Bebi Khatoon And Anr vs Mrs. Sita Devi And Ors
2023 Latest Caselaw 735 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Miscellaneous Appeal No.1082 of 2016
     ======================================================

1. Bebi Khatoon, wife of Fucho [email protected] Md. Fucho

2. wife of Fucho Miyan @ Md. Fucho, son of Koko Miyan Both resident of village - Sadhua. PS- Rangra Gopalpur Distt- Bhagalpur

... ... Appellants Versus

1. Mrs. Sita Devi, wife of Bipin Kumar Resident of village- Bariyarpur. PS-

Bariyarpur. Distt- Munger.

2. Lalan Singh @ Lalan Kumar Singh, son of Umashankar Singh, resident of village- Katehar. PS- Surajgarha. Distt- Lakhisarai.

3. Manager, Sri Ram. General Insurance Company LTD. Sitapura. Jaipur, (Rajasthan) 302022 (Insurer of the vehicle)

... ... Respondents ====================================================== Appearance :

For the Appellant/s : Mr.Vivekanand Vivek, Advocate For the Respondent/s : Mr.Alok Kr. Shahi, Advocate Ms. Archna Sinha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 10-02-2023

Heard learned counsel for the appellants and learned

counsel for the Insurance Company (respondent no.3).

2. This miscellaneous appeal has been preferred being

aggrieved by and dissatisfied with the adjudication as regards issue

nos. 4 and 5 by the learned Tribunal vide impugned judgment and

award dated 06.02.2016 and 13.05.2016 respectively in Claim

Case No. 43 of 2013. The appellants who are parents of the

deceased are seeking modification of the judgment and the award

impugned in the appeal by way of enhancement of the

compensation amount.

Patna High Court MA No.1082 of 2016 dt.10-02-2023

Brief facts of the Case

3. It is the case of the claimants that on 12.11.2012 the

deceased Md. Bado was waiting for the bus at Rangra Chowk. A

Bolero vehicle bearing registration no. BR-09G-4570 came in the

meantime and crushed the deceased and another person who were

standing there. Md. Bado was seriously injured, he was admitted

in Patna Hospital and only after five days in course of treatment he

died on 17.11.2012. The accident took place allegedly due to rash

and negligent driving of the Bolero vehicle by the driver. A

criminal case giving rise to Gopalpur (Rangra) P.S. Case No. 364

of 2012 dated 12.11.2012 under Section 279, 337, 338, 304A, 427

of the Indian Penal Code was registered against the driver of the

offending vehicle.

4. The claimants filed their claim under Section 166 of

the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act of

1988') before the learned Tribunal. They claimed that the deceased

had a business of dealing in animals and he was earning Rs.

6,000/- per month from that business. It is not in dispute that the

offending vehicle was insured with Shri Ram General Insurance

Company Limited (O.P. No. 3) and at the time of accident, the

insurance policy was effective.

Patna High Court MA No.1082 of 2016 dt.10-02-2023

5. In the Tribunal the owner and driver of the offending

vehicle appeared, they filed their joint written statement. They

admitted that the vehicle was insured with O.P. No. 3 vide policy

effective from 01.03.2012 to 28.02.2013 and was covered on the

date of accident i.e. 12.11.2012. The owner claimed that he has not

committed any breach of terms and conditions of the insurance

policy and at the time of accident the driver was holding a valid

and effective driving licence.

6. The claimant no.1 produced herself and also brought

another witness Lukman Ali (C.W.2). In addition to the oral

evidence, they also relied upon some documentary evidence which

are Exhibit '1' to Exhibit '7'. Exhibit '1' is the certified copy of

the F.I.R., Exhibit '2' is the certified copy of the chargesheet,

Exhibit '3' is the photocopy of post-mortem report of the deceased,

Exhibit '4' is the photocopy of the insurance policy of the

offending vehicle, Exhibit '5' is the photocopy of registration

certificate of the offending Bolero vehicle, Exhibit '6' is the

photocopy of driving licence of O.P. No. 2 and Exhibit '7' is the

original heirship certificate.

7. The Insurance Company (O.P. No. 3) appeared and

filed a written statement. They contested the case showing that the

proof of age and income has not been filed and that the driver was Patna High Court MA No.1082 of 2016 dt.10-02-2023

not holding a valid and effective driving licence. Some other

ornamental pleas were also taken on behalf of the Insurance

Company.

8. The Tribunal framed as many as five issues which are

being reproduced hereunder:-

"Issues

1. Whether the claim application as framed and filed is maintainable.

2. Whether the claimants have any cause of action.

3. Whether claimants are entitled to get compensation.

4. What should be just compensation.

5.To what relief or reliefs."

9. As against the aforesaid oral and documentary

evidences of the claimants, no oral or documentary evidence was

brought on record on behalf of the opposite parties.

