Jharkhand High Court
Niyati Devi vs Sri Binay Prasad on 27 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 278 of 2018
1. Niyati Devi
2. Gudiya Devi
3. Rina Kumari
4. Raju Kumar
5. Uttam Kumar
6. Ruby Kumari ..... ...... Appellants
Versus
1. Sri Binay Prasad
2. M/s Oriental Insurance Company Limited .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Appellants : Mr. Rajiv Kumar Karan, Advocate
For the Respondent No.2 : Mr. Manish Kumar, Advocate
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The matter is being taken up through Video Conferencing. Learned counsel for the parties
have no objection with it and submitted that audio and video qualities are good.
Order No.07/Dated: 27th April, 2023
Heard, Mr. Rajiv Kumar Karan, learned counsel for the appellants-
claimants and Mr. Manish Kumar, learned counsel for the respondent-Ms.
Oriental Insurance Company Limited.
The appellants-claimants, namely, 1. Niyati Devi, 2. Gudiya Devi,
3. Rina Kumari, 4. Raju Kumar, 5. Uttam Kumar and 6. Ruby Kumari have
preferred this Miscellaneous Appeal for enhancement of the award dated
18.09.2017, passed by the learned District Judge-VIII-cum-MACT, Dhanbad
in Title (M.V.) Claim Case No. 313 of 2014, whereby the learned Tribunal
has awarded compensation to the tune of Rs.5,30,000/- along with interest @
6 % per annum from the date of filing of the claim application i.e. 03.11.2014
till its realization.
Mr. Rajiv Kumar Karan, learned counsel for the appellants-
claimants has submitted that the learned Tribunal has considered the income
of the deceased late Santosh Rabidas on meager side @ Rs.4500/- per month
against the claim of Rs.12,000/- per month.
Learned counsel for the appellants-claimants has relied upon the
judgment passed by the Hon'ble Supreme Court in the case of Chameli Devi
Vs. Jivrail Mian reported in 2019 (4) TAC 724 SC, where the income of the
deceased, who was a carpenter lost his life on 02.01.2001 has been
considered to be Rs.5000/- per month, but in the present case death has
occurred on 13.01.2012, as such, consideration of income of the deceased as
Rs.4500/- is not proper.
Learned counsel for the appellants-claimants has further submitted
that future prospect of the deceased has not been considered in view of the
judgment passed by the Hon'ble Supreme Court in the case of National
Insurance Company Limited Vs. Pranay Shethi reported in (2017) 16 SCC
680, para 59.4.
Learned counsel for the appellants-claimants has further submitted
that under the conventional head meager amount i.e. Rs.13,000/- has been
granted contrary to the judgment passed by the Hon'ble Supreme Court in the
case of National Insurance Company Limited (supra) para 59.8,
whereunder Rs.70,000/- [loss of Estate-Rs.15,000/-, loss of consortium-
Rs.40,000/- and funeral expense-Rs.15,000/-] under conventional head has to
be granted.
Learned counsel for the appellants-claimants has further submitted
that the interest has been awarded @ 6% per annum from the date of filing of
the claim application contrary to the judgment passed by the Hon'ble
Supreme Court in the case of Dharampal and Sons Vs. U.P. State Road
Transport Corporation reported in [2008 (4) JCR 79 (SC)] (para14).
Mr. Manish Kumar, learned counsel appearing on behalf of the
respondent- M/s Oriental Insurance Company Limited has submitted that so
far income of the deceased is concerned, in absence of any documentary
evidence, the learned Tribunal has rightly considered the income of shoes
maker as Rs.4500/- per month.
