Rubi Kumari vs M/S. Balajee Roadways
2022 Latest Caselaw 1889 Jhar

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                                                               M.A. No. 357 of 2013


IN THE HIGH COURT OF JHARKHAND AT RANCHI
              M.A. No.357 of 2013
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1. Rubi Kumari, W/o -Late Ravi Kumar Singh @ Daya Singh

2. Pankaj Kumar, S/o -Late Ravi Kumar Singh @ Daya Singh, Aged about 10 years.

3. Anup Kumar, S/o -Late Ravi Kumar Singh @ Daya Singh, Aged about 7 ½ years.

[Appellant nos. 2 & 3, being minors are represented through their mother Rubi Kumari (Appellant no.1 herein)]

4. Raj Kumari Devi, W/o -Sheo Prasad Singh All residents of Rana Pratap Nagar, Chas, P.O. & P.S. -Chas, District - Bokaro.

.... .... .... Appellants Versus

1. M/s. Balajee Roadways, Mahendra Garage, Near Ramvilas Petrol Pump, Ratu Road, At/P.O. -Ranchi, P.S. -Sukhdeonagar, District - Ranchi (Jharkhand), PIN -834005.

2. HDFC-ERGO General Insurance Co. Ltd., Rohini Complex, P.O. & P.S.

-Lalpur, Ranchi (Jharkhand) .... .... .... Respondents

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For the Appellants : Mr. Shahid Khan, Advocate : Md. Razaullah Ansari, Advocate For the Respondent no.2 : Mr. Peeyush Krishna Choudhary, Advocate

PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:-

1. Heard the parties. Though service of notice upon the

respondent no.1 is sufficient, no one turns up on behalf of him in spite

of repeated calls hence this appeal is heard ex parte in respect of the

respondent no.1.

2. This appeal has been preferred against the judgment and

award dated 04.09.2013 passed by the 5th Presiding Officer, Motor

Vehicle Accident Claims Tribunal, Hazaribagh in Claim Case No.99 of

2009 whereby and where under in a claim petition filed under section

166 of the Motor Vehicles Act, 1988, the learned Motor Vehicle

Accident Claims Tribunal held that the claimants are entitled to

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compensation of Rs.4,46,550/- and interest thereon @ 6% with effect

from 19.06.2012 against the respondent no.2 and ordered that if the

said amount is not paid within one month of the judgment, the order

shall carry penal interest @ 9% till realization and directed the

respondent no. 2 insurance company to pay the said amount of

compensation to the claimants.

3. The brief facts of the case is that the claimants -appellant

nos. 1 to 4 are the dependents of the deceased -Ravi Kumar Singh @

Daya Singh a professional driver, who while returning from Ranchi

by a Tata Sumo Vehicle belonging to his employer was dashed by the

offending truck coming from the opposite side while the truck was

being rashly and negligently driven and the deceased sustained

serious and multiple injuries in the said motor vehicle accident and

succumbed to his injuries on the spot itself. In the claim petition, it

was mentioned that the deceased was aged about 29 years and was

earning Rs.6,000/- per month as salary and in addition to that, he was

getting Rs.75/- per day for food and maintenance allowance etc. The

learned Motor Vehicle Accident Claims Tribunal framed the single

issue as to whether, the claimants are entitled to get compensation, if

so, then to what extent and from which of the opposite party. The

learned Motor Vehicle Accident Claims Tribunal after considering the

evidence in the record held that though there is evidence in the record

that the deceased was getting Rs.6,000/- per month as salary from his

employer but observed that a professional driver is expected to get

Rs.5,000/- per month in total in the year 2009 and assessed his income

as Rs.5,000/- per month and further observed that since the owner

M.A. No. 357 of 2013

and insurer of the Tata Sumo Vehicle have not been brought into

picture, hence the learned Motor Vehicle Accident Claims Tribunal

held that the insurer of the truck shall be liable to indemnify 65% of

the liability.

4. The learned counsel for the appellants submits that though

the appellants have contended several grounds in the appeal but the

appellants abandon their contention that the multiplier of 18 ought to

have been applied by the learned tribunal instead of the multiplier of

17 and submits that since the learned tribunal has assessed the age of

the deceased to be 35 years on the basis of his age mentioned in the

post mortem report, the appellants do not contest the multiplier of 17

but confine their challenge of the impugned award for enhancement

of the amount of compensation awarded for other reasons. The

learned counsel for the appellant, drawing attention of this Court to

the Judgment of Hon'ble Supreme Court of India in the case of

National Insurance Company Limited Vs. Pranay Sethi & Others,

reported in, (2017) 16 SCC 680, paragraph no. 59 of which reads as

under:-

"59. In view of the aforesaid analysis, we proceed to record our conclusions:

59.1. The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

59.2. As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to

M.A. No. 357 of 2013

50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier.

