Jharkhand High Court
The National Insurance Company Limited vs Archana Bharti on 2 September, 2024
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.74 of 2020
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The National Insurance Company Limited, Hazaribagh Branch Office, at
V.R Complex, Near Indrapuri, Chowk, Pagmil Road, Hazaribagh, P.O., P.S
& District-Hazaribagh 825301, Jharkhand, represented through its Assistant
Manager, Ranchi .... .... Appellant(s)
-Versus-
1. Archana Bharti, w/o Late Binod Prasad
2. Vani Prasad,d/o Late Binod Prasad
3. Veer Pratap, s/o Late Binod Prasad
Claimants/respondent Nos.2 & 3 are minors, and duly represented through
their mother and natural guardian Archana Bharti (Claimant/Respondent
No.1)
All are residents of Road No.1 (Rani Bagicha), Kanthi Tand, P.O. & P.S.
Ratu, District-Ranchi, Jharkhand. At presently resident of C/o Shri Rajendra
Prasad at Patha Chatti, Near Hanuman Mandir (Behind State Bank of India,
Bangalipara, Nirsa), P.O. & P.S. Nirsa, District-Dhanbad (Jharkhand)
4 Mr. Wasim Ahmad Khan, S/o Abdul Shamim, Resident of Village-
Hashminga Colony, Ward No.1, Pagmil, Hazaribagh, P.O. P.S & District-
Hazaribagh, 825301 .... .... Respondent(s)
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant(s) : Mr. Pratyush Kumar, Adv.
For the Respondent Nos.1 to 3 : Mr. Birendra Kumar, Adv.
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nd
08/Dated: 02 September, 2024
1. Heard the parties.
2. The present miscellaneous appeal has been field by the appellant-
Insurance Company against the Award dated 20.11.2019 passed by learned
District Judge-XIV-cum-Additional Motor Accident Claim Tribunal,
Dhanbad, in Motor Accident Claim Case No.173 of 2017.
3. It appears that the accident has taken place on 25.11.2016. The
offending vehicle was a 'Bus' having registration No.JH02Y-4727. The
other factors are not in dispute.
4. Two points have been raised by the learned counsel for the appellant-
Insurance Company in the present miscellaneous appeal. Firstly, with regard
to issue No.VII, which reads as under:-
"Are the claimants entitled for compensation and if yes, what should be the
amount of compensation and who shall satisfy the award?"
5. In this regard, learned counsel for the appellant-Insurance Company
has relied upon the judgments passed by the Hon'ble Apex Court in the case
of State of Haryana & Anr. vrs. Jasbir Kaur & Ors [(2003) 7 SCC 484], in
the case of New India Assurance Company Ltd vrs. Yogesh Devi & Ors
[2012 (3) SCC 613] and the judgment passed by the Hon'ble Karnataka
High Court in the case of B. Parmila & Ors. vrs. Riyaz Ahmed & Ors [ILR
2001 KAR 1443 and it has been submitted that the loss of income has to be
there i.e, contribution through the effort of the deceased in earning. The
proportion of the effort vis-à-vis income has to be seen when there is a fixed
income from any property or business.
6. Further, it has been submitted that in the present case, there is a
jewellery shop and three brothers are running the said shop. Virtually, there
is no contribution of the deceased rather that is a fixed income from the shop
and as such, there is no loss to the family. It is a well settled law that the
claim is payable only in the case of loss of earning.
7. The another issue has been raised that 9% interest has been given,
which is excessive, it should be 7.5%.
8. On the other hand, learned counsel for the claimants has supported the
Award and it has been submitted that the loss of income is not only the
criteria rather loss of consortium, emotion, comfort etc., are also relevant
factor in Awarded amount.
9. Further, it has been submitted that in the present case, there is a joint
family business and every such business require customers. Each and every
member have made contribution regarding satisfaction of customers and in
smooth running of business. Thus, it cannot be said that there is no
contribution of deceased so far as the earning capacity of the shop is
concerned.
10. Further, it has been submitted that this point has neither been raised,
nor argued before the Court below/Tribunal and as such, it has not been
discussed in the findings portion of the said Award. It has further been
submitted that right to recovery has already been granted to the appellant-
Insurance Company.
11. Having heard learned counsel for the parties and from perusal of the
record, so far as the quantum of income is concerned, it appears that there is
sufficient evidence i.e, the Income Tax Return, which is the basis of
deciding the quantum of income.
12. So far as the contribution of the deceased is concerned, although there
is a joint family business, but this factor has not been discussed, while
deciding the issue. It can be assumed that this fact has not been argued by
the appellant-Insurance Company before the Court below/Tribunal. Every
business requires skill and there is no fixed income like a rent or an income
from agricultural work. The business is competition and it has to be
attractive by providing good services, behaviour patterns, etc.
13. In view of the above discussion, I find no reason to interfere with the
Award. Accordingly, it is hereby, upheld.
14. So far as the interest part is concerned, the interest of 9% is too
excessive and as such, it is hereby, reduced to 7.5% per annum.
15. With above modification of the Award, the present miscellaneous
appeal stands disposed of.
16. The statutory amount shall be remitted back to the Tribunal for release
in favour of the claimant or the Insurance Company depending upon the
factual matrix of the case.
17. Pending application, if any, also stands disposed of.
(Rajesh Kumar, J.)
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