Patna High Court
Kavita Devi And Anr vs Sri Gunjan Kumar on 2 August, 2024
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.415 of 2014
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1. Kavita Devi W/o Sri Rambilash Kumar alias Rambilash Paswan.
2. Rambilash Kumar @ Rambilash Paswan Son of Late Baijnath Das.
Both resident of Village- Bhagat Chouki, P.S. Muffasil, P.O. Nawagarhi,
District Munger (Bihar)
... ... Appellant/s
Versus
1. Sri Gunjan Kumar S/o Binay Kumar Singh,
Resident of Village- Near Murti Makan, P.S. Patliputra, P.O. & District
Patna. (Owner of the vehicle).
2. Ranjit Kumar S/o Prabhu Rai,
Resident of Village Manpura, P.S. Patliputra, District Patna. (Driver of
vehicle).
3. The Authorized signatory, Future General India Insurance Company
Limited, Resident of 1st Floor, Harihar Chamber, Boring Road, Patna, P.O.
and District Patna. (Insurer of the vehicle)
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Raj Kumar Choudhary, Advocate.
For the Res. No.3 : Mr. Durgesh Kumar Singh, Advocate.
: Mr. Abhijeet Kumar Singh, Advocate.
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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 02-08-2024
1. Heard Learned counsel for the appellants and
learned counsel for the respondent no.3/Insurance Company.
2. This Miscellaneous Appeal has been filed under
Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred
to as "Act of 1988") on behalf of the claimants for enhancing the
compensation amount awarded to claimants/ appellants by the
learned District Judge-cum-M.V. Accident Claim Tribunal,
Munger (hereinafter referred to as "Learned Tribunal") vide
Patna High Court MA No.415 of 2014 dt.02-08-2024
2/11
judgment dated 31.03.2014 and award dated 16.04.2014 passed
in Claim Case No.53 of 2012 arising out of Muffasil P.S. Case
No. 115 of 2012.
3. The learned Tribunal held that claimants are
entitled to receive ₹4,78,500/- as compensation and accordingly
respondent no.3, Future General Insurance Co. Ltd., has been
directed to make payment of the compensation amount as per the
order within three months from the date of passing of said order
along-with 9% simple interest per annum from the date of filing
of the claim case till realization of the compensation amount.
Liberty has been given to the Insurance Company to recover the
amount of compensation from the owner of the offending vehicle
in accordance with law if at all they are entitled.
4. The details of the calculation made by the learned
Tribunal is as under :-
S.N. Particular Calculation Net Amount
1. Monthly income of deceased. Rs.4,500/- Rs.4,500/-
2. Deduction (50% of Rs.4,500/-) Rs.2,250/- Rs.2,250/-
3. Rest monthly income of Rs.2,250/- Rs.2,250/-
deceased.
4. Annual income of deceased Rs.2,250 x 12 Rs.27,000/-
after deduction.
5. Multiplier. 17 -
6. Loss of income. Rs.27,000 x 17 Rs.4,59,000/-
7. Less; the amount of personal Rs.4,59,000 - 50 % of Rs.2,29,500/-
and living expenses @ 50 % Rs.4,59,000/-
8. Loss of estate. Rs.2,500/- Rs.2,500/-
9. Funeral expenses. Rs.2,000/- Rs.2,000/-
10. Medical expenses. Rs.15,000/- Rs.15,000/-
Patna High Court MA No.415 of 2014 dt.02-08-2024
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11. Total compensation amount. Rs.4,78,000/-
12. Less paid amount u/s 140 of Rs.4,78,000- Rs.50,000 Rs.4,28,000/-
M.V. Act as ad-interim
compensation
13. Rest compensation amount. Rs.4,28,000/-
Interest @ 9 % per annum from the date of filing of
the claim case till its realization.
5. The claimants/ appellants being not satisfied and
aggrieved by the impugned judgment and award dated
31.03.2014
passed by the learned Tribunal, filed the present
appeal for enhancing the compensation amount.
6. It is submitted on behalf of Insurance Company
that the Insurance Company has not challenged the impugned
judgment and award.
7. The brief facts of this case are that the deceased
Sunny Kumar aged about 22 years, on 15.06.2012 at about 8.30
p.m. while going to Nawagarhi from his home by bicycle with
the informant and reached near High School, Nawagarhi, a Tata
Victa bearing Registration No. BR-01-PC-1600 rashly and
negligently coming from side of Munger wrongly dashed the
deceased and informant. Being seriously injured, local people
brought to Sadar Hospital, Munger for treatment where the
Doctor of Sadar Hospital, Munger, referred the deceased to
Ishwar Dayal Memorial Hospital Pvt. Hanuman Nagar, Patna for
Patna High Court MA No.415 of 2014 dt.02-08-2024
better treatment but during the course of treatment the deceased
succumbed to death and the Post-mortem was performed by Dr.