59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.

submits that as mentioned in paragraph no. 59.4 of the aforesaid

judgment of the Hon'ble Supreme Court of India, since the deceased was

on a fixed salary, the learned tribunal failed to consider that as the age of

the deceased was assessed as 35 years by the learned tribunal itself, thus

the deceased was below the age of 40 years, 40% of the established

income to the total income of the deceased while computing the quantum

of compensation ought to have been added. It is next submitted by the

learned counsel for the appellants that as the employer of the deceased

has categorically stated in his testimony as C.W.2 that the deceased was

earning Rs.6,000/- per month and besides he was being paid daily

allowance of Rs.75/-, the learned Motor Vehicle Accident Claims

Tribunal erred; by in an arbitrary manner assessing the monthly income

of the deceased to be Rs.5,000/-. It is next submitted by the learned

counsel for the appellants that as mentioned in paragraph no. 59.8 of the

M.A. No. 357 of 2013

Judgment of Hon'ble Supreme Court of India, in the case of National

Insurance Company Limited Vs. Pranay Sethi & Others (supra), the

learned tribunal ought to have awarded the reasonable amounts under

the conventional heads i.e. Rs.15,000/- for loss of estate, Rs.40,000/- for

loss of consortium and Rs.15,000/- for funeral expenses, which the

learned tribunal failed to consider and allowed only a meager amount of

₹ 5000/- towards loss of consortium and ₹ 2000/- towards funeral

expenses, instead of awarding Rs.70,000/- on conventional heads. It is

next submitted by the learned counsel for the appellants that the learned

tribunal also erred by holding that the insurance company -respondent

no.2 is liable to pay only 65% of the quantum calculated on the basis of

the formulae only because the owner and insurer if any of the Tata sumo

vehicle which was also involved in the accident were not impleaded as

the parties to the claim petition. It is then submitted by the learned

counsel for the appellants that keeping in view the fact that it is the

specific case of the claimants, all along, that the motor vehicle accident

occurred only because of the rash and negligent driving of the driver of

the truck and the tribunal also accepted the same to be the basis for the

awarding of compensation to the claimants so non-impleading the owner

or insurer if any of the Tata sumo vehicle, which has no contributory

negligence in the accident, cannot be a ground to deny the full

compensation to which the claimants are entitled in view of the death of

the deceased in the said motor vehicle accident caused solely by the rash

and negligent driving of the driver of the truck concerned, the owner and

insurer of which have been impleaded as opposite parties, more so

because there is no material in the record to suggest that the Tata sumo

M.A. No. 357 of 2013

vehicle was in any way responsible for the said motor vehicle accident

which resulted in the death of the deceased. It is next submitted by the

learned counsel for the appellant that in view of the principles of law laid

down by the Hon'ble Apex Court, in the case of Sarla Verma (Smt.) And

Others Vs. Delhi Transport Corporation And Another, reported in

(2009) 6 SCC 121, paragraph no. 30 of which reads as under:-

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one- third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."

(Emphasis supplied)

The learned tribunal erred by taking one-third of the income of the

deceased as personal expenses, as there is no dispute that the deceased

was a married person and had four dependents at the time of his death,

so it is submitted that, the learned tribunal ought to have deducted only

1/4th of the total income of the deceased towards his personal expenses

while calculating the quantum of compensation.

5. It is lastly submitted that the judgment and award be modified and

the compensation be enhanced accordingly.

6. The learned counsel for the respondent no.2 -insurance company

on the other hand defended the impugned award and submitted that the

learned tribunal was well within its jurisdiction to estimate the income of

the deceased at Rs.5,000/- per month and the claim for any amount in

excess of Rs.4,46,550/- will be a windfall for the appellant -claimants.

Hence, it is submitted that in the impugned judgment and award, in the

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facts and circumstances of the case; proper amount of compensation has

been quantified by the learned Motor Vehicle Accident Claims Tribunal.

It is lastly submitted that this appeal being without any merit be

dismissed.

