Jharkhand High Court
Smt. Subhadra Devi Widow Of Late ... vs Ashok Kumar Saw Son Of Late Babulal ... on 29 August, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
M.A. No. 149 of 2010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.149 of 2010
------
1. Smt. Subhadra Devi widow of Late Jalandhar Tiwari
2. Urmila Kumari
3. Aashish Tiwari
4. Smt. Sona Devi wife of Sri Rewat Tiwari
5. Rewat Tiwari son of Late Tukan Tiwari Appellant nos.2 and 3 are minor daughter and minor son of Late Jalandhar Tiwari respectively as such they are being represented through their mother/natural guardian and next friend, i.e. Subhadra Devi (appellant no.1 herein) All resident of Village Valak, Post- Valak, P.S. Bagodar, Dist. Giridih (Jharkhand) .... .... .... Appellants Versus
1. Ashok Kumar Saw son of late Babulal Prasad Saw (owner of Mahindra Jeep No. JH-01K-4737) Resident of Village and Post- Karihari, P.S. Hirodih, Dist. Giridih, (Jharkhand)
2. Basudeo Prasad Yadav (driver of Mahindra Jeep No.JH-01K-4737) Son of Late Ricttu Yadav, Resident of Village- Rajpal Surkee Mills, Agarpara, P.S. Khirdiah, Dist. 24 Pargana (N), West Bengal
3. The United India Insurance Co. Ltd. (Insurer of Mahindra Jeep No.JH-01K-4737) through Branch Manager, Doranda Branch, Post- Ranchi, P.S. Doranda, Ranchi 834002, Dist. Ranchi (Jharkhand) through United India Insurance Company Limited Branch Office, Post- Giridih, P.S. Giridih (T), Dist. Giridih (Jharkhand) .... .... .... Respondents
------
For the Appellants : Mr. Arvind Kr. Lall, Advocate For the Respondent No.3: Mr. Dharmendra Kr. Malityar, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------
By the Court:-
1. Heard the parties.
2. No one turns up on behalf of the respondent nos.1 and 2 in-
spite of repeated calls. So this appeal is heard ex-parte against the respondent nos.1 and 2.
3. This appeal has been preferred against the judgment and award dated 01.05.2010 passed by the 1st Additional Motor Vehicles Accident Claims Tribunal, Giridih, in Claim Case No.61 of 2005 2 M.A. No. 149 of 2010 whereby and where under, the learned Tribunal awarded a sum of Rs.3,65,000/- and directed the opposite party no.3- United India Insurance Company Limited to pay the said compensation amount under an application under Section 163A of Motor Vehicle Act.
4. The brief facts of the case is that while the deceased- Jalandhar Tiwari was travelling in the offending commander jeep from village Tisri to Jamua in which jeep he was working as a cleaner (khalasi), while the said jeep was driven in a rash and negligent manner, it turned turtle causing injuries to the deceased- Jalandhar Tiwari and he succumbed to the said injuries while being taken to the hospital for treatment. It is stated that the deceased was aged about 35 years and he was earning Rs.3,000/- per month as his salary and Rs. 20/- per day as food allowance for 26 days and as such, his monthly income is Rs.3,520/-. The vehicle was insured with the opposite party no.3-insurance company.
5. The opposite party no.3- insurance company in the Tribunal opposed the claim application but did not deny the insurance policy. The owner and driver also appeared before the Tribunal and filed the insurance policy but they did not produce any other document as well as the driving licence of the driver of the vehicle.
6. The learned Tribunal on the basis of rival pleadings settled the following seven issues :-
(i) Is the application of the claimants maintainable?
(ii) Whether the claimants have got valid cause of action for the present claim?
(iii). Whether the deceased, late Jaladhar Tiwari died due to 3 M.A. No. 149 of 2010 grievous injuries arising out of use of Mahindra and Mahindra Commander Jeep No.JH-01K-4737 on 6.10.2005, Tuesday at 8:30 P.M. in near village Balkusiya, Balkusiya river bridge, under Deori P.S. Dist.- Giridih?
(iv) Whether the deceased late Jalandhar Tiwari was a khalasi aged 25 years and earning Rs.3520/- per month?
(v) Whether the vehicle was insured vide Insurance Policy No.210604/21/04/06072 by O.P.3- United India Insurance Co. Ltd. Doranda Branch, Ranchi?
(vi) Whether the O.Ps.1 and 2 possessed all the vehicular documents such as R.C. Book, Fitness certificate, Insurance policy, Driving Licence, permit etc. as required u/s 149 (2) of M.V. Act, 1988?
(vii) Whether the applicants are entitled for claim? If so, from whom and to what extent?