10. In the aforementioned background, the learned

Tribunal considered the evidences available on the record with

reference to the issues framed. So far as issue no. 3 is concerned,

after a careful analysis of the evidences on record, the Tribunal

concluded that the accident took place due to rash and negligent

driving of the driver of the offending vehicle and for that reason

the claimants are entitled to get compensation.

11. It is the decision of the Tribunal with regard to

issue nos. 4 and 5 which has been assailed by learned counsel for

the appellants. While deciding these issues the learned Tribunal

has recorded that the claimants have led oral evidences. C.W.1 Patna High Court MA No.1082 of 2016 dt.10-02-2023

who is the mother of the deceased has supported the fact that the

deceased was engaged in business of sale of animals. She was

supported by C.W.-2 who said that he knew the deceased as a co-

villager and further stated that at the time of occurrence the

deceased was doing business of sale and purchase of animals and

used to earn Rs. 6,000/- per month.

12. Having recorded so, the Tribunal observed that

these two witnesses have been cross-examined by the learned

counsel appearing for the opposite party at length but it transpires

that nothing has come out in their respective cross-examination to

disbelieve their testimony. The Tribunal, however, accepted the

submission of the Insurance Company that in absence of any

documentary evidence on the point of income, the income must be

considered on the notional basis. The Tribunal has, thus, assessed

the income of the deceased at Rs. 3,000/- per month. It is this

assessment of income @ Rs. 3,000/- per month which has been

heavily contested by the parties. While learned counsel for the

appellants submits that once the Tribunal has recorded that nothing

has come out in their respective cross-examination to disbelieve

their testimony, the Tribunal is not justified in reducing the income

to the extent of half of the amount mentioned by the two

witnesses, on the other hand, learned counsel for the Insurance Patna High Court MA No.1082 of 2016 dt.10-02-2023

Company has submitted that in absence of there being any

documentary evidence on the point of income the Tribunal is fully

justified in taking a reasonable view of the matter and in this case

the Tribunal has rightly fixed the notional income at Rs. 3,000/-

per month.

13. It further appears that the Tribunal has applied the

multiplier on the basis of the age of the claimant no. 1 who is the

mother of the deceased and not on the basis of the age of the

deceased. Learned counsel for the Insurance Company agrees that

this approach of the Tribunal is in conflict with the judgment of

the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and

others Vs. Delhi Transport Corporation and Another reported

in (2009) 6 SCC 121. Hence, it would only be just and proper to

apply the applicable multiplier '18' taking the age of the deceased

as 22 years only at the time of accident.

14. The Tribunal has not allowed any future prospect, as

per Sarla Verma (supra) future prospect was to be allowed @

50% of the annual income in certain employments but later on in

case of National Insurance Company Limited vs. Pranay Sethi

and others reported in (2017)16 SCC 680, the Hon'ble Supreme

Court has held that in case of the deceased being up to the age of

40 years and self employed the future prospect would be added by Patna High Court MA No.1082 of 2016 dt.10-02-2023

40% of the annual income. There is no disagreement on this

between the parties.

15. In the present case the Tribunal has allowed

compensation on account of loss of estate at Rs. 2,500/- and

funeral expenses at Rs. 2,000/- which according to the judgment of

the Hon'ble Supreme Court in the case of Pranay Sethi (supra)

would be liable to increase at Rs. 15,000/- each. Apart from this

learned counsel for the parties do not dispute that as per the

judgment in the case of Pranay Sethi (supra) the parents of the

deceased would be entitled to get parental consortium at Rs.

44,000/- each at this stage.

Consideration

16. Having heard learned counsel for the parties and

upon perusal of the records, this Court finds that so far as the

compensation on account of the parental consortium, loss of estate

and funeral expenses are concerned, there is no dispute that in

view of the Constitution Bench Judgment of the Hon'ble Supreme

Court in the case of Pranay Sethi (supra), the claimants-appellants

should be entitled to get Rs. 44,000/-, Rs. 15,000/- and 15,000/-

respectively. There is also no quarrel on the applicable multiplier

being '18' in this case.

Patna High Court MA No.1082 of 2016 dt.10-02-2023

17. Learned counsel for the Insurance Company has,

however, submitted that the Tribunal has deducted one third of the

annual income as personal expenses whereas in view of Pranay

Sethi the deceased being unmarried the personal expenses would

be deducted at the rate of 50% of the annual income. Learned

counsel for the appellants do not contest this submission.

