Sangeeta Devi And Ors vs Pravin Chaudhary And Anr
2023 Latest Caselaw 152 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Miscellaneous Appeal No.657 of 2008
======================================================

1. Sangeeta Devi, Widow of Late Pramod Kumar @ Rai

2. Birju Rai, Son of Late Bhailal Rai

3. Alok Kumar, (minor) Son of Late Pramod Kumar @ Rai

4. Trilok Kumar, (minor) Son of Late Pramod Kumar @ Rai

5. Nisha Kumari, (minor) Daughter of Late Pramod Kumar @ Rai

6. Ragani Kumari, (minor) Daughter of Late Pramod Kumar @ Rai

7. Alaka Kumari, (minor) Daughter of Late Pramod Kumar @ Rai Serial No. 3 to 7 are minor sons and daughters of Late Pramod Kumar @ Rai under the guardianship of their mother - Sangeeta Devi. All are resident of Village- Punaura, Yadaw Tola, P.O- Punaura, P.S. + District- Sitamarhi.

... ... Appellants Versus

1. Sri Pravin Chaudhary, son of Sri Ravindra Chaudhary, Resident of Village- Laxmipur, P.S.- Benipatti, District- Madhubani. (Opposite Party No. 1)

2. The Divisional Manager, The Oriental Insurance Company Ltd. at Motijheel, P.S. - Town, District- Muzaffarpur ... ... Respondents ====================================================== Appearance :

For the Appellant/s : Mr. Mukesh Prasad Singh, Advocate For the Respondent/s : Mr. Sanjay Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 11-01-2023

Learned counsel for the appellants submits that even though

the appeal has stood dismissed against the owner of the vehicle

(Respondent No. 1), since the Insurance Company has accepted its

liability and satisfied the award, this being a case for enhancement of

the award amount, the appeal would survive as against the Insurance

Company.

I.A. No. 2952 of 2010

2. This interlocutory application has been filed seeking

condonation of delay.

Patna High Court MA No.657 of 2008 dt.11-01-2023

3. Earlier, notices were issued to the Insurance Company in

the limitation matter, however, there is no opposition to the application.

There is a delay of 30 days in filing of the appeal. Sufficient cause has

been shown in the application seeking condonation of delay.

4. I.A. No. 2952 of 2010 is allowed.

5. Heard Mr. Mukesh Prasad Singh, learned counsel for the

appellants and Mr. Sanjay Singh, learned counsel for the Oriental

Insurance Company Limited (Respondent No. 2).

6. The claimants are in appeal before this Court for

enhancement of the award rendered by the learned Additional District

Judge -V-cum- Motor Accident Claim Tribunal (hereinafter referred to

as the 'learned Tribunal') vide order dated 02.06.2008 in Claim Case

no. 126 of 2006. By the impugned order/award, the learned Tribunal has

allowed Claim Case No. 126 of 2006 and directed the Insurance

Company (Respondent No. 2) to pay a sum of Rs. 1,39,500/- (One lakh

thirty nine thousand five hundred rupees only) with interest at the rate

of 6% per annum to the claimants.

Brief facts of the case:-

7. The facts of the case are not in dispute. In the accident

which took place on 17.05.2006 near Punaura Pundrik Pokhar, a jeep

bearing Registration No. WB-02C/2357 dashed two persons namely

Athar Ansari @ Munna and Pramod Kumar @ Rai. Athar Ansari died

on the spot whereas Pramod Kumar @ Rai died in course of his

treatment. A police case giving rise to Sitamarhi P.S. Case No. 191 of Patna High Court MA No.657 of 2008 dt.11-01-2023

2006 was instituted on 18.05.2006 under Sections 279, 304A of the

Indian Penal Code. In the present appeal, we are concerned with the

case of the claimants of the deceased Pramod Kumar @ Rai which has

been dealt with in Claim Case No. 126 of 2006. The case of the

claimants was that the deceased Pramod Kumar @ Rai was aged about

26 years and he was a government teacher under Lok Shiksha Center.

They claimed that the deceased was getting Rs.1,000/- from the

government and was also earning through private tuitions. According to

the claimants, the income of the deceased was Rs.3,500/- per month

from which he was maintaining his father, wife and five minor children.