7. The learned Tribunal first took up issue no. v and vi and after discussing the evidence in the record came to the conclusion that the vehicle was insured with the opposite party no.3-insurance company and opposite party no.1 possessed all the vehicular documents and answered the said two issues in favour of the claimants. The learned Tribunal next took up issue nos. iii and iv and after taking into consideration the testimonies of four witnesses examined by the claimants. C.W.1 being the wife of the deceased. C.W.2- Rajendra Sao @ Raju Sao who is eye witness to the occurrence of an accident. C.W.3- Bijay Kr. Verma who is another witness to the occurrence and C.W.4- Ashok Kumar Sao who has proved the salary 4 M.A. No. 149 of 2010 slip issued by the opposite party no.1 which was marked Ext. 9 as well as the documents from the side of the claimants came to the conclusion that as food allowance cannot be included in the income of a person hence, it assessed the monthly income of the deceased to be Rs.3,000/- and deducted 1/3rd of the amount towards his personal expenses and calculated the annual dependency to be Rs.24,000/- and multiplier to be 15. Adding Rs.5,000/- towards funeral expenses, loss of consortium and arrived at the compensation amount of Rs.3,65,000/-. The tribunal in respect of the issue no. iii came to the conclusion that the claimants have been able to prove that the accident took place due to the rash and negligent driving of the jeep in question. Thereafter, the learned Tribunal took up issue nos. vii and held that insurance company is liable to pay the compensation amount. Lastly, the learned Tribunal took up issue nos. i and ii and held that the claim application is maintainable and the claimants have valid cause of action and passed the said award for payment of compensation.
8. Mr. Arvind Kumar Lall, learned counsel for the appellants submits that the learned court below erred by not considering the food allowance of Rs.20/- per day for 26 days in a month as the income of the deceased and also did not consider the settled principle of law in the case of Sarla Verma (SMT) And Others v. Delhi Transport Corporation And Another reported in (2009) 6 SCC 121. It is further submitted by Mr. Lall that the learned Tribunal ought to have awarded additional 50% of the income of the deceased over the salary of the deceased for quantifying the quantum of compensation and Rs.70,000/- 5 M.A. No. 149 of 2010 and 10% enhancement thereon under the conventional head as has been held by the Hon'ble Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi & Others reported in, (2017) 16 SCC 680. Hence, it is submitted that the compensation amount be enhanced.
9. Mr. Dharmendra Kr. Malityar, the learned counsel for the respondent no.3 on the other hand opposes the prayer for enhancement and submitted that since this is an application under Section 163A of the Motor Vehicle Act, the principle of law settled by the Hon'ble Supreme Court of India in the case of Sarla Verma (SMT) And Others v. Delhi Transport Corporation And Another (supra) and National Insurance Company Limited Vs. Pranay Sethi & Others (supra) is not applicable as the same were passed in respect of applications under Section 166 of Motor Vehicle Act for which applications, establishing the fault of the driver of the offending vehicle is not sine-qua-non whereas the application under Section 163A of Motor Vehicle Act is based on the principle of no fault liability.
10. Having heard the rival submissions made at the bar and after going through the materials in the record, the sole point for determination that crop up in this appeal for consideration is:-
'Whether the quantum of compensation awarded by the Tribunal is to be enhanced?'
11. This Court in the case of Sohwa Devi & Ors. vs. Ranjit Das & Anr. in M.A. No.148 of 2010 dated 28.06.2022, in paragraph no. 6 observed as under :-
6. Having heard the submissions made at the Bar and upon perusal of the record, the sole point for determination that crop up in this appeal for consideration is;6
M.A. No. 149 of 2010
'Whether the compensation amount payable to the appellants is to be enhanced?' It is pertinent to mention here that the claim was made under Section 163A of the Motor Vehicles Act, 1988. The purpose of the legislature for introducing Section 163A of the Motor Vehicles Act, 1988 was as a beneficial piece of legislation. Any claim made under the Section 163A of the Motor Vehicles Act, 1988 exempts the claimant from proving the negligence on the part of the offending vehicle. It is a settled principle of law that even if the claimant is at fault; he can resort to Section 163 A of the Motor Vehicle Act, 1988. The principle of law settled in the case of National Insurance Company Limited Vs. PranaySethi& Others was in respect of a claim petition under Section 166 of the Motor Vehicles Act, 1988. So when the basis on which the dependents of a victim in case of death of the victim or the victim himself can be entitled to compensation under Section 166 of the Motor Vehicles Act are different from the requirements of section 163A of the Motor Vehicles Act, 1988,the principle of law settled by the court or a precedent in respect of an application under Section 166 of the Motor Vehicles Act cannot be used as a strait jacket formula in respect of a petition under Section 163A of the Motor Vehicles Act. Hence, this Court is of the considered view that the principle of law laid down in National Insurance Company Limited Vs. Pranay Sethi & Others (supra) regarding adding additional amount towards future prospects cannot as a general rule be applied in respect of an application filed under Section 163 A of the Motor Vehicles Act, 1988. Similarly, since Section 163A of the Motor Vehicles Act, 1988 has laid down in no uncertain manner that under general damages, funeral expenses of Rs.2,000/-, loss of consortium, if the beneficiary is spouse to be Rs.5,000/- and loss of estate to be Rs.5,000/-. So this Court is also of the considered view that the appellant-claimants are entitled to general damages of Rs.9,500/- only and not ₹ 70,000/-claimed by them.
