Jharkhand High Court
Branch Manager Oriental Insurance Co ... vs Sunita Devi And Ors on 17 January, 2017
Equivalent citations: 2017 AJR 174
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 152 of 2013
Branch Manager, Oriental Insurance Co. Limited Jamshedpur Branch Office, 1st
Floor, Akashdeep Plaza, PO and PS Golmuri, Jamshedpur ..... Appellant
Versus
1. Sunita Devi, Wife of late Suchit Kumar Mahto @ Satan
2. Santosh Kumar, son of late Suchit Kumar Mahto @ Satan
3. Sani Kumar, S/o late Suchit Kumar Mahto @ Satan
4. Sanu Kumar, son of late Suchit Kumar Mahto @ Satan
All resident of village and PO Jakarpura Suryagarha, Dist. Lakhisarai, at
present residing with S.R. Rao at Shashtrinagar, PO PS and Dist. Gumla
5. Anand Dahiwala , son of Ashok Dahiwala, resident of village Kochhi, Po and
PS Lakhanpur, District Bhandara, Maharashtra (Driver)
6. Surendra Nath Pandey, son of late V. Pandey, Prop. M/s Standard Transport
Company, New Kalimati Road, PO and PS Sakchi, Jamshedpur, District
Singhbhum East .... Respondents
With
M.A. No. 191 of 2013
1. Smt. Sunita Devi, Wife of late Suchit Kumar Mahto @ Satan
2. Santosh Kumar, son of late Suchit Kuamr Mahto @ Satan
3. Sani Kumar, S/o late Suchit Kuamr Mahto @ Satan
4. Sanu Kumar, son of late Suchit Kuamr Mahto @ Satan
Minor sons applicant nos. 2 to 4 are represented by appellant no.1, All are
claimants and resident of village - Jakarpura Suryagarha, Dist. Lakhisarai, PA
C/o S.R. Rao Shashtri Nagar, Gumla, PO, PS and Dist. Gumla, Jharkhand
..... Appellants
Versus
1. Anand Dahiwala son of Ashok Dahiwala, R/o Kochhi Lakhanpur, Bhandara
(Maharastra), Driver, Kadru, PS Argora, Dist. Ranchi
2. Surendra Nath Pandey, S/o late V. Pandey, Prop. M/s Standard Transport
Company, New Kalimati Road, PO, PS Sakchi, Jamshedpur, 831001, Dist. East
Singhbhum, (owner of Truck no.OR-05C-1920)
3. The Divisional Manager, Oriental Insurance Co. Limited Jamshedpur Branch
Office, 1st Floor, Akashdeep Plaza, PO Golmuri PO, PS Golmuri, Jamshedpur
Dist. East Singhbhum, Jharkhand (insurer of Truck no. OR-05C-1920)
.... Respondents
CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Alok Lal, Advocate (In M.A. No. 152 of 2013)
Mr. H.K. Chakrabarty, Advocate (In M.A. no. 191 of 2013)
For the Respondents : Mr. Sarvendra Kumar, Advocate (In M.A. No. 152 of 2013)
Mr. Alok Lal, Advocate (In M.A. No. 191 of 2013)
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02/Dated:17.01.2017
Both the appeals have been preferred against the judgment dated
05.03.2013in M.A.C. no. 1 of 2007, passed by the Principal District Judge cum M.A.C.T., Gumla, whereby the compensation of Rs.7,00,000/- has been awarded with interest @ 5% per annum from the date of filing of the claim application.
2. The appellant- Oriental Insurance Company has preferred M.A. no.152 of 2013 impugning the quantum of compensation awarded by the court below. It is argued that the claimants did not produce any chit of paper or document -2- in support of the plea that the deceased Suchit Kumar Mahto @ Satan, i.e., the driver of the Santro Car, was being paid a salary of Rs.5,000/- per month by the owner of the vehicle. It is urged that the court below has erred in computing or adding the daily allowance of Rs.100/- paid to the deceased as a part of the salary and assessing the income of the deceased at 7,600/- per month.
It is argued that such allowance cannot be computed or added to the salary. To buttress the argument, learned counsel has relied on the decision of Gauhati High Court in the case of Oriental Insurance Co. Ltd Vs. Joga Bordoloi and Another, (2011) (1) T.A.C. 510). It is contended that in the aforesaid case it has been held that the daily allowance should not be permitted to be added to the salary.
It is contended that the Tribunal has erred in adding 50% of income of the deceased towards future prospects. It is canvassed that the Supreme Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, reported in 2013 (2) T.A.C. 369 (S.C), has considered and elaborately discussed the question of addition of income towards future prospects by following the ratio laid down in the case of Sarla Verma (2009, 6, SCC, 121) and held that addition of income towards future prospects of a person (deceased) working in unorganized sector is not permissible. It is submitted that since views had been expressed by co-ordinate Bench on this question, hence, two judges Bench of Supreme Court in the case of Shashikala and Others Vs. Gangalakshmamma and Another reported in 2015 (2) T.A.C. 867 (S.C), has referred the same for consideration and this question to a larger Bench. It is urged that since the contentious issue regarding addition of income towards future prospects of a self-employed person or person employed in unorganized sector, etc. is subjudice before the larger Bench, hence, this issue cannot be considered and adjudicated at this stage.
