Jharkhand High Court
Chandani Devi & Others vs Pradep Kumar Agarwal & Another on 17 August, 2021
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 62 of 2019
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Chandani Devi & Others .... ..... Appellants
Versus
Pradep Kumar Agarwal & Another .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............
For the Appellants : Ms. Saumya Pandey, Advocate. For the Respondent No. 2 : Mr. Amit Kumar Das, Advocate.
Mrs. Swati Shalini, Advocate.
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06/17.08.2021.
Heard, learned counsel for the appellants, Ms. Saumya Pandey and learned counsel for the respondent no. 2 / M/s ICICI Lombard General Insurance Company Ltd., Mr. Amit Kumar Das assisted by learned counsel, Mrs. Swati Shalini.
Learned counsel for the appellants has submitted that the claimants namely, (1) Chandani Devi, wife of Late Sanjit Bauri, (2) Puja Kumari, daughter of Late Sanjit Bauri, (3) Priti Kumari, daughter of Late Sanjit Bauri, (4) Raj Kumar Bauri, son of Late Sanjit Bauri and (5) Gangli Devi, wife of Late Radho Bauri (Claimant nos. 2 to 4 being the minors are represented through their mother and natural guardian claimant no. 1 Chandani Devi), have preferred this appeal for enhancement of the award dated 08.06.2018 passed by learned District Judge-I-cum-Presiding Officer, Motor Accident Claim Tribunal (M.A.C.T.), Bokaro in Title Motor Vehicle Suit No. 07 of 2015, whereby the claimants have been awarded compensation to the tune of Rs. 7,90,000/- (subject to deduction of Rs. 50,000/-, if paid under Section 140 of the Motor Vehicles Act) to be paid within one month from the date of award, failing which Insurance Company shall be liable for penal interest @ 6% per annum from the date of award till its realization.
Learned counsel for the appellants has submitted that subsequently the Insurance Company i.e. ICICI Lombard General Insurance Company Limited has filed a review petition stating therein that the personal and living expenses of the deceased has been deducted @ 1/5th , which ought to have been @ 1/4 th as there are five dependents, which was allowed vide order dated 08.08.2018.
-2-Learned counsel for the appellants has further submitted that the learned Tribunal has wrongly considered the income of the deceased to be Rs. 5,000/- relying upon the Notification issued by Government of Jharkhand vide S.O. No. 328 dated 01.04.2011, where the rate of minimum wages of Plumber is Rs. 160/- per day. Since, there was no notification with regard to the year of occurrence of 2014, as such, the learned Tribunal has considered the income of the deceased as Rs. 5,000/-, which is meagre amount.
Learned counsel for the appellants has referred the judgment passed by the Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), wherein in absence of any documentary evidence, the Apex Court has considered the income of the deceased, who was a Carpenter and lost his life on 02.01.2001, to be Rs. 5,000/- per month, whereas in the instant case, the deceased was Plumber and minimum wages of year 2011 is not the exact wage for a person earns during his life time and as such, considering the same, this Court may consider the income of the deceased to be Rs. 12,000/- per month as claimed by the claimants i.e. Rs. 400/- per day.
Learned counsel for the appellants has further submitted that the learned Tribunal has not considered the future prospect of the deceased in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (Para-59.4), as the deceased died at the age of 40 years as per the post-mortem report and as such, the future prospect @ 25% may be granted.
Learned counsel for the appellants has further submitted that penal interest @ 6% per annum has been awarded from the date of award if compensation amount is not paid within one month without assigning any reason, as such, in view of Section 171 of the Motor Vehicles Act, the interest ought to have been awarded from the date of filing of the claim application and it ought to have been @ 7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12) SCC 208.
-3-Section 171 of the Motor Vehicles Act reads as under:-
"171. Award of Interest where any claim is allowed - Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify to this behalf."
Learned counsel for the appellants has further submitted that because of death of bread-earner, the present appeal has not been preferred within time and the same has been preferred with delay of 140 days and for condonation of the same, I.A. No.1135/2019 has been preferred.
Learned counsel for the ICICI Lombard General Insurance Company Limited, Mr. Amit Kumar Das assisted by learned counsel, Mrs. Swati Shalini has opposed the prayer and has submitted that the delay of 140 days in preferring the present appeal is without any satisfactory explanation, as such, the delay may not be condoned. Apart from that, learned counsel for the Insurance Company, Mrs. Swati Shalini has further stated that the entire amount has already been satisfied to the claimants by 10.09.2018, as such, the appeal, which has been preferred before this Court on 01.02.2019, may not be considered in view of the judgment passed by this Court in M.A. No. 276/2020 (Najmun Bibi & Others Vs. Sutuk Sutradhar & Another).
Learned counsel for the Insurance Company has further submitted that though the impugned award has been modified on the application filed by the Insurance Company before the learned Tribunal vide order dated 08.08.2018, whereby the deduction towards personal and living expenses has been made @ 1/4th instead of 1/5th in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 (Para-30), but the said order of review has not been assailed by the appellants before this Court.
Learned counsel for the Insurance Company has further submitted that the income of the deceased, as claimed by the -4- claimants, is exorbitantly high without any substantial evidence brought on record, as such, the appeal may be dismissed, as the entire awarded amount has already been satisfied to the claimants and this will open floodgates for the claimant(s).