Anil Kumar at P.M.C.H. Patna. For the said occurrence on
15.06.2012 at about 8:30 p.m. Muffasil P.S. Case No. 115 of
2012 under section 279, 337, 338 & 304A of Indian Penal Code
(IPC) was registered.
8. The claimants who are parents of deceased filed
claim petition bearing Claim Case No.53 of 2012 before the
learned Tribunal for grant of compensation under section 166 of
M.V. Act claiming that the deceased was a bachelor aged about
22 years at the time of occurrence and he was earning Rs.8,000/-
per month from the business of decoration.
9. The owner (respondent no.1) and driver
(respondent no.2) of offending vehicle had appeared in the claim
case and filed their written statement and stated that the said
vehicle was insured with respondent no.3 during the said period
and the driver of the said vehicle had provisional driving license
and they have no liability to compensate the claim of claimants
and Insurance Company is fully liable to grant compensation to
the claimants.
10. The Insurance Company (respondent no.3)
appeared in the claim case and filed written statement and
admitted that the offending vehicle was insured with them,
Patna High Court MA No.415 of 2014 dt.02-08-2024
however, it is stated that the owner and driver of the offending
vehicle have violated the terms and conditions of the insurance
policy. It is further stated that the deceased had no income and
claimants were not dependent upon his income. It was denied
that the income of deceased was to the tune of Rs.8,000/- per
month.
11. After hearing the parties and the materials on
record, the learned Tribunal held that the death of deceased was
caused in the Motor Vehicle accident due to rash and negligent
driving by the driver of the offending vehicle which was insured
with the Future General India Insurance Co. Ltd. (respondent
no.3) at the relevant period of time and the said Insurance
Company is liable to pay the amount of compensation to
claimants who are mother and father of the deceased. The
deceased was engaged in decoration work and the income of
deceased was assessed Rs.4,500/- per month. The learned
Tribunal has held that the claimants are entitled for compensation
to the tune of Rs.4,78,500/- alongwith simple interest per annum
from the date of filing of claim petition till its realization.
12. Despite service of notice upon respondent no.1
(driver of offending vehicle) and respondent no.2 (owner of the
offending vehicle), no one appeared on their behalf in this
appeal.
Patna High Court MA No.415 of 2014 dt.02-08-2024
13. Learned counsel for the appellants has submitted
that the learned Tribunal has determined Rs.4,500/- per month as
earning of the deceased instead of Rs.8,000/- per month from
decoration business ignoring that there was ample documentary
evidence like sata of decoration business and also the oral
evidence to prove the income of deceased.
14. Learned counsel for the appellants has submitted
that the learned Tribunal has not awarded the just compensation
as envisaged under Section 168 of the Act of 1988 and has not
followed to well settled principle on the point of future prospects,
conventional heads of loss of Estate, Funeral Expenses and loss
of consortium in computation of compensation amount.
15. Learned counsel for the appellants relying upon
the judgment of the Constitution Bench of the Hon'ble Supreme
Court in National Insurance Company Ltd. vs. Pranay Sethi
and Others reported in (2017) 16 SCC 680 specially paragraph
no.59.4 of the judgment has submitted that since the deceased
aged about 22 years was self employed as a decorator, the
addition of 40 % of the established income as future prospects is
warranted for computation of compensation, however, the
learned Tribunal has not awarded the same.
16. Learned counsel for the appellants further
submitted that the learned Tribunal erred in applying multiplier
Patna High Court MA No.415 of 2014 dt.02-08-2024
17 instead of 18 in view of the fact that admittedly the deceased
was aged about 22 years at the time of occurrence.
17. Learned counsel for the appellants further
submits that the appellants are also entitled to get claim on
account of loss of Estate Rs.15,000/-, transportation & medical
expenses Rs.60,000/-, funeral expenses Rs.15,000/- and loss of
consortium Rs.40,000/-. He has submitted that the Constitutional
Bench of Hon'ble Supreme Court has dealt with the various
heads under which compensation is to be awarded in a death case
and one of these heads is loss of consortium. The consortium is
defined in a case of Harpreet Kaur & Ors. vs. Mohinder
Yadav & Ors. reported in 2022 SCC OnLine SC 1723. He has
further submitted that the Hon'ble Supreme Court in the case of
Chandra @ Chanda @ Chandram & Anr. vs. Mukesh
Kumar Yadav & Ors. reported in (2022) 1 SCC 198 relying
upon the Judgments in the case of Sarla Verma vs. Delhi
Transport Corporation and Anr. reported in (2009) 6 SCC 121
and Magma General Insurance Company Ltd. vs. Nanu Ram
@ Chuhru Ram & Ors. reported in (2018) 18 SCC 130 held
that the appellants were entitled for filial consortium of
Rs.40,000/- to each of the dependents.