7. Having heard the rival submissions made at the bar and after

going through the materials in the record, the following points for

determination crop up in this appeal for consideration:

(i) Whether the learned Motor Vehicle Accident Claims Tribunal erred by assessing the monthly income of the deceased to be Rs.5000/- and if yes, what would be the monthly income of the deceased?

(ii) Whether the learned Motor Vehicle Accident Claims Tribunal was proper in deducting the 1/3rd of the amount of income of the deceased as his personal income?

(iii) Whether the learned Tribunal erred by not awarding Rs.70,000/- in total towards the compensation amount under conventional heads?

(iv) Whether the learned Tribunal erred by holding that the Insurance Company- Respondent No.2 is liable to pay 65% of the compensation amount?

(v) Whether the amount of interest that is 6% over the compensation amount is proper?

(vi) Whether the Tribunal is correct in holding that the interest on the award was to be paid from 19.06.2012-which is the date on which the claimants first produced their witness, instead of from the date of institution of the claim petition?

8. So far as the first point for determination regarding the proper

monthly income of the deceased is concerned, perusal of the record

reveals that the C.W.2 has categorically stated in his deposition filed in

shape of affidavit that he used to pay Rs.6000/- per month to the

deceased besides paying Rs.75/- per day as a daily allowance but it is

M.A. No. 357 of 2013

pertinent to mention that in paragraph no.1 of his cross-examination, the

C.W.2 has categorically stated that he used to pay gross amount of about

Rs.6000/- every month to the deceased. No material could be placed by

the Insurance Company nor is any material available in record from any

other source to suggest that the deceased was getting any amount less

than Rs.6000 /- per month. Under such circumstances, this Court has no

hesitation in holding that the learned Tribunal erred by observing, on the

basis of its personal knowledge or experience that the deceased was

earning Rs.5000/- per month in the year 2009, regarding which it gave no

opportunity to the parties to rebut the same. Considering the evidence in

the record, this Court is of the considered view that this is a proper case

where the monthly income of the deceased be assessed as Rs.6000/- per

month as stated by C.W.2 in his cross-examination. The first point of

determination is answered accordingly.

9. So far as the second point of determination regarding deducting

the 1/3rd of the amount of income of the deceased as his personal income

is concerned, as has been held in paragraph no.30 by the Hon'ble

Supreme Court of India in the case of Sarla Verma (Smt.) And Others Vs.

Delhi Transport Corporation And Another (supra), as the deceased was

a married person and having in total four dependents, all of whom are

the appellants-claimants to this case and joint claimants before the

learned Tribunal, this Court has no hesitation in holding that the learned

Tribunal erred in deducting 1/3rd towards personal expenses of the

deceased and this Court is of the considered view that the learned

Tribunal ought to have deducted 1/4th of the total income of the deceased

towards his personal expenses. The second point of determination is

M.A. No. 357 of 2013

answered accordingly.

10. So far as the third point of determination regarding compensation

amount to be paid under conventional heads is concerned, as has been

held by the Hon'ble Supreme Court of India in paragraph no.59.8 in the

case of National Insurance Company Limited Vs. Pranay Sethi &

Others (supra), the total sum of Rs.70,000/- are to be paid under the

conventional heads but perusal of the record reveals that only Rs.7000/-

has been paid on conventional heads. So, this Court has no hesitation in

holding that in view of the enunciation of law by the Hon'ble Supreme

Court of India in paragraph no.59.8 of the judgment of National

Insurance Company Limited v. Pranay Sethi & Ors. (supra), this is a fit

case where the learned Tribunal ought to have awarded Rs.70,000/-

towards the compensation under the conventional heads being

Rs.15,000/- for loss of estate, Rs.40,000/- towards loss of consortium and

Rs.15,000/- towards funeral expenses that is Rs.70,000/- in total and

erred by awarding ₹ 5000/- towards loss of consortium and ₹ 2000/-

towards funeral expenses that is in total ₹ 7000/-under the conventional

heads. Thus, this Court has no hesitation in holding that the appellant-

claimants are entitled to the further amount of Rs.63,000/-under the

conventional heads. The third point of determination is answered

accordingly.

