Jharkhand High Court
Sangita Devi & Ors vs Sri Dineshwar Sharma & Ors on 16 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
M.A. No. 366 of 2014
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 366 of 2014
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Sangita Devi & Ors. .... .... .... Appellants
Versus
Sri Dineshwar Sharma & Ors. .... .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellants : Mr. Vijay Kr. Sharma, Advocate For the Respondents : Mr. Om Prakash, Advocate
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Order No.12 Dated- 16.11.2022 I.A. No.10064 of 2022 with I.A. No.10065 of 2022 Heard the parties.
Learned counsel for the appellants submits that Interlocutory Application No.10064 of 2022 has been filed with a prayer to delete the name of the respondent no.4 -Radha Devi who died on 31.05.2022 leaving behind her husband namely -Ramjeet Prajapati as her only legal representative who is already party to this appeal being the respondent no.3.
It is further submitted by the learned counsel for the appellants that Interlocutory Application No.10065 of 2022 has been filed with a prayer to condone the delay in filing the petition for deletion of the name of the deceased respondent no.4.
Considering the aforesaid facts and circumstances of the case, the delay in filing the petition to delete the name of the deceased respondent no.4 -Radha Devi is allowed.
Registry is directed to mention the word 'dead' against the name of the deceased respondent no.4 -Radha Devi in the cause title of the appeal memo with red ink.
Both the interlocutory applications are disposed of accordingly.
Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 1 M.A. No. 366 of 2014 IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No.366 of 2014 ------
1. Sangita Devi, wife of Late Shankar Prajapati
2. Nitu Kumari, daughter of Late Shankar Prajapati
3. Nitish Kumar
4. Alok Kumar
5. Anand Kumar (Sl. No. 3 to 5, all sons of Late Shankar Prajapati) [All resident of village -Jori, P.O. -Jori, P.S. -Bashisthnagar (Jori), District
-Chatra] [Claimant/Appellant nos. 2 to 5 are minor daughter/sons who are represented through their mother Appellant No.1] .... .... .... Appellants Versus
1. Sri Dineshwar Sharma, son of Sri Andrika Sharma, Near D.M. Residence, West Jagjiwan Road, A.P. Colony, Gaya, District -Gaya, Bihar, owner of the vehicle.
2. The Oriental Insurance Company Ltd, at Near Jain Petrol Pump, Ravindra Path, Hazaribagh, P.O. + P.S.+ District -Hazaribagh.
3. Raamjeet Prajapati, son of Late Sitaram Prajapati
4. Deleted vide order dated 21.11.2022 [Sl. No. 3 & 4, both resident of village -Jori, P.O. -Jori, P.S. - Bashisthnagar, District -Chatra] .... .... .... Respondents
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For the Appellants : Mr. Vijay Kumar Sharma, Advocate For the Respondent no.2 : Mr. Om Prakash, Advocate {Appearing on instruction of Mrs. Rita Kumari} PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:-
1. Heard the parties.
2. This appeal has been preferred against the judgment and award dated 30.06.2014 passed by the District Judge-cum-Additional Claim Tribunal -II, Chatra in Claim Case No.01 of 2013 by which the learned Tribunal has awarded a compensation of Rs.6,11,000/- to the claimants to be paid by the opposite party no.2 -insurance company.
3. The brief facts of the case is that on 17.10.2012, the deceased - 2 M.A. No. 366 of 2014
Shanker Prajapati while returning from Gaya to his house after purchasing materials for his shop in a bus, the bus being rashly and negligently driven dashed the dumper parked on road causing injuries to the deceased -Shanker Prajapati and many other persons. The deceased was aged about 35 years and was earning his livelihood by running a grocery and puja material shop. The deceased was taken to RIMS, Ranchi for treatment and he died because of the injuries on 20.10.2012. In connection with the said accident, Hunterganj P.S. Case No. 162 of 2012 was registered and after investigation, charge sheet was submitted against the driver of the offending bus namely Sheo Kumar Choudhary. In his written statement, the opposite party no.1 -the owner of the bus pleaded that since at the time accident, the offending bus was insured with Oriental Insurance Company Ltd., hence the opposite party no.2 is liable to pay the compensation, if any. The opposite party no.1 -owner of the bus further pleaded that permit, fitness, tax token, insurance and the driving license of the driver were valid and effective. The opposite party no.2 -Oriental Insurance Company pleaded that the claimants be put to strict proof of their pleadings.
4. In view of the rival pleadings of the parties, the learned Tribunal settled the following five issues:-
(i) Is this claim case maintainable?
(ii) Had Shanker Prajapati died in a vehicular accident which took place on 17.10.2012 near Madarsha, P.S. Hunterganj, Dist -Chatra, when the Star Fish bus bearing registration no.BR-2H-5285 dashed with a dumper due to rash and negligent driving of its driver?
(iii) What was the age and income of the deceased? 3 M.A. No. 366 of 2014
(iv) Was the vehicle in question owned by Sri Dineshwar Sharma and insured with Oriental Insurance Company Ltd at the time of occurrence?
(v) Are the claimants entitled for compensation and if yes, what should be the amount of compensation and who shall satisfy the award?
