 50                        :        13
     51 - 55                       :         11
     56 - 60                       :         9
     61 - 65                       :         7

15. The date of birth of the deceased at the time of accident was 18.1.1984 as per marks-sheet of secondary school examination of the deceased. Meaning thereby, on the date of accident, the deceased has completed the age of 30 years and 6 months and his running age was 31. Learned counsel appearing for the insurance company argued that since deceased had completed the age of 30 years and was running 31, the multiplier of '16' adopted by the Tribunal is correct. He also contended that, if the above interpretation is not followed, there would be a vacuum in the age group between 30 - 31 years.

16. In Sarla Verma, the Hon'ble Supreme Court has finalised the multiplier to be followed, by segregating persons falling in the age group of 16 to 66 into eleven categories, as in the table extracted above. It is settled in Amrit Bhanu Shali and others v. National Insurance Company Limited and others [(2012) 11 SCC 738) and a host of other precedents that, it is the age of the deceased/injured which is the quintessence to select the multiplier.

17. In Shashikala and others v. Gangalakshmamma and another [(2015) 9 SCC 150] the Hon'ble Supreme Court while selecting the multiplier of the deceased who had completed the age of 45 years, held as follows:

"17. In so far as appropriate multiplier, the date of birth of the deceased as per driving licence was 16.6.1961. On the date of accident i.e. 14.12.2006, the deceased was aged 45 years, 5 months and 28 days and the tribunal has taken the age as 46 years. Since the deceased has completed only 45 years, the High Court has rightly taken the age of the deceased as 45 years and adopted multiplier 14 which is the appropriate multiplier and the same is maintained."

18. In a latest judgment delivered in the case of P.O. Meera & Anr. Vs. NANDA P.NAIK, in MACA NO. 2476 OF 2008 decided on 18.1.2022, the Kerela High Court taking into consideration of Sarla Verma's case, as also Pranya Sethi' case, has held as follows:-

"A reading of the table in Sarla Verma leaves no room for any speculation that it is only when the deceased/injured completes the age of 51 years, the multiplier would shift from '13' to '11' and not when the deceased/injured attains the age of 50 years and runs the said age till the previous night of his 51 st birthday. In other words, the sine qua non to select the multiplier is the attainment of the specified age mentioned in the table and not the running of the age into the next group. It is also apposite to note, in Pranay Sethi, the age for awarding future prospects is segregated into three groups i.e., 16 ‒ 39, 40 ‒ 49 and 50 ‒ 59. Therefore, if the argument of the learned Counsel for the Insurer is to be accepted, the same vacuum would also arise at the ages of 25, 30, 35, 40, 50, 55, 60 and 65 in selecting the multiplier and the ages of 39, 49 and 59 for awarding future prospects. This Court is bound to follow the law declared by the Honourable Supreme Court as enshrined under Article 141 of the Constitution of India and not to give a different interpretation or tinker with the well settled enunciation. In the light of the above discussion and as Madhavan had only completed 50 years and 7 days, and had not attained the age of 51 years, the relevant multiplier to be selected is '13' and not '11' as wrongly applied by the Tribunal. Hence, I set aside the finding of the Tribunal in this regard, and adopt the multiplier of '13' in O.P (MV) No.1056/2002. Accordingly, I answer point No.(ii) in favour of the appellants."

19. In the light of the aforesaid judicial pronouncements, this Court is of the considered view that at the time of accident, the deceased had not completed the age of 31 years, rather, he was running in the age of 31. Therefore, the learned Tribunal has wrongly adopted the multiplier of 16, rather, it should be 17.

20. So far as the income part is concerned, it is pleaded that the deceased was a permanent employee of Railway and drawing a monthly income of Rs. 25000/- per month, as per assertion of claimant. To prove their case, the claimant has brought on record Ext.1 i.e. the payment slip of deceased. Income tax return has also been filed. The payment slip suggests that the total salary of the deceased for the month of March 2014 was Rs. 1299/; for the month of April, 2014 Rs. 23,356 and in the month of May, 2014, Rs. 21,332. Based on these salary slips, the Tribunal has come to the conclusion that the total average income of the deceased was Rs. 15,329 (1299+23356+21332 = 45987 % 3 = 15329). The learned Tribunal has totally misconstrued in arriving at the income part of the deceased. The Tribunal ought to have considered the fact that in the month of March, income tax is deducted and that is why, the monthly income for the month of March was shown as lower than the actual salary. From careful perusal of the salary slip of the deceased, it transpired that the net salary of the deceased was Rs. 21,332 as per last salary slip. In normal course, he would have served the Railways for about 30 years. Even if I do not take into consideration the future prospect of promotion to which the deceased was otherwise entitled and the actual pay revisions, it cannot be denied that the pay of the deceased would be doubled if he would have continued in services of the Railways, till the date of retirement.

21. Considering the aforesaid facts and evidence, the monthly income of the deceased is estimated at Rs. 21332 per month and after adding 50% future prospects as per Pranay Sethi's case, it will come to Rs. 31998. From this amount, his personal living expenses which should be 1/3rd there being three dependents has to be deducted. Thereby, the actual salary will come to Rs. 21332.

22. So far as interest part is concerned, the Hon'ble Supreme Court in the case of Tamil Nadu State Transport Corp. Ltd. Vs. S. Rajapriya, reported in (2005) 6 SCC 236, held that rate of interest is to be awarded normally depending upon the bank rate prevailing at the relevant time and in the month of April, 2005, the prevailing rate of interest of bank deposits was found and held to be 7.5% per annum. This view was also reiterated in the case of Dharampal & Ors. Vs. U.P. State Road Transport Corp., reported in 2008 (4) Supreme 348. Therefore, this Court hold that the appellants would be entitled to be paid interest at the rate of 7.5% per annum from the date of claim application till the date of actual payment.

23. Taking into ratio laid down in Sarla Verma's case as well as in Pranay Sethi's case, the claimants are entitled for the following compensation amounts:-

________________________________________________________________ Head Compensation Amount.

      i.      Income.                               Rs. 21332.00
      ii.     Future Prospects (50%)            (+) Rs. 10666.00
      iii.    Deductions towards
               personal expenditure (1/3rd)     (-) Rs. 10666.00
      iv.     Total Income                      =   Rs. 21332.00
      v.      Multiplier (17 x 21332)           =   Rs. 4351728.00
      vi.     Conventional Head                 (+) Rs.70000.00

________________________________________________________________ Total Compensation awarded Rs. = Rs. 4421728.00 Plus interest @ 7.5 per annum.

24. In view of the aforesaid observations, the award passed by the learned Tribunal is modified to the extent indicated as above. Accordingly, the Insurance Company (National Insurance Company Limited) is directed to pay the compensation amount to the claimants/ appellants as indicted herein above, within a period of three months from today. It goes without saying that if any amount is already paid, the same shall be adjusted before making final payment. Insurance Company is also at liberty to recover the said amount from the owner of vehicle i.e. respondent no.1 (Vikash Patro).

25. With the aforesaid observations and directions, the appeal filed by the claimants/appellants succeeds and appeal filed by the Insurance Company fails.

26. Office is directed to send back the lower court records to the Court concerned.

27. The statutory amount, if any, deposited by the Insurance Company shall be refunded back on proper application by the insurance company.

28. Pending IA also stands disposed of.

(Dr. S.N. Pathak, J.) RC/R.Kr.