8. The insurance company (O.P.No.2) contested the claim.

9. In support of their claim, the claimant no. 1 who happened

to be the wife of the deceased deposed as AW-1. She has stated that her

husband was teaching the children in the Lok Shikshan Center and in

lieu thereof, the government was paying Rs.1,000/- per month to her

husband. He was also earning a sum of Rs.2,500/- per month from

private tuition. In course of her cross-examination, she has admitted that

she had not given any proof of appointment of her husband as Lok

Shikshak and she had not given any account of his income and

expenses.

10. Father of the deceased deposed as AW-2 who has

claimed that he was dependent upon his deceased son. To support the

case of the claimants on the point of income of the deceased, AW-7

namely Shambhu Kumar Yadav who was the ward member of Gram Patna High Court MA No.657 of 2008 dt.11-01-2023

Panchayat Punaura during the period 2001-06 has deposed. He has

stated that the deceased was teaching in the Lok Shikshan Kendra from

which he was getting Rs.1,000/- per month. He was also teaching about

20 children from which he was earning a sum of Rs.2,500/- per month.

This witness has proved a certificate (Exhibit '2') written by the

Panchayat Secretary Shivnath Ram and signed by Mukhiya Madan Rai.

In Exhibit '2', the Mukhiya of the Gram Panchayat has certified that the

deceased was getting a sum of Rs. 1,000/- per month and he was

working as teacher in the Lok Shikshan Kendra. He died on 18.05.2006

in road accident. In course of his cross-examination, AW-7 has stated

that the certificate (Exhibit '2') does not contain letter no. or memo no.

and there is no seal of any office but he denied the suggestion that the

certificate is wrong. The another witness who has deposed on the point

of employment of the deceased is AW-8 Vinesh Rai who has stated that

he knew the deceased as his co-villager and the deceased was teaching

tuition to 18 children. He was also teaching two children of this witness

and the deceased was charging Rs.125/- per month from each of the

children. He has named the co-villagers whose children were being

taught by the deceased. In his cross-examination, this witness has stated

that he does not have any proof to show that he was paying tuition fee

to the deceased. He denied the suggestion that the deceased was not

doing any work.

11. The learned Tribunal framed as many as six issues which

are being reproduced hereunder:-

Patna High Court MA No.657 of 2008 dt.11-01-2023

"(1) Is the claim case as framed maintainable? (2) Whether the accident in question took place due to rash and negligent driving of the driver of vehicle No. WB-02C/2357 on 17-5-2006 at 8.10 P.M. near Punaura Pundrik Pokhar, P.S. Sitamarhi, District Sitamarhi?

(3) Whether the deceased in Claim case no.

125/2006 Athar Ansari alias Munna S/O Md.

Muslim Ansari and deceased in claim case no. 126/2006 Pramod Kumar alias Rai S/O Birju Rai died in the accident which arises Sitmarhi P.S. case no. 191/2006?

(4) Are the claimants entitled to the claim propounded, if so what would be the quantum of compensation, from whom?

(5) Are the claimants having right to sue and have any cause of action?

(6) Are the claimants entitled to award or awards as prayed for?"

Findings of the Tribunal:-

12. Learned Tribunal has decided issue nos. 1, 2 and 3 in

favour of the claimants. While considering issue nos. 4, 5 and 6,

the learned Tribunal took a view that because there is no

documentary proof of income of the deceased, hence, notional

income has to be considered for calculation of compensation. The

learned Tribunal applied Schedule II of the Motor Vehicles Act,

1988 (hereinafter referred to as the "Act of 1988"), applied the

multiplier of 18 for the age between 25 to 30 years and taking the

notional income of the deceased as per Schedule II as Rs.15,000/-

per year, the learned Tribunal proceeded to determine the total

compensation amount payable to the claimants. The learned

Tribunal did not add any future prospect and after taking one-third Patna High Court MA No.657 of 2008 dt.11-01-2023

as personal expense of the deceased, the learned Tribunal

calculated the total loss of dependency as Rs. 10,000/- × 18 =

Rs.1,80,000/-. The learned Tribunal further added Rs. 2,500/- as

loss of estate, funeral expenses Rs.2,000/-, loss of consortium

worth Rs.5,000/-. In this manner, the claimants were found entitled

to get Rs.1,89,500/-.

Submissions on behalf of the Appellants:-

13. Learned counsel for the appellants submits that the

Schedule II was inserted in the Act of 1988 with effect from

14.11.1994. At the relevant time, the price index of 1993 was taken

into consideration and taking the daily wages of Delhi at Rs.

