Divisional Manager vs Gudiya Devi
2023 Latest Caselaw 1699 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     (Civil Miscellaneous Appellate Jurisdiction)
                       M.A. No.117 of 2018
                             ......

Divisional Manager, M/s National Insurance Company Limited ..... ...... Appellant Versus

1.Gudiya Devi

2.Punam Kumari (minor)

3.Prakash Yadav (minor)

4.Payal Kumari (minor)

5.Urmila Devi

6.Bhagirath Yadav

7.Satya Narayan Modi .... .... Respondents

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WITH M.A. No.109 of 2018

1.Gudiya Devi

2.Punam Kumari

3.Prakash Yadav

4.Payal Kumari

5.Urmila Devi

6.Bhagirath Yadav .... .... Appellants Versus

1.Satya Narayan Modi

2.M/s National Insurance Company Limited ..... ...... Respondents

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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Appellant : Mr. Pratyush Kumar, Advocate For the Respondent Nos. 1 to 6 : Mr. Nikhil Ranjan, Advocate (in M.A. No.117/2018) For the Appellants : Mr. Nikhil Ranjan, Advocate For the Respondent No.2 : Mr. Pratyush Kumar, Advocate (in M.A. No.109/2018)

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The matters are being taken up through Video Conferencing. Learned counsels for the parties have no objection with it and submitted that audio and video qualities are good.

Order No.08 /Dated: 24th April, 2023 Heard, learned counsel for the Insurance Company, Mr. Pratyush Kumar and learned counsel for the claimants, Mr. Nikhil Ranjan.

The appellant-M/s National Insurance Company Limited has preferred M.A. No.117 of 2018 against the award dated 25.08.2017, passed by the learned Principal District Judge-cum-Presiding Officer, Motor Accident Claim Tribunal, Bokaro in Motor Accident Claim Case No. 122/2015,

whereby the claimants namely, 1.Gudiya Devi, wife of Late Santosh Yadav,

2.Punam Kumari, minor daughter of Late Santosh Yadav, 3.Prakash Yadav, minor son of Late Santosh Yadav, 4.Payal Kumari, minor daughter of Late Santosh Yadav, 5.Urmila Devi, wife of Bhagirath Yadav and 6. Bhagirath Yadav, son of Late Ghupat Yadav, have been awarded compensation to the tune of Rs.10,01,000/-, out of which Rs. 50,000/- has already been paid by the Insurance Company on 22.07.2016, thus, compensation amount to the tune of Rs. 9,51,000/- shall be paid by the Insurance Company along with interest @ 9% per annum from the date of filing of the claim application i.e. 05.12.2015 till payment within four months from the date of passing of the Award, failing which the claimants shall be entitled to receive penal interest @ 11% till the realization of compensation amount. However, learned Tribunal has granted liberty to the Insurance Company to recover the amount in question from the owner of the offending vehicle.

Learned counsel for the Insurance Company, Mr. Pratyush Kumar has submitted, that learned Tribunal has not followed the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Others, reported in (2017) 16 SCC 680 (Para-59.8), whereby under the conventional head, amount of Rs. 70,000/- i.e. Rs. 15,000/- for loss of Estate, Rs. 40,000/- for loss of consortium and Rs.15,000/- for funeral expense is to be paid instead of Rs.4,25,000/-, as granted by the learned Tribunal, as such, the same may be reduced.

Learned counsel for the Insurance Company, Mr. Pratyush Kumar has further submitted, that interest @ 9% per annum is exorbitantly high, it ought to have been @ 7.5% per annum, which is consistent with the judgment passed by the Hon'ble Apex Court in the case of Dharmpal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12 SCC 208, as such, rate of interest may be reduced.

Learned counsel for the claimants, Mr. Nikhil Ranjan has submitted, that admittedly under the conventional head, excess amount has been granted by the learned Tribunal contrary to the judgment passed by the Hon'ble Apex Court in the case of Pranay Sethi (Supra) and the quantum of award has been assailed by the Insurance Company vide M.A. No. 117/2018 but the claimants have also also preferred enhancement appeal against the said impugned award vide M.A. No.109 of 2018.

Learned counsel for the claimants has further submitted, that the ground, on which the enhancement appeal vide M.A. No. 109/2018 has been preferred, is non-consideration of Exhibit-4 and Exhibit-6, which consistently shows the corroborative evidence of C.W.-1 (Milan Yadav) and C.W.-3 (Ramlal Yadav) that the deceased was earning Rs.400/- per day.