Considering the rival submissions of the parties, considering it to be a benevolent legislation, since the poor claimants have lost their bread-earner, as such, this Court is inclined to condone the delay of 140 days in preferring the appeal.
Accordingly, I.A. No. 1135/2019 is allowed.
After hearing learned counsel for the parties, looking into the impugned award, though the order of review has not been assailed by the appellants before this Court, whereby the personal deduction which was made in the original award @ 1/5 th has been modified to the 1/4th , but apparently from the perusal of the impugned award, it appears that the income, which has been considered by the learned Tribunal is not in accordance with law, as the learned Tribunal has relied upon the Notification issued by Government of Jharkhand vide S.O. No. 328 dated 01.04.2011, whereas the occurrence is of dated 22.12.2014.
Apart from that, the future prospect of the deceased has not been considered in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.4), whereby future prospect ought to have been @ 25% as deceased died at the age of 40 years as per post mortem report, though the claimants have claimed the age of the deceased to be 35 years.
Under the aforesaid circumstances, for just and fair compensation, this Court consider the following facts:-
It is admitted that the deceased Sanjit Bauri lost his life on 22.12.2014 in a motor accident by a Qunato Car bearing registration no. JH-09U-0150, which was duly insured before the M/s ICICI Lombard General Insurance Company Limited vide Policy No. 3001/77789250/01/000 valid from 15.02.2014 to 14.02.2015. In absence of any documentary evidence with regard to age of the deceased, the learned Tribunal has considered the age of the deceased as 40 years, who left behind five dependents at the time of death.-5-
The Insurance Company has not preferred any appeal to dispute any of the fact including the insurance coverage of offending vehicle, rather they have indemnified the award.
From perusal of the impugned award, it appears that the learned Tribunal has considered the monthly income of the deceased contrary to the claim made by the claimants to the tune of Rs. 400/- per day i.e. Rs. 12,000/- per month relying upon the Notification issued by Government of Jharkhand vide S.O. No. 328 dated 01.04.2011, which comes to Rs. 4,160/- per month and has been enhanced to Rs. 5,000/- per month, as the occurrence is of dated 22.12.2014.
In a benevolent legislation, this Court consider it to be a meagre amount in view of the judgment passed by the Apex Court in the case of Chameli Devi (Supra), where in absence of any documentary evidence for an occurrence, which took place on 02.01.2001, the Apex Court has considered the income of the deceased, who was a Carpenter, to be Rs. 5,000/-, whereas the present deceased Sanjit Bauri was a Plumber, as such, this Court consider that the minimum wages notification issued by the Government is a minimum wage that a person can earn as per the notification, but it depends upon person to person that too of a professional and as such, this Court keeping a consistent view in such matter, considering the income of a Plumber to be Rs. 6,500/- per month as the accident is of dated 22.12.2014.
As such, this Court compute the compensation afresh, which is as follows:-
Income Rs. 6,500/- per month Annual Income Rs. 6,500/- x 12 = Rs. 78,000/- 25% future prospect Rs. 78,000/- + Rs. 19,500/-
Pranay Sethi (Para-59.4) (Supra) = Rs. 97,500/- 1/4th deduction towards personal Rs. 97,500/- x 1/4 = Rs. 24,375/-
and living expenses
Sarla Verma (Smt.) (Supra)
(Para-30)
Total Income Rs. 97,500/- - Rs. 24,375/-
= Rs. 73,125/-
Multiplier of 15 (as the deceased Rs. 73,125/- x 15 = Rs. 10,96,875/- was in the age group of 36-40 years) Sarla Verma (Para-42) (Supra) -6- Conventional Head Rs. 70,000/- i.e. Rs. 15,000/- as loss of Pranay Sethi (Para-59.8) estate, Rs. 40,000/- as loss of consortium and Rs. 15,000/- as funeral expenses.
Total Compensation Amount Rs. 10,96,875/- + Rs. 70,000/-
= Rs. 11,66,875/-
The enhanced amount of Rs. 11,66,875/- shall be paid to the claimants by the Insurance Company along with interest @ 7.5% per annum from the filing of the claim application as no reason has been assigned by the learned Tribunal that delay can be attributed to the claimants / appellants.
However, the amount to the tune of Rs. 50,000/-, if paid / indemnified under Section 140 of the Motor Vehicles Act and the amount, which has been paid, pursuant to the award along with interest @ 6% per annum if the awarded amount not paid within one month from the date of award till realization of the awarded amount, shall also be deducted from the aforesaid amount of Rs.11,66,875/-.
It is expected that the Insurance Company shall indemnify the balance amount along with the calculation chart before the learned Tribunal to the claimants within a reasonable time, as the accident is of dated 22.12.2014.
This Court has considered this aspect of the matter as M.A. No. 276/2020 has been dismissed on the ground that the said appeal was devoid of merits and entire amount has been paid, but in the present appeal, in a benevolent legislation, for just and fair compensation, this Court is exercising its power and has enhanced the amount.
Accordingly, the present miscellaneous appeal is allowed.
(Kailash Prasad Deo, J.) Sunil/-