18. The only bone of contention between the parties is

the monthly income of the deceased. As noted hereinabove, the

case of the appellants is that once the Tribunal had found that

nothing has come out in the cross examination of the complainant

witnesses so as to disbelieve their testimony, the Tribunal should

have straightway allowed the amount claimed by the claimants, the

submission of Insurance Company is that the Tribunal being the

adjudicatory body has to take a final view of the matter not only

by considering that in the cross examination nothing has come out

against the examination-in-chief of the claimants but also by

considering the quality of the evidences and the evidentiary value

which are required to be attached to those evidences.

19. Learned counsel for the Insurance Company

submits that in this case there was no independent witness. C.W.1

is the mother of the deceased whereas C.W.2 is his co-villager. It is

not the statement of the C.W.2 that he was engaged in business Patna High Court MA No.1082 of 2016 dt.10-02-2023

with the deceased. He has not disclosed his source of information

as to the income of the deceased and had no opportunity to be

aware of the transactions of the deceased in the matter of sale and

purchase of animals. In such circumstances, it is submitted that the

evidences brought on record by and on behalf of the claimants

were not clinching.

20. This Court has given anxious consideration to the

submissions advanced on behalf of the parties. While it is true that

the learned Tribunal has recorded that in cross examination

nothing could be extracted from the two witnesses so as to

disbelieve the statements of those witnesses in their examination in

chief nonetheless in the opinion of this Court the Tribunal as an

adjudicating body has to assess the income of the deceased by

taking into consideration the evidentiary value of the evidences on

the record. In this case, there is no independent witness and the

submission of the Insurance Company is that C.W.2 has not

claimed any personal knowledge about the business of the

deceased and the income derived therefrom, the evidences on the

record would not be clinching and the same may be required to be

applied keeping in view the principle of 'just compensation'. To

this Court, it appears that in such circumstance, the Tribunal has to Patna High Court MA No.1082 of 2016 dt.10-02-2023

balance interest of the claimants as well as the liability of the

insurer.

21. This Court finds that the Tribunal has assessed the

notional income on the basis of Schedule II of the Act of 1988. In

the case of Sarla Verma (Smt) the Hon'ble Supreme Court has

held that the said schedule II is not workable. In all fairness, equity

and justice, in the opinion of this court, the Tribunal should have

adopted a more pragmatic approach in fixing the notional income

and for that purpose the Tribunal could have relied upon the

notifications of the State Government providing for the minimum

wages in the State of Bihar.

22. At the relevant time, the notification for the period

October 1 2010 to March 31, 2011 was available. This Court has

perused the same. In different scheduled employments the rate of

unskilled, semi-skilled, skilled and highly skilled as also

clerical/supervisory rates were fixed. The rate for skilled work at

the relevant time was Rs. 132/- in most of the scheduled

employment. In this case the accident has taken place on

12.11.2012 which is about one and half year after the said period

of 31st March, 2011, therefore, this Court would give some

increase to that amount in order to arrive at "just compensation" to

give succor to the dependants of the deceased. This Court, Patna High Court MA No.1082 of 2016 dt.10-02-2023

therefore, allows a sum of Rs. 150/- per day notional income to the

deceased. The loss of earning is liable to be calculated taking into

account the said amount of Rs. 150/- per day. The impugned

judgment and award is, therefore, liable to be modified to the

extent indicated hereinabove.

23. As a result of the aforesaid modification, the claims

payable to the claimants-appellants would be as under:

        1.              Loss of Income              Rs. 150/- per day
               Income + Future Prospect @ 40%       150x26 days= 3900/-
                      deductions @ 50%              3900x12 = 46800 + 40%
                                                    18,720x18 multiplier = 11,79,360/-
                                                    After deduction - 5,89,680/-
        2.               Loss of Estate             Rs.15,000.00
        3.             Funeral Expenses             Rs.15,000.00
        4.       Parental Consortium                Rs. 44,000 x 2 = 88,000.00
        5.                  TOTAL                   Rs. 7,07,680.00
        6.                Already paid              Rs.3,64,500.00
        7.               Total payable              Rs. 3,43,180.00 + Interest @ 8%
                                                    per annum from the date filing of
                                                    the claim till the date of payment.

24. Learned counsel for the Insurance Company has

prayed for returning the statutory amount deposited by the appellant

at the time of filing of the appeal. Learned counsel submits that in

view of the judgment of this court in the case of United India

Insurance Insurance Company Limited Vs. Manju Devi and

others reported in (1998) 3 PLJR 506 the amount so deposited is

to be adjusted against the award. Since the Insurance Company has

been made liable to pay the award amount, the statutory amount be Patna High Court MA No.1082 of 2016 dt.10-02-2023

refunded. Let the statutory amount be returned to the Insurance

Company.

25. The Miscellaneous Application is disposed of.

                                                                     (Rajeev Ranjan Prasad, J)
vats/Rajeev
AFR/NAFR
CAV DATE
Uploading Date              14.02.2023
Transmission Date