Learned counsel has submitted that a Full Bench of Gujarat High Court in the case of Dr. Urmila J. Sangani Vs. Pragjibhai Mohanlal Luvana and Others, reported in AIR 2000, Gujarat, 211, has held that the Tribunal has no power or jurisdiction to award compensation in excess of the amount claimed in the absence of any amendment made in the application.
3. On the above grounds it is argued that in view of the decisions of the Supreme Court rendered in the cases and judgments as cited above, the judgment/award of the court below is liable to be set aside by reduction of the award and the appeal be allowed. It is urged that the claimants‟ appeal for -3- enhancement of the award is fit to be set aside.
4. Per contra, learned counsel for the appellants/claimants in M.A. no.152 of 2013, while relying on the decision in the case of Nagappa Vs. Gurudayal Singh and Others, reported in 2003 (1) T.A.C. 241 (S.C), has contended that Supreme Court has held that there is no restriction in awarding compensation exceeding the claim as because the duty is cast on the Tribunal to award just compensation on the basis of the evidence available on record.
At this juncture, learned counsel on behalf of respondents/Oriental Insurance Company has argued that it would be evident from the decisions relied upon by the learned counsel for the appellants that the Supreme Court has held that compensation cannot be enhanced beyond the amount claimed by the claimant when no amendment was sought for, hence, the decision relied on by the learned counsel for the appellant supports the settled proposition that the Tribunal cannot award compensation in excess of the claims.
5. Learned counsel for the claimants has relied on the decision in the case of Ramachandrappa Vs. Manager, Royal Sundram Alliance Insurance Company Limited; (2011) 13 Supreme Court Cases 236; and urged that the Supreme Court in the above case had ordered for compensation which was more than the amount claimed by the applicants and granted compensation by addition of income towards future prospects. Reliance has also been placed in the case of S. Perumal Vs. K. Ambika & Anr., reported in 2015(2) JCR 221(SC) wherein a lump sum compensation amount of Rs.2,00,000/- was awarded towards loss of future earnings. Learned counsel has submitted that the Madras High Court in the case of Shriram General Insurance Co. Ltd. Vs. Jasmine and Another reported in 2016 (1) T.A.C. 255 (Madras) and the Supreme Court in the case of Syed Sadiq Etc. Vs. Divisional Manager United India Ins. Co. (2014 (2) JCR 228 SC) have enhanced the compensation by addition of income towards future prospects. It is contended that the Tribunal on appreciation of the evidence available on record had rightly assessed the payable compensation amount of Rs.4,00,000/- (four lakhs), but, it has committed an error by directing the payment of compensation of Rs.7,00,000/- (seven lakhs) on the ground that the respondents/claimants had claimed compensation of only Rs.7,00,000/- (seven lakhs).
6. Heard. At the threshold it is pertinent to state that the contention raised by the learned counsel for the Oriental Insurance Co. Ltd., that the Tribunal cannot award compensation in excess or more than the claimed -4- amount in view of the decision in the case of Dr. Urmila J. Sangani (Supra) is misplaced in view of the decision in the case of Rajesh & Ors. Vs. Rajbir Singh & Ors., reported in (2013) 9, SCC, 54, wherein the three-judges Bench have considered and elaborately discussed this issue in (paras 10 and
11) as follows-
"10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa Case, it was held as follows:
(SCC p.280) "10. Thereafter, Section 168 empowers the Claims Tribunal to „make an award determining the amount of compensation which appears to it to be just‟. Therefore, the only requirement for determining the compensation is that it must be „just‟. There is no other limitation or restriction on its power for awarding just compensation".
The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir and in Ningamma v. United India Insurance Co. Ltd.
11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependents should not face the vagaries of life on account of the discontinuance of the income earned by the victim."
It is significant to note that in the aforesaid decision it has been held that another reason as to why the court should award compensation irrespective of the claims and if required, even in excess of the claim by taking note of the underlying principle for incorporating the provision of Section 158 (6) in the Motor Vehicles Act, by Amendment Act of 1994, which mandates that the police should forward the report of the motor accident involving death or bodily injury, within thirty days to the claims Tribunal and further held that such report is to be treated as an application for compensation because prior to the amendment it was left to the discretion of the Tribunal to treat the application filed under Section 166(4) of the Act as a claim or not. The rationale for awarding compensation irrespective of the claimed amount has been lucidly dealt and discussed in para-16 as follows-
"16. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with -5- reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation."