41.25/- at the relevant time, the notional income was provided in

Schedule II.

14. Learned counsel submits that on the one hand, the

learned Tribunal could not appreciate that the claimants had

proved the fact that the deceased was employed as a teacher in the

Lok Shikshan Sansthan and was also engaged in private tuition

and for this purpose reliable evidences were brought on record, at

the same time, the learned Tribunal committed grave error in

applying Schedule II of the Act of 1988 in respect of a claim

which arose in the year 2006. Learned counsel submits that there is

no rationale behind applying the rate fixed in Schedule II which Patna High Court MA No.657 of 2008 dt.11-01-2023

was of the year 1994. Learned counsel has relied upon the

judgment of the Hon'ble Supreme Court in the case of Sarla

Verma & Ors. Vs. Delhi Transport Corporation and Another

reported in (2009) 6 SCC 121 and National Insurance Co. Ltd.

Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 to

submit that the claimants are entitled to add future prospects to the

income of the deceased in order to calculate the total dependency

loss.

15. Learned counsel further submits that as regards the

personal expenses, the learned Tribunal has erred in taking one-

third of the income of the deceased as his personal expenses. In

this case, the deceased had got at least seven dependents upon him,

therefore, it could not have been possible for him to spend one-

third of his income upon himself. It is his submission that only to

the extent of one-fifth of the income is required to be deducted on

account of personal expenses of the deceased.

16. Learned counsel further submits that on account of

loss of estate, only Rs. 2,500/- has been allowed whereas it should

have been Rs. 15,000/-, funeral expenses has been allowed at Rs.

2,000/- which should be Rs. 15,000/- and loss of consortium has

been allowed at Rs. 5,000/- which should be enhanced to Rs.

44,000/- in terms of the judgment of the Hon'ble Supreme Court in Patna High Court MA No.657 of 2008 dt.11-01-2023

the case of United India Insurance Company Limited Vs.

Satinder Kaur @ Satwinder Kaur and Others reported in

(2021) 11 SCC 780 to each of the dependents.

17. Learned counsel submits that in view of Pranay

Sethi (Supra), the multiplier applicable in the case of deceased

would be 17 and not 18.

Submissions on behalf of the Insurance Company:-

18. Learned counsel for the respondent no. 2 has though

opposed the appeal but no substantial opposition could be made to

the submissions of learned counsel for the appellants as those are

based on the materials available on the record and the judgments

of the Hon'ble Supreme Court which are binding law of the land.

Consideration:-

19. Having regard to the submissions recorded

hereinabove and upon perusal of the records, this Court finds

substance in the submissions of learned counsel for the appellants.

It is not disputed that the deceased had passed his matriculation

examination, in fact it has been noticed by the learned Tribunal.

The applicant witnesses are consistent on the point that he was

engaged in tuition work in the village. The certificate of Mukhiya

(Exhibit '2') which was prepared by Panchayat Secretary has been

proved by an ex-member of the ward, therefore, those evidences Patna High Court MA No.657 of 2008 dt.11-01-2023

cannot be thrown out outrightly as has been done by the learned

Tribunal.

20. This Court also finds substance in the submission of

learned counsel for the appellants that the learned Tribunal has

committed error in applying Schedule II of the Act of 1988 to

derive notional income of the deceased.

21. Learned counsel for the respondent no. 2 does not

dispute that Schedule II was inserted in the Act of 1988 with effect

from 14.11.1994 and it contains notional income based on the

daily wage of unskilled workers prevailing at Delhi at the rate of

Rs. 41.25/- in the year 1993. It is well-settled by the Hon'ble Apex

Court in the case of Sarla Verma (Supra) and the same has been

reiterated in catena of judgments that the Act of 1988 is a welfare

legislation and it has a concept of 'fair compensation'. To this

Court, it appears that keeping in view Section 168 of the Act of

1988 it was the duty of the learned Tribunal to award fair

compensation in the facts of the present case. On the concept of

"Just Compensation" the Hon'ble Apex Court in Pranay Sethi

(supra) observed in paragraph '55' as under:-

"55. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on Patna High Court MA No.657 of 2008 dt.11-01-2023

acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied...."