5. In support of their case, the claimants examined three witnesses and marked the documents which have been marked Ext. 1 & 2 and the documents were marked for identification as X to X/3 also. From the side of the opposite party nos. 3 & 4, one witness was examined and the insurance company-opposite party no.2 brought on record the temporary permit marked Y for identification.
6. Out of the witnesses examined by the claimants, C.W.1 - Sangita Devi is the wife of the deceased. She has stated about the accident of the deceased. Her husband was 35 years of age at the time of his death and was earning net income of RS.9,000/-. In her cross- examination, she has stated that she is not an eye-witness to the occurrence of accident. She has produced the documents regarding the income of her husband but she cannot say which document was filed. Again she stated that no document of the shop of her husband is available and no record is maintained by her husband. She does not know the name of the stall of her husband. She cannot say, when she married her husband. She cannot say what her age was at the time of her marriage.
7. C.W.2 -Raju Pandit is the younger brother of the deceased. He has also stated about the deceased running a grocery and puja article shop near the Kali Temple. He has also stated about the accident of the 4 M.A. No. 366 of 2014 deceased. Rs.50,000/- was incurred in the treatment of the deceased. The deceased was 35 years of age at the time of his accident. The deceased was earning Rs.9,000/- per month from his shop. In his cross- examination, the C.W.2 has stated that he was having a cycle shop. He earns Rs.150-200/- per day from his shop. The C.W.2 has no concern with the income of the deceased. The deceased read up to class-VIII. The C.W.2 could not produce the certificate regarding the age of the deceased.
8. C.W.3 -Yugesh Prasad has also stated that the deceased was running a grocery and puja material shop near Kali Temple. He has also stated about the accident. C.W.3 is an eye-witness to the occurrence. In his examination-in-chief filed in the shape of an affidavit, the C.W.3 has stated that the deceased was earning Rs.9,000/- per month. In his cross- examination, the C.W.3 has stated that he earns Rs.4,000/- from cultivation. He is not related to the deceased -Shanker Prajapati. He has no concern with the business of the deceased -Shanker Prajapati. He cannot produce any documents regarding the shop of the deceased in the court.
9. The learned tribunal dealt with all the issues in detail and came to the conclusion that the deceased -Shanker Prajapati died in a motor vehicle accident which took place on 17.10.2012 because of rash and negligent driving of driver of the offending bus and the age of the deceased was 35 years at the time of his death. The depositions of the C.W.1 and C.W.2 did not inspire confidence of the learned tribunal regarding the income of the deceased because of several contradictions in their testimony as enumerated by the learned tribunal and considering that no document relating to the shop of the deceased was filed as also 5 M.A. No. 366 of 2014 the striking similarity in the examination-in-chief of the witnesses filed on oath and that the deceased was not having any account in the bank or post-office and the C.W.2 has stated that he has given information about the income of the deceased on mere speculation and the false statement made by the C.W.1 that she has filed documents regarding the income of her husband, the learned tribunal assessed the income of the deceased at Rs.3,000/- per month and added 50% towards future prospects and deducted 1/3rd of the amount towards personal expenses and awarded Rs.35,000/- under conventional head and arrived at a total compensation amount of Rs.6,11,000/-.
10. It is submitted by the learned counsel for the appellants that the learned tribunal erred in not considering the oral testimony of the witnesses examined by the claimants which goes to show that the deceased was earning Rs.9,000/-. It is next submitted by the learned counsel for the appellant that keeping in view the fact that the deceased had five dependents in view of 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 reported in (2009) 6 SCC 121, the learned tribunal ought to have deducted 1/4 th of the income towards personal expenses of the deceased. It is further submitted that the learned tribunal erred by not awarding interest on the compensation amount from the date of filing of the claim petition. It is further submitted by the learned counsel for the appellants that in view of the principle of law settled in the case of National Insurance Company Limited Vs. Pranay Sethi & Others, reported in (2017) 16 SCC 680, the learned tribunal ought to have awarded Rs.70,000/- under conventional head. Hence, it is submitted that the interest from the date 6 M.A. No. 366 of 2014 of filing of the claim petition be awarded and the impugned judgment and award of the learned tribunal be modified accordingly.
11. Mr. Om Prakash, the learned counsel appearing for the respondent no.2- insurance company on the instruction of Mrs. Rita Kumari, the learned counsel appearing on record for the respondent no.2-insurance company on the other hand defends the impugned judgment and award and submits that in view of the principle of law settled by the Hon'ble Supreme Court of India by a Constitution Bench of five Judges in the case of National Insurance Company Limited Vs. Pranay Sethi & Others, reported in (2017) 16 SCC 680, the learned tribunal erred by enhancing the income of the deceased towards future prospects by 50% but in fact the same should have been enhanced by 40%. It is next submitted that the learned tribunal has awarded a just compensation and anything in excess of that will amount to a wind fall for the claimants more so when the mother of the deceased was also awarded the compensation amount who in the meanwhile has admittedly expired. Hence, it is submitted that this appeal being without any merit be dismissed.
