The Divisional Manager vs Karun Kumar @ Karun Kumar Ram
2023 Latest Caselaw 1996 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                          M.A. No. 288 of 2018
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The Divisional Manager, The New India Assurance Co. Ltd. ..... Appellant

Versus

1. Karun Kumar @ Karun Kumar Ram, son of late Khedan Ram

2. Kamal Kumar Ram, late son of late Khedan Ram

3. Sonelal Ram, son of late Khedan Ram

4. Arvind Kumar Ram, son late of Khedan Ram

5. Navneet Pandey, son of late Anil Kumar .... .... Respondents

With M.A. No. 596 of 2018

1. Karun Kumar @ Karun Kumar Ram, son of late Khedan Ram

2. Kamal Kumar Ram, son of late Khedan Ram

3. Sonelal Ram, son of late Khedan Ram

4. Arvind Kumar Ram, son of late Khedan Ram .... .... Appellants

Versus

1. The Divisional Manager, The New India Assurance Co. Ltd.

2. Navneet Pandey, son of Anil Kumar .... .... Respondents

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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Appellant (s) : Mr. Devesh Ch. Ghosh, Advocate (In M.A. No.288 of 2018) Mr. Nikhil Ranjan, Advocate (In M.A. No.596 of 2018) For the Respondent(s) : Mr. Nikhil Ranjan, Advocate (In M.A. No.288 of 2018) Mr. Devesh Ch. Ghosh, Advocate (In M.A. No.596 of 2018)

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These matters are 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.10/Dated: 9th May, 2023 Heard, Mr. Devesh Ch. Ghosh, learned counsel appearing on behalf of the New India Assurance Company Limited and Mr. Nikhil Ranjan, learned counsel appearing on behalf of the claimants in both these appeals.

The present Miscellaneous Appeals have been preferred by the New India Assurance Company Limited and the claimants against the award dated 08.02.2018 passed by the learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No. 137 of 2011, whereby the claimants, namely, 1. Karun Kumar @ Karun Kumar

Ram, son of late Khedan Ram, 2. Kamal Kumar Ram, son of late Khedan Ram, 3. Sonelal Ram, son of late Khedan Ram and 4. Arvind Kumar Ram, son of late Khedan Ram have been awarded a compensation to the tune of Rs.3, 54,000/- out of which Rs.50,000/- has already been paid under Section 140 of the Motor Vehicle Act, 1988 and thus the New India Assurance Company Limited was directed to make payment of compensation amount of Rs.3,04,000/- to the claimants along with interest @ 12% per annum from the date of award i.e. on 08.02.2018 till its realization.

Mr. Devesh Ch. Ghosh, learned counsel for the appellant-New India Assurance Company Limited has submitted, that the interest has been awarded from the date of award only because there is a finding recorded by the learned Tribunal, that the delay was caused due to latches of the claimants and, as such, the rate of interest may be reduced to 7.5% per annum from the date of the award.

Learned counsel for the appellant-New India Assurance Company Limited has further submitted that in the unfortunate incident, where three persons have lost their lives including the deceased of the present case on 29.01.2011, three claim cases have been preferred. The present appeal is arising out of Motor Accident Claim Case No. 137 of 2011 at Ranchi and Claim case vide Motor Accident Claim Case No. 33 of 2011 was decided at Simdega, where the Insurance Company was totally exonerated and liability was fastened upon the owner of the offending vehicle and, as such, the impugned award is bad in law and fit to be set aside.

Mr. Nikhil Ranjan, learned counsel for the claimants has vehemently opposed the submissions made by the learned counsel for the New India Assurance Company Limited on the ground that in view of the judgment passed by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Chamundeswari and others reported in 2021 SCC OnLine SC 849 (para 8). The relevant paragraph of the aforesaid judgment may profitably be quoted hereunder:-

"8. It is clear from the evidence on record of PW-1 as well as PW-3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 & PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3, who has given statement before the police, was examined as eye-witness. In view of such

evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellant's counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla, this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh v. Oriental Insurance Company Limited , this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case."

Learned counsel for the claimants has thus submitted, that the plea, which has been taken by the New India Assurance Company Limited that the Court of Simdega has exonerated the Insurance Company is not tenable here, as no such plea was taken by the Insurance Company before the learned Tribunal nor any material has been brought on record nor cross-examination has been made with regard to the violation of terms and conditions of the policy under Section 149(2) of the Motor Vehicles Act, 1988.

Learned counsel for the claimants has further submitted, that so far the interest is concerned, the claimants in a benevolent legislation seeks the interest from the date of filing of the claim application. Though, there is a judgment passed by the Hon'ble Supreme Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation, reported in 2008, JCR 4 79 SC / (2008) 12 SCC 208 (para 14), wherein the interest has been quantified as @ 7.5 % per annum, but there are several judgments, where the interest has been granted @ 12% per annum or 9% per annum depending upon the facts and circumstnaces of the case, as such, interest may be granted from the date of filing of the claim application.

Mr. Nikhil Ranjan, learned counsel for the claimants has further submitted, that so far the enhancement appeal i.e. M.A. No. 596 of 2018 is concerned, the learned Tribunal has wrongly considered the income of the deceased in absence of documentary evidence to be Rs.3000/- per month against the claim of Rs.6000/- per month for an accident which has taken place on 29.01.2011, as the deceased was a bachelor of 19 years and was

doing the business of manufacturing shoes. Learned counsel for the claimants has placed reliance 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 a carpentor, who lost his life in the year 2001 and in absence of any documentary evidence, the Hon'ble Supreme Court has considered the income of a carpentor to be Rs.5000/- per month and the Hon'ble Supreme Court in the case of Chandra @ Chanda @ Chandraram Vs. Mukesh Kumar Yadav reported in (2022) 1 SCC 198 (para 7 to 12), has held 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. Merely because claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs.15000/- per month, as such, in the present case the income of the deceased, who lost his life in the year 2011, being a manufacturer of shoes may be enhanced, for an occurrence, which is after ten years of the case of Chameli Devi (supra), therefore, income of the deceased may be considered to be Rs.6000/- per month.