Learned counsel for the respondent-Insurance Company has further
submitted that though the right of recovery has been granted in favour of the
Insurance Company to recover the compensation amount from the owner of
the vehicle after indemnifying the award but the owner even after notice has
not appeared before this Court. Learned counsel for the Insurance Company
has further submitted that in terms of order dated 12.04.2021, notice has been
issued upon the respondent No.1, namely, Sri Bijay Prasad, owner of the
offending vehicle bearing registration No. JH-10AA-2342, which was validly
served upon him on 06.09.2021 and even the case was adjourned but he did
not appear on 16.08.2022 and even today, as such, this Court may not
interfere with the right given in favour of the Insurance Company to recover
the same.
After hearing the learned counsel for the parties and on the basis of
materials available on record, the issue which has been agitated before this
Court are with regard to consideration of income of the shoes maker, in
absence of any documentary evidence. Against the claim of Rs.12,000/- per
month, the learned Tribunal has considered to be Rs.4500/- per month.
This Court has considered the judgment passed by the Hon'ble
Supreme Court in the case of Chameli Devi (supra), where for an incidence
dated 02.01.2001, in absence of any documentary evidence, the Hon'ble
Supreme Court has considered the income of a carpenter to be Rs.5000/-. In
the present case, death of late Santosh Rabidas has occurred on 13.01.2012
after lapse of 11 years, as such, this Court is of the opinion that in absence of
any documentary evidence, the income of the shoes maker ought to have
been 7500/- per month.
Accordingly, the new calculation chart would be as follows :-
Income Rs.7,500/- per month
Annual Income Rs.7,500/- x 12= Rs.90,000/-
Future Prospect @ 25% as the Rs.90,000/- + Rs.22,500/-
deceased was 44 years [National = Rs.1,12,500/-
Insurance Company Ltd. vs.
Pranay Sethi, reported in (2017) 16
SCC 680 at para 59.4]
1/4 deduction towards personal and Rs.1,12,500/- minus Rs.28,125/- =
living expenses [Sarla Verma (Smt) Rs.84,375/-
& others vs. Delhi Transport
Corporation & another, reported in
(2009) 6 SCC 121 at para 30]
Multiplier as 14 as deceased was in Rs.84,375/- x 14 = Rs.11,81,250/-
the age group of 41-45 [Sarla
Verma (Smt) & others vs. Delhi
Transport Corporation & another,
reported in (2009) 6 SCC 121 at
para 42]
Conventional Head [National Rs.70,000/-
Insurance Company Ltd. vs. [loss of Estate- Rs.15,000/-, loss of
Pranay Sethi, reported in (2017) 16 consortium- Rs.40,000/- and funeral
expense- Rs.15,000/-]
SCC 680 at para 59.8]
Total Compensation Amount Rs.11,81,250/- + Rs.70,000/- =
Rs.12,51,250/-.
Mr. Manish Kumar, learned counsel appearing on behalf of the
respondent- M/s Oriental Insurance Company Limited has submitted that
awarded amount of Rs.5,30,000/- along with interest @ 6% per annum has
already been indemnified to the claimants, which Mr. Rajiv Kumar Karan,
learned counsel for the appellants-claimants also accepts. Thus, the enhanced
amount of Rs.12,51,250/- - 5,30,000 i.e. remaining Rs.7,21,250/- is to be paid
to the claimants but interest shall be paid @ Rs.7.5% on enhanced amount of
Rs.12,51,250/- till payment of Rs.5,30,000/- and, thereafter, on balance
amount of Rs.7,21,250/-, the interest @ 7.5 % shall be calculated.
It is expected that since unfortunate accident took place on
13.01.2012, as such, the Insurance Company shall indemnify the balance
amount of the award enhanced by this Court with interest @ 7.5 % within a
period of eight weeks from today.
So far the right of recovery, which has been granted in favour of the
Insurance Company to recover the same from the owner of the vehicle,
namely, Sri Bijay Prasad as awarded by the learned Tribunal shall remain
intact.
Accordingly, the instant Miscellaneous Appeal is allowed.
Let the Lower Court Records be sent back to the learned Court
below.
(Kailash Prasad Deo, J.)
Madhav/-