11. Now coming to the fourth point of determination as to whether the

Insurance Company- Respondent No.2 is liable to pay only 65% of the

compensation amount is concerned, perusal of the record reveals that

C.W.3, who is the eye witness to the occurrence has categorically stated

that the truck bearing registration no. CJ-04-JB-5997 being rashly and

M.A. No. 357 of 2013

negligently driven and dashed the Tata Sumo Vehicle of which the

deceased was the driver and in the process, the said truck was running in

the wrong side. Thus it is crystal clear from the evidence in the record

that the offending truck was solely responsible for the motor vehicle

accident by the rash and negligent driving of it by its driver. It is not the

case of any of the parties that the Tata sumo vehicle was any way

responsible for the motor vehicle accident in question which caused the

death of the deceased. In other words it is not the case of any of the

parties that the Tata sumo vehicle has any contributory negligence in the

said motor vehicle accident. Nor there is any material in this respect in

the record in this respect. The learned tribunal has also not returned any

finding that the Tata sumo vehicle had any contributory negligence in the

said accident. As rightly stated by the learned counsel for the appellants,

there is no material in the record to suggest that any case was instituted

against the Tata sumo vehicle driven by the deceased, at the time of the

said motor vehicle accident. Under such circumstances, this Court has no

hesitation in holding that the learned Tribunal erred in holding that the

Insurance company is liable to pay only Rs.65% of the compensation. This

court in view of the materials available in the record is of the considered

view, that the respondent no. 2-insurance company is liable to pay the

entire compensation amount payable to the claimants in this case. The

fourth point of determination is answered accordingly.

12. So far as the fifth point of determination regarding amount of

interest that is 6% over the compensation amount is concerned, keeping

in view amount of interest paid by the Nationalized Banks at the relevant

time, this Court is of the considered view that interest at the rate of 6%

M.A. No. 357 of 2013

per annum is a fair rate of interest awarded by the learned Tribunal and

hence, the same do not warrant any interference by this Court. The fifth

point of determination is answered accordingly.

13. So far as the sixth point of determination regarding the date from

which the interest is to be paid is concerned, perusal of the record reveals

that though the claim petition was filed on 22.12.2009 but the claimants

were not diligently pursuing the claim petition and after taking

adjournment, ultimately they produce their first witness only on

19.06.2012. So, considering the laches on the part of the claimants-

appellants the resulting in delay of disposal of the claim petition by not

pursuing the claim petition diligently and as the delay in producing

witness was because of them only, this Court is of the considered view

that the learned Tribunal has rightly held that the claimants are entitled

to the interest on the compensation amount only from 19.06.2012. Thus,

this Court is of the considered view that the said portion of the order of

the Tribunal does not warrant interference from this Court. The sixth

point for determination is answered accordingly.

14. Now coming to the quantum of the compensation to be awarded to

the appellants-claimants, in view of the finding of this Court in respect of

six points for determination, since, the monthly income of the deceased

has been assessed as Rs.6000/- after deducting 1/4th of the said amount

as personal expenses, the amount of contribution per month comes out of

Rs.4,500/- that is Rs.54,000/- per annum and multiplying the same with

multiplier 17, the total amount comes to Rs.9,18,000/-. Considering the

fact that the deceased was on a fixed salary other than in a permanent job

and he was below 40 years making an addition of 40% of the established

M.A. No. 357 of 2013

income, the amount comes to Rs.12,85,200/- and adding the differential

amount of Rs.63,000/- towards compensation on conventional heads, the

total amount comes to Rs.13,48,200/-, less the amount of Rs.4,46,550/-

already paid to the claimants, the remaining amount to be paid to the

claimants comes out to Rs.9,01,650/-. It is pertinent to mention here that

since the annual income of the deceased was ₹ 72,000/-so he was not

liable to pay any income tax hence this case does not warrant deduction

of any income tax from the monthly income of the deceased of the motor

vehicle accident.

15. Accordingly, the impugned judgment and award is modified to the

extent that the Respondent No.2- Insurance Company is directed to make

a further payment of Rs.9,01,650/- with interest there on at the rate of 6%

per annum with effect from 19.06.2012 to till the date of actual payment

within three months from the date of this Judgment by paying the said

compensation amount and interest thereon by appropriate modes as per

law.

16. The impugned judgment and award is modified to the aforesaid

extent only. Parties to bear their own costs.

17. Let a copy of this Judgment along with Lower Court Records be

sent back to the learned court below forthwith.

18. In the result, this appeal is disposed of with the aforesaid

modification.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 10th May, 2022 AFR/ Sonu-Gunjan/-