Jharkhand High Court
Mina Kumari @ Mina Devi & Ors vs Mr. Alok Mandal & Ors on 19 May, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No.421 of 2018
......
Mina Kumari @ Mina Devi & Ors. ..... ...... Appellants
Versus
Mr. Alok Mandal & Ors. .... .... Respondents
------
------
CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
-------
For the Appellants : Mr. Rajiv Kumar Karan, Advocate
For the Respondent No.2 : Mr. Uday Choudhary, Advocate
--------
The matter is 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.06 /Dated: 19th May, 2023
Heard, learned counsel Mr. Rajiv Kumar Karan on instruction of learned
counsel for the appellants, Mr. Mukesh Bihari Lal and learned counsel for the
United India Insurance Company Limited, Mr. Uday Choudhary.
The appellants/claimants- Mina Kumari @ Mina Devi, W/o Late Gobind
Hembram, Bishwanath Hembram (minor), S/o Late Gobind Hembram and Priya
Kumari (minor), D/o Late Gobind Hembram, all R/o Village- Mirzapur, P.O.-
Mirzapur, P.S.-Baliapur, District- Dhanbad, Jharkhand, have preferred this
appeal for the enhancement of the award dated 30.07.2016 passed by learned
District Judge-IV-Cum-MACT, Dhanbad in Title (M.V.) Case No.113 of 2015,
whereby the claimants have been awarded compensation to the tune of
Rs.4,41,500/-, out of which Rs.50,000/- has already been paid to the claimants
under Section 140 of the MV Act, thus amount of Rs.3,91,500/- along with
interest @ 6 % per annum to be paid to the claimants from the date of admission
of the suit i.e. 04.08.2015 till the award is indemnified.
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has
submitted, that there was a delay of 603 days in preferring the appeal and for
condonation of the same, I.A. No.8003 of 2018 was filed, which has already
been allowed by this Court in terms of order dated 03.05.2023 by condoning the
delay of 603 days and as such the appeal may be heard on merits.
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has further
submitted, that the deceased Gobind Hembram died in a motor accident on
30.08.2011 dashed by offending truck bearing Registration No.WB-37-5550,
which was insured before the United India Insurance Company Ltd. vide policy
no.210504/31/10/02/00004917 valid for the period from 18.12.2010 to
17.12.2011, as such, on the alleged date of accident i.e., 30.08.2011 the vehicle
was duly insured before the United India Insurance Company Ltd.
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has further
submitted, that the enhancement appeal has been filed by the
claimants/appellants on the ground that income of the deceased- Gobind
Hembram, working as a Raj Mistri was claimed to be Rs.7,500/- per month, but
the learned Tribunal in absence of documentary evidence has considered it to be
Rs.3,000/- per month without any basis.
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has further
submitted, that the Hon'ble Apex Court in the case of Chameli Devi & Others
vs. Jivrail Mian, reported in 2019 (4) TAC 724 (SC) has considered the income
of a deceased Carpenter, in absence of any documentary evidence, as Rs.5,000/-
per month, for an accident took place in the year 2001, but in the present case,
accident is of the year 2011, where the deceased was a Raj Mistri and the
income of the deceased was claimed to be Rs.7500/- per month, which is not an
excessive amount, even if the price cost is compared, as such, income of the
deceased may be enhanced.
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has further
submitted, that future prospect has also not been considered by the learned
Tribunal as the deceased died at the age of 35 years leaving behind his wife and
two minor children in view of the Judgment passed by National Insurance
Company Ltd. Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, para-
59.4.
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has further
submitted, that under the conventional head meager amount i.e., Rs.9,500/- has
been given by the learned Tribunal while in view of 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, para-59.8 under the
conventional head Rs.70,000/- (Rs.15,000 as loss of estate, Rs.40,000/- as loss
of consortium and Rs.15,000/- as funeral expenses) ought to have been given.