So far as the interest is concerned as there is no material in the record to suggest that there was any laches on the part of the claimants in delay in disposal of the claim petition nor any reason has been assigned by the learned tribunal, as to why it awarded interest from the date of judgment instead of from the date of filing of the claim petition, this Court is of the considered view that the claimants are entitled to interest from the date of filing of the claim petition. In view of the second Schedule of the Motor Vehicles Act, 1988, as the deceased was aged 30 years, the multiplier 17 ought to have been 7 M.A. No. 149 of 2010 applied by the learned tribunal. Now as the monthly income of the deceased has been, both claimed by the claimants and assessed by the learned tribunal to be Rs.3,000/-, his annual income comes to Rs.36,000/-. Deducting 1/3rd of the same as personal expenses of the deceased, the remaining amount is Rs.24,000/- per annum. By applying the multiplier 17, the total amount comes to Rs.4,08,000/-. Besides, the claimants are entitled to Rs.9,500/- as per second Schedule of the Motor Vehicles Act, 1988 as it existed in the Statute Books at the relevant point of time of Rs.9,500/- to be under the general payment. So total amount comes out to Rs.4,17,500/-. Since, it is a petition under Section 163 A of the Motor Vehicles Act, 1988, the learned tribunal certainly erred by deducting 50% of the compensation amount on the contributory negligence on the part of the offending truck as there is no evidence in the record to suggest that there was any contributory negligence and further as negligence is not a sine qua non for filing an application under Section 163 A of the Motor Vehicles Act, 1988. Hence, the claimants are entitled to receive Rs.4,17,500/- along with interest thereon at the rate of 8% per annum from the date of filing of the claim petition till the date of actual payment, for which the opposite party nos. 1 & 2 are jointly and separately liable. The sole point for determination is answered accordingly. (Emphasis supplied)
12. Now coming to the facts of the case, here a claim was made under Section 163A of Motor Vehicles Act. As has already been observed by this Court in the case of Sohwa Devi & Ors. vs. Ranjit Das & Anr. in M.A. No.148 of 2010 (supra), the purpose of legislation for introducing Section 163A of the Motor Vehicles Act, 1988 was as a beneficial piece of legislation. Any claim made under the Section 163A of the Motor Vehicles Act, 1988 exempts the claimant from proving the negligence on the part of the offending vehicle. It is a settled principle of law that even if the claimant is at fault; he can resort to Section 163 A of the Motor Vehicle Act, 1988. The principle of law settled in the case of National Insurance Company Limited Vs. 8 M.A. No. 149 of 2010 Pranay Sethi & Others (supra) or for that matter in the case of Sarla Verma (SMT) And Others v. Delhi Transport Corporation And Another (supra) were in respect of a claim petitions filed under Section 166 of the Motor Vehicles Act, 1988. So when the basis on which the dependents of a victim in case of death of the victim or the victim himself in case of permanent disability can be entitled to compensation under Section 166 of the Motor Vehicles Act are different from the requirements of section 163A of the Motor Vehicles Act, 1988, the principle of law settled by the court or a precedent in respect of an application under Section 166 of the Motor Vehicles Act cannot be used as a strait jacket formula in respect of a petition under Section 163A of the Motor Vehicles Act. Hence, this Court is of the considered view that the principles of law as enunciated in National Insurance Company Limited Vs. Pranay Sethi & Others (supra) and Sarla Verma (SMT) And Others v. Delhi Transport Corporation And Another (supra) regarding adding additional amount towards future prospects in case of applications under section 166 of the Motor Vehicles Act, 1988, cannot as a general rule be applied in respect of an application filed under Section 163 A of the Motor Vehicles Act, 1988 or for that purpose under conventional head under general damages cannot be applied to an application under Section 163A of Motor Vehicle Act, 1988 because Section 163A of the Motor Vehicle Act has in no uncertain manner envisages that under funeral expenses Rs.2,000/-, loss of consortium, if the beneficiary is spouse Rs.5,000/- and loss of estate of Rs.2,500/- is to be awarded. So this Court is of the considered view that the appellant-claimants are entitled to general 9 M.A. No. 149 of 2010 damages of Rs.9,500/- only.
13. So far as the contention of the appellants regarding the assessment of the income of the deceased to be Rs.3,000/- by the Tribunal excluding the food allowance of Rs.20/- per day is concerned, keeping in view the evidence in the record and when it is the case of the claimants themselves that the monthly salary of the deceased was Rs.3,000/-, the assessment of the income of the deceased as Rs.3,000/- appears to be proper and this Court is not inclined to interfere with the same. Since only Rs.5,000/- has been awarded under the general damages, the same is to be enhanced to Rs.9,500/-. So the total compensation amount comes to Rs.3,69,500/-. The sole point for determination is answered accordingly.
14. In view of the discussions made above, the opposite party no.3- United India Insurance Company Limited is directed to pay total compensation of Rs.3,69,500/- with interest at the rate stipulated in the impugned judgment and award less the amount if already paid within three months of this Judgment.
15. The impugned judgment and award is modified to the aforesaid extent only.
16. In the result, this appeal is allowed with the aforesaid modification.
17. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 29th August, 2022 AFR/ Sonu-Gunjan/-