Learned counsel for the Insurance Company has opposed the prayer of the claimants on the ground that the learned Tribunal has rightly considered the income of the deceased, as such, this Court may not enhance the same and has prayed that alternatively, this Court may consider the minimum wages of mason with regard to semi-skilled, which was Rs.6,860/- per month for the year 2015.

In reply, learned counsel for the claimants has submitted, that the Hon'ble Apex Court in the case of Chameli Devi & Others vs. Jivrail Mian, reported in 2019 (4) TAX 724 (SC) has considered the income of a deceased Carpenter, in absence of any documentary evidence, to be Rs.5,000/- per month, for an accident took place in the year 2001, but in the present case, which was filed in the year 2015, where the deceased was a mason and there is consistent evidence of C.W.-1 (Milan Yadav) and C.W.-3 (Ram Lal Yadav) supported by corroborative evidence that the income of the deceased was Rs. 400/- per day, therefore, learned Tribunal was not justified in non- consideration of the same, as such, the compensation amount may be enhanced.

Learned counsel for the claimants has further submitted, that learned Tribunal has not considered the future prospect of the deceased, who was doing mason work as considered by the Hon'ble Apex Court in the case of Pranay Sethi (Supra) (Para-59.4), as such, the compensation amount may be enhanced.

Considering the rival submissions of the parties and looking into the facts and circumstances of the case that the deceased, who was a mason, died at the age of 32 years as per the post-mortem report, leaving behind six dependents. There was consistent evidence of C.W.-1 (Milan Yadav) and C.W.-3 (Ram Lal Yadav) supported by corroborative evidence i.e. Exhibit- 4 and Exhibit-6 that deceased was earning Rs.400/- per day. Thus, the total monthly income of deceased comes to Rs.400/- x 26 (excluding four Sundays in a month) = Rs.10,400/-.

This Court considers the computation of compensation afresh on the basis of monthly income of deceased to be Rs.10,400/-, which is as follows:-

Annual Income Rs.10,400/- x 12 = Rs.1,24,800/- per annum Future Prospect @ 40% as the deceased Rs.1,24,800/- + Rs.49,920/-= was below 40 years [National Rs.1,74,720/- Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680 at para 59.4] 1/4th deduction towards personal and Rs.1,74,720/-x 1/4= Rs.43,680/- living expenses [Sarla Verma (Smt) & Ors. DTC & Anr. Vs. reported in (2009) 6 SCC 121 Total Amount Rs.1,74,720/- - Rs.43,680/-= Rs.1,31,040/-

Multiplier of 16 (as the deceased was in Rs.1,31,040/- x 16 = the age group of 31 to 35 years) Sarla Rs.20,96,640/- Verma (Smt) & Ors. DTC & Anr. Vs. reported in (2009) 6 SCC 121 Conventional Head [National Rs.70,000/- [loss of Estate- Insurance Company Ltd. vs. Pranay Rs.15,000/-, loss of consortium- Sethi, reported in (2017) 16 SCC 680 at Rs.40,000/- and funeral expense-

    para 59.8                               Rs.15,000/-
    Total Compensation Amount                  Rs.20,96,640/-+70,000/-=
                                               Rs.21,66,640/-

Thus, total compensation comes to Rs.21,66,640/-. The amount of Rs.50,000/- has already been paid as ad-interim compensation under Section 140 of the MV Act. Thus, compensation comes to Rs.21,66,640/- minus Rs.50,000/-, which comes to Rs.21,16,640/-. As such, the claimants are entitled to get Rs.21,16,640/- along with interest @ 7.5% per annum from the date of filing of claim application till its realization in view of judgment passed by the Hon'ble Apex Court in the case of Dharmpal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12 SCC 208.

The amount already paid by the Insurance Company shall be deducted from the aforesaid amount and the balance amount shall be paid to the claimants in their account of any nationalized bank within a period of 60 days.

The claimants are directed to furnish their account number of any nationalized bank to the learned counsel for the Insurance Company or Insurance Company or the learned Tribunal / learned Executing Court within a period of two weeks, so that the compensation amount be indemnified in their account of any nationalized bank.

Accordingly, both the appeals are hereby disposed of. Pending I.As. in both the miscellaneous appeals stand closed. The statutory amount deposited by the Insurance Company shall be remitted to the learned Tribunal. If the amount is found to be excess, the said amount be remitted to the Insurance Company otherwise the same shall become part of the award.

Let the L.C.R. be sent back.

(Kailash Prasad Deo, J.) R.S./Madhav