Mr. Nikhil Ranjan, learned counsel for the claimants has further submitted, that so far future prospect is concerned, 40% is to be paid to the claimants in view of the judgment passed by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680 at para 59.4.

Learned counsel for the claimants has thus submitted, that re- computation of compensation may be done and, accordingly, the award may be enhanced along with interest from the date of filing of the claim application.

After hearing the learned counsel for the parties and looking into the facts and circumstances of these cases, the admitted fact of these cases are that the deceased died in a motor accident on 29.01.2011. The offending vehicle Bolero Jeep bearing registration No.JH-01Z-4104 dashed against the standing Dumper bearing registration No.JH-02L-1954 from its behind and three persons lost their lives. The dependents of the deceased have preferred claim application before the Motor Accident Claims Tribunal, Ranchi vide

Motor Accident Claim Case No. 137 of 2011 and another claim application has been preferred before the Motor Accident Claims Tribunal, Simdega vide Motor Accident Claim Case No. 33 of 2011, which was decided against the owner of the vehicle by exonerating the Insurance Company. But so far the present Miscellaneous Appeals are concerned, these are related with an award granted by the learned Presiding Officer, Motor Vehicle Claims Tribunal, Ranchi. The consideration of the award with regard to Motor Accident Claims Tribunal at Simdega is not relevant for the present claim application in view of the judgment passed by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Chamundeswari and others (supra) as referred above.

So far the interest part as alleged by the Insurance Company is concerned, it is true that the interest should be awarded with a reasoning and it should be consistent for all the Tribunals. This Court has considered the judgment passed by the Hon'ble Supreme Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation (supra), and consistently awarded the interest @ 7.5 % per annum from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act, 1988. But in the present case, since there is a finding recorded by the learned Tribunal, that delay has been caused due to latches of the claimants and the interest has been granted from the date of award dated 08.02.2018, which does not require any interference by this Court. Accordingly, the interest is modified to the extent of 7.5 % per annum from the date of award for the reasoning that the delay has been caused by the claimants as it has been mentioned in the impugned award.

So far the claim case with regard to the income of the deceased is concerned, it is true that there is a consistent evidence with regard to the income of the deceased from manufacturing shoes to the tune of Rs.6000/- per month, but there was no documentary evidence and the learned Tribunal has considered the income of the deceased to be Rs.3000/- per month. In view of the judgment of the Hon'ble Supreme Court in the case of Chameli Devi ((supra) and Chandra @ Chanda @ Chandraram (supra), this Court is of the opininion that the consideration of income of the deceased of Rs.3000/- per month is a meager amount, it should have been Rs.6000/- per month. Since both side have preferred the appeal, this Court has to see the compensation to be just and proper neither a bonanza nor pittance.

Accordingly, the new calculation chart would be as follows :-

   Income                                     Rs.6,000/- per month
   Annual Income                              Rs.6,000/- x 12= Rs.72,000/-
   Future Prospect @ 40% as the deceased      Rs.72,000/- + Rs.28,800/-
   was 21 years [National Insurance           = Rs.1,00,800/-
   Company Ltd. vs. Pranay Sethi, reported
   in (2017) 16 SCC 680 at para 59.4]
   1/2 deduction towards personal and         Rs.1,00,800/- minus Rs.50,400/-
   living expenses [Sarla Verma (Smt) &       = Rs.50,400/-
   others vs. Delhi Transport Corporation
   & another, reported in (2009) 6 SCC 121
   at para 30]
   Multiplier as 18 as deceased was in the    Rs.50,400/- x 18 = Rs.9,07,200/-
   age group of 15 to 20 [Sarla Verma
   (Smt) & others vs. Delhi Transport
   Corporation & another, reported in
   (2009) 6 SCC 121 at para 42]
   Conventional Head [National Insurance      Rs.30,000/-
   Company Ltd. vs. Pranay Sethi, reported    [loss of Estate- Rs.15,000/-, and funeral
   in (2017) 16 SCC 680 at para 59.8]         expense- Rs.15,000/-]

   Total Compensation Amount                  Rs.9,07,200/- + Rs.30,000/- =
                                              Rs.9,37,200/-.

The enhanced amount comes to Rs.9,37,200/-. The amount already paid under Section 140 of the Motor Vehicle Act, 1988 to the tune of Rs.50,000/- shall be deducted and the balance amount shall be indemnified to the claimants along with interest @ 7.5 % per annum from the date of award i.e. 08.02.2018 as there is a delay on the part of the claimants in pursuing the matter as held by the learned Tribunal.

The Insurance Company is directed to indemnify the balance amount to the claimants in their nationalized bank account along with interest @ 7.5 % per annum within 60 days before the learned Tribunal/ Executing Court as the unfortunate accident is of dated 29.01.2011 and more than 12 years have elapsed.

The claimants are directed to furnish their bank account number in the nationalized bank to the learned counsel for the Insurance Company or to the learned Tribunal/ Executing Court within a period of two weeks.

The statutory amount deposited by the Insurance Company at the time of preferring the appeal before this Court shall be remitted to the learned Tribunal / Executing Court and if it is in excess of the awarded amount paid by the Insurance Company, the same shall be returned to the Insurance Company otherwise the same shall be indemnified to the claimants.

With the above directions and observations, M.A. No. 288 of 2018 M.A. No.596 of 2018 are disposed of.

Pending Interlocuty Application, if any, stand closed.

(Kailash Prasad Deo, J.) Madhav/-