Khageshwari Devi vs Tata Aig General Insurance ...
2023 Latest Caselaw 1967 Jhar

                        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     (Civil Miscellaneous Appellate Jurisdiction)
                              M.A. No. 707 of 2018
                                     ......

1.Khageshwari Devi

2.Ajay Kumar Mahto

3.Khushboo Kumari ...... Appellants Versus

1.Tata AIG General Insurance Company Limited

2.Binod Singh

3.Ravindra Kumar Yadav . .......Respondents .....

      CORAM:            HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                                      ......
      For the Appellants                                   : Mr. Saibal Kumar Laik, Advocate
                                                             Mr. Kumar Gaurav, Advocate
      For the Respondent no.1                              : Mr. Niraj Nayan Mishra, Advocate
                                         -----

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.

05/ Dated: 08/05/2023

Heard, learned counsel, Mr. Saibal Kumar Laik assisted by learned counsel for the appellants, Mr. Kumar Gaurav and learned counsel for the respondent no.1, Mr. Niraj Nayan Mishra.

Learned counsel, Mr. Saibal Kumar Laik assisted by learned counsel for the appellants, Mr. Kumar Gaurav has submitted, that in terms of order dated 24.09.2021 passed by a Co-ordinate Bench of this Court, fresh notices were issued upon the respondent No.2, namely, Binod Singh, S/o Kapildeo Singh, R/o Hill View Colony, Line No.2 A, Near Kids World School, Police Station- MGM College, Dimna Road, Post- Mango, Jamshedpur, District- East Singhbhum, State- Jharkhand, PIN- 831012, who is the owner of the offending vehicle Trailor bearing Registration No.PB-13S-9014 and respondent no.3, Ravindra Kumar Yadav, S/o Baleshwar Prasad Yadav, R/o Tariyasarai, Post- Bhilai Pahari, P.S. MGM College, Dimna Road, Mango, Jamshedpur, District- East Singhbhum Jharkhand PIN-831012 and as per service report notice upon respondent no.2 was returned with an endorsement that house was found to be closed and notice was hanged on the door. So far notice upon respondent no.3 is concerned, his sister has received the notice, but respondent no.2 and respondent no.3 have not appeared before this Court.

Learned counsel for the appellants has submitted, that quantum of award has been indemnified by the Insurance Company, namely, Tata AIG

General Insurance Company Limited, but it is an appeal for enhancement. Learned counsel for the appellants has further submitted that there is no question for right of recovery in favour of the Insurance Company. It is only against the Insurance Company, who has contested the same, as such, this Court may proceed in the matter.

Learned counsel for the respondent no.1, Mr. Niraj Nayan Mishra has no objection.

Learned counsel, Mr. Saibal Kumar Laik assisted by learned counsel for the appellants, Mr. Kumar Gaurav has submitted, that appellants, namely, 1.Khageshwari Devi, 2.Ajay Kumar Mahto and 3.Khushboo Kumari have preferred this Miscellaneous Appeal against the award dated 25.08.2018 passed by learned District Judge, 1st-cum- Presiding Officer, Motor Accidents Claims Tribunal, Bokaro in Motor Accidents Claim Case No.80 of 2014, whereby four claimants have been awarded compensation to the tune of Rs.8,80,000/- to be indemnified by the TATA AIG General Insurance Company Limited though no right of recovery has been granted in favour of the Insurance Company and during pendency of the appeal the claimant no.4 -Gondo Mahto has died, as such, three appellants are before this Court, who were claimants before the learned Tribunal.

Learned counsel, Mr. Saibal Kumar Laik assisted by learned counsel for the appellants, Mr. Kumar Gaurav has further submitted, that the accident took place on 01.05.2014 when the offending vehicle (Trailor) bearing Registration No.PB-13S-9014 dashed all five standing trucks bearing Registration Nos.JH-02F-7722, JH 09V-4182, JH 09D-7105, JH-09F-1734 and JH-0S-6393 the deceased, Ramlal Mahto, the driver of Truck bearing registration No. JH-02F-7722 has lost his life whereas the other drivers also sustain injury.

Learned counsel, Mr. Saibal Kumar Laik assisted by learned counsel for the appellants, Mr. Kumar Gaurav has further submitted, that the award has been indemnified, but the income of the deceased has been taken on the lower side and future prospect of the deceased aged about 39 years as well as interest on the compensation amount have not been granted by the learned Tribunal.

Learned counsel, Mr. Saibal Kumar Laik assisted by learned counsel for the appellants, Mr. Kumar Gaurav has further submitted, that rationality which has been taken by the learned Tribunal while considering the income is on the basis of the notification issued by Government of Jharkhand with respect to the minimum wages of road roller driver equivalent to heavy motor vehicle driver of truck or dumper at the rate of Rs.222/- per day, which comes to Rs.5,770/- after rounding off it comes to Rs.6,000/- per month. The notification vide S.O. No.328 dated 01.04.2011 is not applicable in case of the deceased 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 accident dated 02.01.2001, whereas the present occurrence is of dated 01.05.2014. The Hon'ble Apex Court in the case of Chandra @ Chanda @ Chandraram vs. Mukesh Kumar Yadav, reported in 2022 (1) SCC 198, wherein it has been held at paras 7 to 12, that in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality.

Learned counsel for the appellants has thus submitted, that in view of the judgment passed by the Hon'ble Apex Court, the learned Tribunal ought to have taken the fact of the case, that driver in the year, 2014 was not working without having income of less than Rs.11,000/-, as such, the amount may be enhanced.