22. This Court has been informed at the Bar that at the

relevant time, in the year 2006, the daily wage rate of unskilled

worker was Rs.89/- per day. Even as the deceased was a matriculate,

his income cannot be calculated on an amount less than the rate

prevailing for an unskilled worker. If Rs.89/- is multiplied by 26

days, it will come to Rs.2,314/- per month. The claim of the

claimants was that the deceased was earning Rs.3,500/- per month.

23. While dealing with the need to award conventional

sum, the Hon'ble Supreme Court in Pranay Sethi (supra) clarified in

paragraph '48' in the following words:-

"48. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in Trilok Chandra11. Recently, in Puttamma v. K.L. Narayana Reddy48 it has been reiterated by stating : (SCC p. 80, para 54)

11. [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362]

48. (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574 Patna High Court MA No.657 of 2008 dt.11-01-2023

"54. ... we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.""

24. Further in paragraph '50', their Lordships observed

as under:-

"50. On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in Trilok Chandra11 and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice, in different cases different amounts have been granted. A sum of Rs 1,00,000 was granted towards consortium in Rajesh2. The justification for grant of consortium, as we find from Rajesh2, is founded on the observation as we have reproduced hereinbefore."

25. Taking a que from the aforesaid views of the

Hon'ble Supreme Court, this Court would have no hesitation in

saying that the learned Tribunal has erred in taking notional

income of the deceased as per Schedule II of the Act of 1988.

26. In the kind of materials available on the record,

keeping in view the rate of daily wagers in the year 2006, this

Court deems it just and proper to take a view that the income of

the deceased is liable to be calculated at least at the rate of Rs.89/-

per day. His monthly income would, therefore, come to Rs.2,314/-

(Rs.89/-×26 days).

11. [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362]

2. [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] Patna High Court MA No.657 of 2008 dt.11-01-2023

27. In the case of Pranay Sethi (Supra), as regards

future prospects, the Hon'ble Supreme Court has held in paragraph

'57' as under:-

"57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act....."

28. Further the Hon'ble Apex Court concluded in

paragraph '59.4' as under:-

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

29. So far as deductions on account of personal expenses

are concerned, this Court finds that the deceased had his wife, five

minor children and his father dependant upon him. Thus, it would Patna High Court MA No.657 of 2008 dt.11-01-2023

be appropriate to deduct only one-fifth of his income as personal

expenses. This Court would thus accept the submissions of learned

counsel for the appellants on this aspect.

30. As regards the consortium loss and conventional

heads, again the Hon'ble Apex Court in Pranay Sethi has held in

paragraph '59.8' in following terms:-

"59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

31. In the case of Satinder Kaur @ Satwinder Kaur

(Supra), while allowing the spousal consortium and parental

consortium to the three children, the Hon'ble Supreme Court has

held in paragraph '37.12'as under:-

"37.12. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi4 and Magma General14, the following amounts are awarded under the conventional heads:

(i) Loss of estate: Rs 15,000

(ii) Loss of consortium:

(a) Spousal consortium: Rs 40,000

(b) Parental consortium: 40,000 x 3 = Rs 1,20,000

(iii) Funeral expenses : Rs 15,000"

32. Keeping in view the aforesaid judgments of the

Hon'ble Supreme Court, when the claim of the claimants is

calculated, it will come as under:-

Patna High Court MA No.657 of 2008 dt.11-01-2023

(i) Monthly Income Rs.2314.00

(ii) Add: Future Prospect @40% Rs.925.60 Total Rs.3239.60

(iii) Less: Personal Expenses 1/5th of Rs.3239.60 Rs.647.92

(iv) Loss of Dependancy: Rs.2591.68 x 12 x17 Rs.5,28,702.72

(v) Funeral Expenses Rs.15,000.00

(vi) Loss of Estate Rs.15,000.00

(vii) Loss of Spousal Consortium Rs.40,000.00

(viii) Loss of Parental Consortium to each of the five children Rs.2,00,000.00

(ix) Loss of filial consortium to father Rs.40,000.00 Total compensation to be paid Rs.8,38,702.72 Less: amount already paid Rs.1,89,500.00 Balance payable with interest @ 9% per annum from the date of Rs.6,49,202.72 filing of the claim till payment

33. The remaining amount be paid to the claimants

within a period of two months with interest at the rate of 9% per

annum from the date of filing of the application till the date of

payment.

(Rajeev Ranjan Prasad, J) lekhi/-Sushma/-

AFR/NAFR                      AFR
CAV DATE
Uploading Date                12.01.2023
Transmission Date