Bikramaditya Chaubey @ ... vs Pradeep Kumar Tiwari
2023 Latest Caselaw 1870 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Civil Miscellaneous Appellate Jurisdiction)
                                M.A. No. 313 of 2018
                                        ......

1.Bikramaditya Chaubey @ Bikramadatsh Chaubey

2.Smt. Shib Kumari Devi ...... Appellant Versus

1.Pradeep Kumar Tiwari

2.Amrendrwa Kumar Upadhayay

3.The Oriental Insurance Co. Ltd.

4.The New India Assurance Co. Ltd. . .......Respondents ......

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ......

For the Appellant(s) : Mr. Arvind Kumar Lall, Advocate For the Respondent no.3 : Mr. Prabhat Kumar Sinha, 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.

08/ Dated: 2/05/2023

Heard, learned counsel for the appellant, Mr. Arvind Kumar Lall and learned counsel for the respondent no.3, Mr. Prabhat Kumar Sinha.

Appellants, namely, Bikramaditya Chaubey @ Bikramadatsh Chaubey and Smt. Shib Kumari Devi have preferred this Miscellaneous Appeal for enhancement of the award dated 19.03.2018 passed by learned Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No.125 of 2012 as the learned Tribunal has considered the income on the lower side, wrongly considered the contributory negligence to be 50% and wrongly granted amount of compensation under the conventional head and thus, the amount of compensation may be enhanced.

Learned counsel for the respondent- Oriental Insurance Company Limited, Mr. Prabhat Kumar Sinha has submitted, that the learned Tribunal has rightly considered the income of the deceased and properly considered the evidence of contributory negligence as the deceased, namely, Ashirbad Kumar Chaubey on 16.02.2012 at about 4.45 P.M. was driving Bolero Jeep from Ranchi to Garhwa carrying the passengers while reached near Daltonganj Airport was talking to someone on his mobile and changing chip of mobile. Suddenly offending vehicle Mini Bus 407 bearing Registration No.UP-65H-8527 coming from opposite direction collided against the said Bolero Jeep resulting in death of driver, Ashirbad Kumar Chaubey at the spot, for which, Daltonganj Sadar P.S. Case No.69 of 2012 dated 17.02.2012 has been instituted.

Learned counsel for the respondent- Oriental Insurance Company Limited, Mr. Prabhat Kumar Sinha has further submitted, that compensation has been

granted along with interest @ 9% per annum from the date of admission of the claim application i.e. 06.06.2013.

Learned counsel for the respondent- Oriental Insurance Company Limited, Mr. Prabhat Kumar Sinha has further submitted, that interest has been awarded @ 9% per annum from the date of admission of the claim application which ought to have been 7.5% from the date of filing of the claim application, in view of the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation [2008 (4) JCR 79 (SC)] (para 14).

Learned counsel for the appellant, Mr. Arvind Kumar Lall has submitted, that interest may not be interfered as the same has been granted from the date of admission of the claim application i.e. 06.06.2013 @ 9% per annum, for which, no reason has been assigned by the learned Tribunal. if it is reduced @ 7.5% per annum, it must be granted from the date of filing of the claim application till the date of indemnifying the award.

Learned counsel for the appellant, Mr. Arvind Kumar Lall has further submitted, that consideration of the income by the learned Tribunal is erroneous. The deceased was a graduate and was doing part time job as driver. The claimants have claimed the income of the deceased to be Rs.7,000/- per month for an accident dated 16.02.2012 and has submitted that income of Rs.8,000/- per month is not excess, in view of the judgment passed by the Hon'ble Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC wherein the income of a carpenter has been considered to be Rs.5,000/- per month in absence of any documentary evidence for an incident dated 02.01.2001, whereas the present occurrence is of dated 16.02.2012 after about more than 11 years of that occurrence, as such, consideration of the income of the deceased by the learned Tribunal to be Rs.5,000/- per month is erroneous , therefore, it may be considered to be Rs.7,000/- per month.

Considering the rival submission of the parties and looking into the facts and circumstances of the case, this Court considered that the learned Tribunal has not given any reasoning for consideration of the income of the deceased to be Rs.5,000/- per month against the claim of Rs.7,000/- per month.

This Court considers the judgment passed by the Hon'ble Apex Court as referred above and also considers the oral evidence as well as looking into the background of the deceased, who was a student of B.A. and was doing part time job as a driver and lost his life on 16.02.2012, it would be proper for this Court to consider the income of the deceased to be Rs.6,500/- per month, who lost his life

leaving behind his parents i.e. two dependents.

The new calculation chart would be as follows :-

  Income                                  Rs.6,500/- per month
  Annual Income                           Rs.6,500/- x 12= Rs.78,000/-
  Future Prospect @ 40% as the            Rs.78,000/- + Rs.31,200/-
  deceased was below 40 years             = Rs.1,09,200/-
  [National Insurance Company Ltd.
  vs. Pranay Sethi, reported in (2017)
  16 SCC 680 at para 59.4]
  1/2 deduction towards personal and      Rs.1,09,200/- minus Rs.54,600/- =
  living expenses [Sarla Verma (Smt)      Rs.54,600/-
  & others vs. Delhi Transport
  Corporation & another, reported in
  (2009) 6 SCC 121 at para 30]
  Multiplier as 18 as deceased was in     Rs.54,600/- x 18 = Rs.9,82,800/-
  the age group of 21-25 [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.9,82,800/- +        Rs.70,000/-   =
                                          Rs.10,52,800/-.

Thereafter 50% deduction as contributory negligence in view of the materials available on record that the deceased was himself driving vehicle and was talking to someone on his mobile and changing chip of mobile, as such, this Court is not inclined to interfere with the finding as recorded by the learned Tribunal with respect to 50% contributory negligence.

Thus, total amount of Rs.5,26,400/-.

The same shall be payable along with interest @ 7.5% per annum from the date of filing of the claim application, in view of the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation [2008 (4) JCR 79 (SC)] (para 14).

Accordingly, the instant Miscellaneous Appeal is allowed. The awarded amount along with the interest shall be paid in the Bank account of the claimants. The learned counsel for the claimants is directed to provide the saving account number of the claimants of any nationalized bank to learned counsel for the Insurance Company or to the learned Tribunal / Executing Court within a period of two weeks.

It is expected that since the occurrence is of dated 16.02.2012, the Insurance Company shall indemnify the enhanced amount within a period of 60 days along with interest @ 7.5% per annum from the date of filing of the claim application.

Let the Lower Court Records be sent back to the learned Court below.

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