Learned counsel for the respondent no.1, Mr. Niraj Nayan Mishra has opposed the prayer and submitted, that so far income of the deceased is concerned, the learned Tribunal has given reasoning regarding notification issued by the Government of Jharkhand in the year 2011 at page no.11 of the impugned award, but he has admitted that future prospect has not been added nor interest has been granted, as such, this Court may not interfere with the income of the deceased, as the same is based upon the notification issued by the Government of Jharkhand.

Considering the rival submissions of the parties and looking into the facts and circumstances of the case, three questions are involved in the present Miscellaneous Appeal:- (i) What should be the income of the

deceased driver, who lost his life on 01.05.2014, in absence of any documentary evidence ? (ii) What should be the future prospect of the driver, who lost his life at the age of 39 years, leaving behind his widow, son, daughter and old father ? and (iii) What should be interest on the award/compensation granted by the learned Tribunal ?

This Court has considered the submissions made on behalf of the appellants as well as learned counsel for the Tata AIG General Insurance Company. The learned counsel for the respondent no.1, Mr. Niraj Nayan Mishra has relied upon the notification issued by the Government of Jharkahnd contained in S.O. No.328 dated 01.04.2011, which is sheet-anchor for computation of income by the learned Tribunal and thus, the learned counsel for the Insurance Company has submitted that in absence of further notification, which is issued by the Government, the appellants cannot be awarded more than that what the learned Tribunal has granted on the basis of the notification issued by the Government of Jharkhand of the year 2011.

Learned counsel for the appellants, Mr. Saibal Kumar Laik has submitted that the notification is with regard to the Government's employment to a person and the amount is to be paid to the person, if he works on contract or temporary basis in Government organization and this notification is of dated 01.04.2011, which is more than 3 years back. If the Government has issued any notification in the year, 2014, it will never absolve the Insurance Company from the real liability, which accrues in a motor accident cases because of reality.

Learned counsel for the appellants, Mr. Saibal Kumar Laik has further submitted, that reality cannot be ignored as it has been held by the Hon'ble Apex Court in the case of Chandra @ Chanda @ Chandraram (Supra) and has submitted that, prior to this, in the case of Chameli Devi (Supra), the Hon'ble Supreme Court has considered the income of a carpenter, who lost his life in the year, 2001 in absence of any documentary evidence to be Rs.5,000/- per month whereas the present occurrence is of dated 01.05.2014. At that time no driver was engaged in less than Rs.12,000/- per month for a heavy vehicle. Apart from that the charges for his meal everyday was to be paid by the owner, as such, the income of the deceased driver cannot be less

than Rs.11,000/- per month, as such, amount may be enhanced.

These two contrary views have been considered by this Court and the Court has examined the record and has found that S.O. No.328 dated 01.04.2011 is not rational consideration by the learned Tribunal in absence of any notification of the year, 2014. This consideration by the learned Tribunal is also not realistic and practical for the State of Jharkhand, where a driver of car is earning Rs.14,000/- per month. It is not rational for the learned Tribunal to consider the income of a driver, who is driving a heavy vehicle on 01.05.2014. The learned Tribunal ought to have taken view that what was the salary paid to the driver of the Civil Court or private driver engaged by other persons, accordingly, this Court is of the opinion that meager amount has been considered by the learned Tribunal, which is to be enhanced Rs.11,000/- per month, in view of both the judgment passed by the Hon'ble Apex Court in the case of Chandra @ Chanda @ Chandraram (Supra) as well as Chameli Devi vs. Jivrail Mian (supra) the amount is enhanced to Rs.11,000/- per month.

The new calculation chart would be as follows :-

  Income                                 Rs.11,000/- per month
  Annual Income                          Rs.11,000/- x 12= Rs.1,32,000/-
                                         income of deceased not within
                                         taxable limit.
  Future Prospect @ 40% as the           Rs.1,32,000/- + Rs.52,800/-
  deceased was below 40 years            = Rs.1,84,800/-
  [National Insurance Company Ltd.
  vs. Pranay Sethi, reported in (2017)
  16 SCC 680 at para 59.4]
  1/4 deduction towards personal and     Rs.1,84,800/- minus Rs.46,200/- =
  living expenses [Sarla Verma (Smt)     Rs.1,38,600/-
  & others vs. Delhi Transport
  Corporation & another, reported in
  (2009) 6 SCC 121 at para 30]
  Multiplier as 15 as deceased was in    Rs.1,38,600/- x 15 = Rs.20,79,000/-
  the age group of 36-40 [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.20,79,000/- +     Rs.70,000/-      =
                                         Rs.21,49,000/-.

Thus, total amount of Rs.21,49,000/- 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 Hon'ble Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation [2008 (4) JCR 79 (SC)] (para 14), where the interest for a long period has been quantified by the Hon'ble Supreme Court, which shall be applicable from the the date of filing of the claim application under Section 171 of the Motor Vehicle Act, 1988, if no reasoning has been assigned by the learned Tribunal with regard to delay, as such, under Section 171 of the Motor Vehicle Act, 1988, the interest has to be paid from the date of filing of the claim application.

Accordingly, the instant Miscellaneous Appeal is allowed. The amount already paid to the tune of Rs.8,80,000/- shall be deducted from this enhanced amount as enhanced by this Court and it is expected that the Insurance Company- Tata AIG General Insurance Company Limited shall indemnify the rest amount within reasonable time as the accident is dated 01.05.2014.

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