7. Learned counsel‟s contention that since the Supreme Court in the case of Shashikala and Others Vs. Gangalakshmamma and Another reported in 2015 (2) T.A.C. 867 (S.C), has taken note of the divergent views of co-ordinate Benches on the contentious issue of addition of income towards future prospects in the case of self-employed persons, daily wagers, labourers and persons employed in unorganized sector in the backdrop of the judgments rendered in Sarla Verma's case (2009), 6, SCC 121, Santosh Devi (2012) 6, SCC, 421, Reshma Kumari (2013) (2) TAC 369 and Rajesh Vs. Rajvir (Supra) and referred the matter to a larger Bench, hence, the question of increment in income by addition of future prospects cannot be gone into at this stage is not acceptable for the reason that in the said case their Lordships have referred the matter to a larger Bench, but, they have not disturbed or expressed any opinion or view on merit. It is pertinent to notice that subsequently in the case of Munnalal Jain Vs. Vipin Kumar Sharma reported in (2015) 6 SCC 347, a three-Judges Bench have followed the decision in Rajesh Vs. Rajvir (Supra) and held that addition is to be made to income of self-employed person towards the future prospects. In the aforesaid case, the deceased was a priest/purohit, i.e. a self-employed person and addition of income was made towards the future prospects.
The Supreme Court in the aforesaid decision has observed and held that grey areas are bound to exist as compensation awarded would depend on the evidence adduced and the formulas worked out by the courts are only guidelines. It is settled principle that decisions rendered in compensation cases cannot be accepted as absolute rule, accordingly, in the decisions, the Supreme Court has used the language or words by "ordinarily" "normally"
"exceptional circumstances", etc. in the absence of any statutory provision or any straightjacket formula the computation of compensation is to be determined on the basis of the facts and circumstances and the evidence obtained in a given case.
The Supreme Court in Santosh Devi's case, has held at paras-11 and18 as follows:-
"11. We have considered the respective arguments. Although the legal jurisprudence developed in the county -6- in last five decades is somewhat precedent-centric, the judgments which have bearing on socio-economic conditions of citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast-changing societal values, the effect of globalisation on the economy of the nation and their impact on the life of the people.
18. Therefore, we do not think that while making the observations in the last three lines of para 24 of Sarla Verma judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes the victim of an accident then the same formula deserves to be applied for calculating the amount of compensation."
8. The contention of the learned counsel for the insurer that the Tribunal has erred in adding the daily allowance of Rs.100/- is not sustainable for the reason that, had the Tribunal computed the compensation by adding 50% of the income towards future prospects, the income of the deceased would have been assessed at Rs.7,500/- per month. The Tribunal has assessed the daily allowances at Rs.2600/- on the premise that the deceased must have worked for 26 days in a month. If Rs.100/- is not added to the income and simultaneously, 1/3rd of Rs.5,000/- is deducted towards personal expense, it would tantamount to 1/3rd deduction two times, i.e. by not adding the daily allowance to the salary and then deducting 1/3rd from the salary resulting in more than 50% towards personal expenses.
On perusal of the impugned award it is evident that the Tribunal has assessed the compensation at Rs.11,06,560/-, but, awarded only Rs.7,00,000/- because the claimants had claimed compensation of Rs.7,00,000/- (seven lakhs) only, such reason assigned by the Tribunal is erroneous in view of the discussions made hereinabove and settled proposition laid down by the Supreme Court in the decisions as cited above.
9. The finding of the Tribunal that the monthly income of the deceased was Rs.7500/- per month by addition of Rs.100/- per day for fooding does not require any interference. The income of the deceased is accordingly assessed at Rs.7,600/- accordingly, 30% of the income, i.e. Rs.2280/- is added towards future prospects, hence, the income of the deceased is assessed at Rs.7,600 + Rs.2280 = Rs.9,880/- rounded off to Rs.9900/- per month . The annual income is thereby assessed at Rs.9,900 X 12 = Rs.11,88,00/-. After deducting 1/3rd towards personal expenses, the annual loss of dependency is calculated -7- at Rs.79,200/-. The deceased was aged 42 years, hence, the multiplier applicable will be for purchased years of 14. Accordingly, the multiplier 14 is applicable. Therefore, the actual loss of dependency is computed at Rs.79,200 X 14 = Rs.11,08,800/-. A lump sum of Rs.2,00,000/- is awarded towards loss of consortium, love and affection to the children as well as funeral expenses. Thus, the total compensation payable is assessed at Rs.11,08,800 + Rs.2,00,000 = Rs.13,08,800/- (thirteen lakhs eight thousand eight hundred only).
Therefore, the appellant Insurance Company is directed to pay Rs.13,08,800/- with interest @ 7.5% per annum from the date of filing of the application within three months from the date of receipt of copy of this order.
10. In view of the discussion made above, M.A. no. 191 of 2013 of respondents/claimants, is allowed to the extent as noted above and M.A. no. 152 of 2013, stands dismissed and the judgment/award of the Tribunal/court below is set aside and modified to the extent as indicated above.
11. The statutory amount deposited in M.A. no. 152 of 2013 shall be refunded by the Registrar General to the appellant/Oriental Insurance Company Limited.
12. Let a copy of this order be served on the counsel for Oriental Insurance Company Limited for needful.
(Amitav K. Gupta, J.) Tarun /-