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has further
submitted, that interest @ 6 % per annum has been granted from the date of
admission of the suit i.e., 04.08.2015 till the date of realization, which is
contrary to the judgment passed by the Hon'ble Supreme Court in the case of
Dharmpal and Sons Vs. U.P. State Road Transport Corporation reported in
(2008) 12 SCC 208 and also contrary to the provision of Section 171 of the
Motor Vehicles Act, 1988. In view of Section 171 of the Motor Vehicles Act,
1988, the interest should have been granted from the date of filing of the claim
application till the date of indemnifying the award, but without assigning any
reason, the learned Tribunal has granted the same from the date of admission of
claim application. Further, interest @ 7.5 % per annum should have been
granted in view of the judgment passed by the Hon'ble Supreme Court in the
case of Dharmpal and Sons (supra) paras-10, 13 and 14, which may
profitably be quoted hereunder:-
10. Interest is compensation for forbearance or detention of money, which
ought to have been paid to the claimant. No rate of interest is fixed under Section
171 of the Act and the duty has been bestowed upon the court to determine such
rate of interest. In order to determine such rate we may refer to the observations
made by this Court over the years. In the year 2001 in Kaushnuma Begum v. New
India Assurance Co. Ltd. [(2001) 2 SCC 9 : 2001 SCC (Cri) 268] , on the question
of the rate of interest to be awarded it was held that earlier, 12% was found to be
the reasonable rate of simple interest but with a change in economy and the policy
of Reserve Bank of India the interest rate has been lowered and the nationalised
banks are now granting interest @ 9% on fixed deposits for one year. Accordingly,
interest @ 9% was awarded in the said case. We may at this stage also refer to the
following observations of Their Lordships in the aforesaid decision which are
relevant to the present case : (SCC p. 16, para 24)
"24. Now, we have to fix up the rate of interest. Section 171 of the MV Act
empowers the Tribunal to direct that 'in addition to the amount of compensation
simple interest shall also be paid at such rate and from such date not earlier than
the date of making the claim as may be specified in this behalf'. Earlier, 12% was
found to be the reasonable rate of simple interest. With a change in economy and
the policy of Reserve Bank of India the interest rate has been lowered. The
nationalised banks are now granting interest at the rate of 9% on fixed deposits
for one year. We, therefore, direct that the compensation amount fixed
hereinbefore shall bear interest at the rate of 9% per annum from the date of the
claim made by the appellants."
13. However, in the year 2005 in T.N. State Transport Corpn. Ltd. v. S.
Rajapriya [(2005) 6 SCC 236 : 2005 SCC (Cri) 1436] this Court again taking
note of the then prevailing rate of interest on bank deposits directed for lowering
the rate of interest fixed by the Tribunal at 9% per annum and altered the same to
7.5% per annum.
14. In the backdrop of the aforesaid legal position, we may now examine the facts
of the present case. The accident in the present case had taken place on 1-9-2004
and the Tribunal had passed the award on 18-5-2005. Rate at which the interest is
to be awarded would normally depend upon the bank rate prevailing at the
relevant time. Since in T.N. State Transport Corpn. Ltd. [(2005) 6 SCC 236 : 2005
SCC (Cri) 1436] decided in the month of April 2005, the prevailing rate of
interest on bank deposits was found and held to be 7.5% per annum, we consider
it appropriate to award the same rate of interest, as the same was the prevailing
rate of interest on the date of the passing of the award i.e. 18-5-2005 in the
present case. Consequently, we hold that the appellants would be entitled to be
paid interest at the rate of 7.5% from the date of application till the date of
payment.
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has thus
submitted, that the amount already indemnified to the appellants on 28.08.2017
by the Insurance Company may be enhanced, so that in a benevolent legislation
the poor sufferer Mina Kumari @ Mina Devi (window), Bishwanath Hembram
(minor) and Priya Kumari (minor) may not suffer financial loss.