12. Having heard the rival submissions made at the Bar and after going through the materials in the record, the only point for determination that crop up in this appeal is "Whether the amount of compensation awarded by the tribunal is to be interfered with and if so what amount of compensation is to be awarded?"
13. It is pertinent to mention here that it is a settled principle of law as has been observed by the Hon'ble Supreme Court of India, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) Vs. State of Maharashtra 7 M.A. No. 366 of 2014 reported in (2010) 13 SCC 657 that the trial court which has the benefit of watching the demeanor of the witness is the best judge of the credibility of the witness as has been observed in para-38 of the said judgment. The learned tribunal for cogent reasons has not accepted the claim of the claimants that the deceased was earning Rs.9,000/- per month including the credibility of the witnesses examined for the reasons assigned in the impugned judgment and award.
14. Under such circumstances, this court is not inclined to interfere with the assessment of the income of the deceased to be Rs.3,000/- per month made by the learned tribunal.
15. In view of the principle of law settled by the Hon'ble Supreme Court of India, in the case of National Insurance Company Limited Vs. Pranay Sethi & Others (supra) certainly the learned tribunal erred by enhancing the income of the deceased by 50% towards future prospects but keeping in view that the age of the deceased was 35 years, 40% of the income should have been added towards future prospects.
16. In view of the principle of law settled in the case of Sarla Verma (SMT) And Others v. Delhi Transport Corporation And Another (supra) which has also been reiterated in the case of National Insurance Company Limited Vs. Pranay Sethi & Others (supra), since the deceased was having five dependents undisputedly, so 1/4th of the amount ought to have been deducted by the learned tribunal towards personal expenses of the deceased.
17. So far as the contention of the appellant regarding awarding of interest is concerned, it is a settled principle of law that unless there is any cogent reason, interest is to be awarded in a motor vehicle accident claims application from the date of filing of the application as has been 8 M.A. No. 366 of 2014 held by the Hon'ble Supreme Court of India in the case of Kajal v. Jagdish Chand & Others, reported in (2020) 4 SCC 413, para -31 of which reads as under:-
31. The High Court enhanced the amount of compensation by Rs 14,70,000 and awarded interest @ 7.5% p.a. but directed that the interest of 7.5% shall be paid only from the date of filing of the appeal.
This is also incorrect. We are constrained to observe that the High Court was not right in awarding interest on the enhanced amount only from the date of filing of the appeal. Section 171 of the Act reads as follows:
"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 in this behalf."
Normally interest should be granted from the date of filing of the petition and if in appeal enhancement is made the interest should again be from the date of filing of the petition. It is only if the appeal is filed after an inordinate delay by the claimants, or the decision of the case has been delayed on account of negligence of the claimant, in such exceptional cases the interest may be awarded from a later date. However, while doing so, the Tribunals/High Courts must give reasons why interest is not being paid from the date of filing of the petition. Therefore, we direct that the entire amount of compensation including the amount enhanced by us shall carry an interest of 7.5% p.a. from the date of filing of the claim petition till payment/deposit of the amount. (Emphasis supplied) So this Court is of the considered view that simple interest @ 6% per annum from the date of filing of the claim application to till the date of its actual payment be awarded.
18. So far as the contention of the appellant regarding awarding of compensation under conventional head is concerned, in view of the principle of law settled by the Hon'ble Supreme Court of India, in the case of National Insurance Company Limited Vs. Pranay Sethi & Others (supra), the claimants are entitled to a compensation of Rs.70,000/- under the conventional head.
19. In view of the discussions made above, adding 40% to the monthly income of the deceased, the same amounts to Rs.4,200/-. Deducting 1/4th of the amount towards personal expenses of the 9 M.A. No. 366 of 2014 deceased, his monthly income comes to Rs.3,150/- per month which comes up to Rs.37,800/- per annum. By applying the multiplier 16, the amount comes to Rs.6,04,800/-. Adding Rs.70,000/- under the conventional head, the total amount comes to Rs.6,74,800/-, less the amount already paid and the claimants are entitled to simple interest at the rate of 6% on the said compensation amount from the date of filing of the claim application to till the date of payment of the compensation.
20. In view of the discussions made above, this Court is of the considered view that the claimants are entitled to a total compensation of Rs.6,74,800/-, less the amount already paid with simple interest at the rate of 6% per annum from the date of filing of the claim application till the date of payment of the compensation amount and the opposite party no.2 -insurance company is liable to pay the said compensation. The sole point for determination is answered accordingly.
21. Under such circumstances, the impugned judgment and award is modified by directing the opposite party no.2 -Oriental Insurance Company Ltd. to pay a sum of Rs.6,74,800/- with simple interest at the rate of 6% per annum from the date of filing of the claim application till the date of payment of the compensation amount, less the amount already paid, to the claimants within three months from the date of this judgment.
22. The impugned judgment and award dated 30.06.2014 passed by the District Judge-cum-Additional Claim Tribunal -II, Chatra in Claim Case No.01 of 2013 is modified to the aforesaid extent only.
23. In the result, this appeal is allowed in part on contest but under the circumstances without any costs.
10M.A. No. 366 of 2014
24. 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 16th November, 2022 AFR/ Sonu-Gunjan/-