18. Learned counsel for the respondent/Insurance
Company opposed the contention of learned counsel for the
Patna High Court MA No.415 of 2014 dt.02-08-2024
appellants and has submitted that the claimants have failed to
prove the income of deceased by adducing reliable evidence and
his income assessed by the Learned Tribunal considering the
facts and circumstances of the case including the future prospects
which requires no interference of this Court. Learned counsel has
further submitted that claimants are not entitled to any amount
under the head future prospects as the claimants have not
established the income of deceased. In view of the age of
deceased as 22, the multiplier applicable in this case as 18 has
not been disputed by the learned counsel for the Insurance
Company in view of the settled position of law in the case of
National Insurance Company Ltd. vs. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680.
19. Having heard the learned counsel for the parties
and considering the submissions made, it appears that there is no
dispute as to the occurrence and liability of the respondent/
Insurer to pay the compensation.
20. The only question that remains to be decided by
this Court is on the aspect of the quantum of damages awarded.
21. The deceased was not a salaried person but was
engaged in decoration work. The mitigating circumstances are
also to be taken into consideration while fixing the notional
income. The place of working, nature of job whether skilled or
Patna High Court MA No.415 of 2014 dt.02-08-2024
unskilled, age of the person as well as other mitigating factors
from part of consideration for the purpose of fixation of notional
monthly income for grant of compensation under the Motor
Vehicle Act, 1988.
22. Fixation of monthly income of Rs.4,500/- in the
present case is appropriate warranting no interference by this
Court. It is well settled that assessment of compensation cannot
be done with mathematical precision. The Motor Vehicle Act,
1988 also provides for assessment of just and fair compensation.
It is not necessary to go into the quantum of compensation under
various heads and ultimate order of Tribunal.
23. Having heard the learned counsel for the parties
and taking into consideration of their submission made, the Court
comes to following conclusions:-
(i). In so far as the conventional heads are concerned,
the deceased Sunni Kumar left behind his mother and father as
his dependents. On the basis of the Judgments in Pranay Sethi
(supra), Magma General Insurance Co. Ltd. vs. Nanu Ram
(2018) 18 SCC 130 and United India Insurance Company
Limited vs. Satinder Kaur @ Satwinder Kaur and Others
(2021) 11 SCC 780, the following amounts are awarded
compensation under the conventional heads:
(i) Loss of Estate Rs.15,000/-
Patna High Court MA No.415 of 2014 dt.02-08-2024
(ii) Loss of filial consortium to each Rs.80,000/-
dependents (40,000 X 2)
(iii) Funeral expenses Rs.15,000/-
(ii). So far as the head of future prospect is concerned,
in view of paragraph 59.4 of the Judgment in case of Pranay
Sethi (supra), the deceased who was engaged in decoration work
and was aged about 22 years i.e. below the age of 40 year an
addition of 40% of the actual salary is warranted.
24. Thus, in view of the facts stated herein above, in
opinion of the Court, the computation of the total amount of
compensation payable will be follows:-
S.N. Head Compensation awarded
1. Income Rs.4,500/- per month
2. Future prospects Rs.1,800/- ( i.e. 40 % of the income)
3. Deduction towards personal and Rs.3,150/-( i.e. 50% of
living expenses Rs.4,500+1,800)
4. Total annual income Rs.37,800/- (Rs.3,150 x 12)
6. Loss of dependency Rs.6,80,400/- (37,800 x 18)
7. Transportation and Medical Rs.15,000/-
expenses.
8. Funeral expenses. Rs.15,000/-
9. Loss of Estate Rs.15,000/-
10. Loss of filial Consortium. Rs.80,000/-
11. Total compensation Rs.8,05,400/- (6,80,400+1,25,000)
12. Less: ad-interim compensation Rs.50,000
already paid.
13. Total compensation payable Rs.7,55,400/-
(Rs.8,05,400 - Rs.50,000)
25. The claimants/appellants stand entitled for a
total compensation to the tune of Rs.7,55,400/-. The insurance
Patna High Court MA No.415 of 2014 dt.02-08-2024
company (respondent nos.3) will pay the said compensation
amount to the claimants deducting any amount which has already
been paid to the claimants with simple interest at the rate of 9 %
per annum calculated from the date of filing of the claim case till
its realization. The aforesaid amount shall be deposited within
two months from today and to be paid to the appellants according
to law.
26. The Judgment and award passed by the learned
Tribunal stands modified to the aforesaid extent. Accordingly,
this appeal is disposed of with the aforesaid modification in the
impugned Judgment and award.
27. There shall be no order as to costs.
28. Pending applications, if any, shall stand
disposed of.
29. Let the Trial Court Records be returned to the
Court concerned.
(Sunil Dutta Mishra, J)
Ritik/-
AFR/NAFR NAFR
CAV DATE 25/07/2024
Uploading Date 02/08/2024
Transmission Date NA