Learned counsel for the respondent No.2/ United India Insurance
Company Ltd., Mr. Uday Choudhary has submitted, that it is a stale matter. The
date of accident is 30.08.2011 and the award has been indemnified on
28.08.2017 and thereafter the appeal has been preferred on 13.07.2018 with
delay of 603 days which has already been condoned vide order dated
03.05.2023 passed by this Court. Though the delay has been condoned but
reopening of such issues because of subsequent judgment passed by the Hon'ble
Supreme Court in the case of Pranay Sethi & Ors. (supra) which has been
delivered on 31.10.2017 is not appropriate in the present facts and
circumstances of the case and as such the amount may not be enhanced.
So far with regard to income of the deceased as considered by the learned
Tribunal is concerned, learned counsel for the respondent no.2/ United India
Insurance Company Limited has submitted, that in view of the Government
Notification of the minimum wages for the year 2011 to be Rs.127/- per day and
considering 26 working days in a month, income of the deceased has been
considered by the learned Tribunal, which may not be enhanced.
Learned counsel for the respondent No.2/ United India Insurance
Company Ltd., Mr. Uday Choudhary has fairly submitted that no appeal has
been preferred by the owner of the offending vehicle against recovery of the
awarded amount after indemnifying the same to the claimants nor any cross
objection has been filed by respondent in this appeal by the United India
Insurance Company.
In reply, learned counsel for the appellants, Mr. Rajiv Kumar Karan has
relied upon the judgment passed by the Hon'ble Supreme Court in the case of
Chandra v. Mukesh Kumar Yadav, reported in (2022) 1 SCC 198. Para -9 of
which may profitably be quoted hereunder:-
9. ..................... In absence of salary certificate the minimum wage
notification can be a yardstick but at the same time cannot be an absolute one to
fix the income of the deceased. 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 the 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.................................
Learned counsel for the appellants, Mr. Rajiv Kumar Karan has
submitted, that Rs.127/- per day was minimum wages fixed by the Government
for a Government work, but nowhere the Raj Mistri was available in the year
2011 at that wages rather it was more than the wages claimed by the claimants,
as such, the amount may be enhanced.
Learned counsel for the respondent No.2/ United India Insurance
Company Ltd., Mr. Uday Choudhary has further submitted, that though the
amount has been indemnified by the Insurance Company to the claimants as
awarded by the learned Tribunal on 30.07.2016 in Title (M.V.) Case No.113 of
2015 passed by learned District Judge-IV Cum-MACT, Dhanbad but there was
complete violation of terms and conditions of the policy by the owner of the
offending truck bearing Registration No. WB-37-5550 which has not been
adjudicated though learned counsel has fairly submitted, that no appeal has been
preferred with respect to the same by the United India Insurance Company
Limited before this Court against the owner of the offending vehicle nor any
cross objection has been filed in the present appeal preferred by the claimants
and as such this Court may pass necessary direction in this regard.
After hearing learned counsel for the parties and perusal of the materials
available on record as well as impugned award, the brief facts of the case which
are not in dispute. The deceased Gobind Hembram was coming on 30.08.2011
on his motorcycle from Sagar Petrol Pump situated at Tetulia G.T. Road, Nirsa
and going to his residence Baliapur. In the meantime a truck bearing
Registration No.WB-37-5550 from Nirsa side driven by the driver very rashly
and negligently, dashed his motorcycle. He received grievous injury and died on
the spot on 30.08.2011. The age of the deceased Gobind Hembram was 35
years. He left behind Mina Kumari @ Mina Devi (window), Bishwanath
Hembram (minor) and Priya Kumari (minor). The owner of the offending
vehicle has claimed that the offending truck was insured before the United India
Insurance Company Limited vide policy no.210504/31/10/02/00004917 valid
for the period from 18.12.2010 to 17.12.2011. There is no dispute that the
vehicle was not insured at the time of accident.
The Insurance Company has taken a plea before this Court with regard to
the violation of terms and conditions of the policy by the insured owner of the
offending vehicle as the permit was not available, but in compliance of order
dated 09.12.2019, office has categorically mentioned that there is no analogous
appeal against the impugned award. As such, this issue is beyond the scope of
Miscellaneous Appeal preferred by the claimants, accordingly such plea of the
Insurance Company is hereby rejected.
The bone of contention between the parties is whether the amount of
compensation is just or it is a pittance. In absence of any documentary evidence
income of the deceased has been considered by the learned Tribunal to be
Rs.3,000/- per month while as per the case of the claimants the deceased was
admittedly a Raj Mistri earning Rs.7,500/- per month for sustaining his family,
which has caused financial loss to the dependents of the deceased after demise
of Gobind Hembram on 30.08.2011. The future prospect of the deceased, who
was 35 years old has not been considered in view of law laid down by the
Hon'ble Supreme Court in the case of Pranay Sethi (Supra) and the interest has
been awarded on the lower side from the date of admission of claim application
without assigning any reason against the claimants for causing delay.
This Court after perusal of the record, impugned award as well the
judgment relied by the learned counsel for the appellants in the cases of
Chameli Devi & Others (supra) and Chandra (supra), the income of the
deceased, as considered by the learned Tribunal to be Rs.3,000/- per month
against the claim of Rs.7,500/- per month, is hereby enhanced to be Rs.6,000/-
per month as the accident is of dated 30.08.2011 as in both matter there was no
documentary evidence regarding income of deceased but in the case of Chameli
Devi & Ors. (supra), deceased was a carpenter who lost life in 2001 whereas in
present case deceased was Raj Mistri who has lost his life in 2011.
This Court has considered that accident in Pranay Sethi's case which took
place prior to 2011 but enhancement was made by Hon'ble Supreme Court in the
year 2017, as such, this Court is of the opinion that compensation must be Just
and Proper and not a bonanza or pittance. This Court considers the computation
of compensation afresh on the basis of monthly income of deceased to be
Rs.6,000/-, per month which is as follows:-
Annual Income Rs..6,000/- x 12 = Rs.72,000/- per
annum
Future Prospect @ 40% as the Rs.72,000/- + Rs.28,800/-=
deceased was below 40 years Rs.1,00,800/-
[National Insurance Company Ltd.
Vs. Pranay Sethi, reported in (2017)
16 SCC 680 at para 59.4]
1/3rd deduction towards personal and Rs.1,00,800/-x 1/3= Rs.33,600/-
living expenses [Sarla Verma (Smt) &
Ors. DTC & Anr. Vs. reported in
(2009) 6 SCC 121 (para-30)
Multiplier of 16 (as the deceased was Rs.67,200/- (Rs.1,00,800/- -
in the age group of 31 to 35 years) Rs.33,6000) x 16 = 10,75,200/-
Sarla Verma (Smt) & Ors. DTC &
Anr. Vs. reported in (2009) 6 SCC 121
(para-42)
Conventional Head [National Rs.15,000/-(loss of Estate) Rs.40,000/-
Insurance Company Ltd. vs. Pranay (loss of consortium) and Rs.15,000/-
Sethi, reported in (2017) 16 SCC 680 (funeral expense) =Rs. 70,000/-
at para 59.8
Total Compensation Amount Rs.10,75,200/-+70,000/-=
Rs.11,45,200/-
Thus, total compensation comes to Rs.11,45,200/-. 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.11,45,200/- minus
Rs.50,000/-, which comes to Rs.10,95,200/-. As such, the claimants are entitled
to get Rs.10,95,200/- 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 (Supra) and in view of
Section 171 of the Motor Vehicle Act, 1988.
In the result, the appeal is allowed as stated above.
It is expected that United India Insurance Company shall indemnify the
enhanced amount to the claimants within a reasonable time, as the accident is of
the year 2011 after deducting the amount already indemnified by the
Insurance Company.
(Kailash Prasad Deo, J.)
Rohit/-
