Jharkhand High Court
Rita Devi vs Chola M/S General Insurance Company ... on 16 March, 2021
Equivalent citations: AIRONLINE 2021 JHA 1374
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Miscellaneous Appellate Jurisdiction]
M.A. No. 498 of 2019
1.Rita Devi
2.Muskan Kumari
3.Komal Kumari
4.Banti Kumari
5.Ayus Kumar
6.Piyus Kumar .... .. ... Appellant(s)
Versus
1.Chola M/s General Insurance Company Limited.
2.Amit Kumar
3.Paran Mohli .. ... ... Respondent(s)
With
M.A. No. 61 of 2018
Chola M/S General Insurance Company Limited..... .. ... Appellant(s)
Versus
1.Rita Devi
2.Muskan Kumari
3.Komal Kumari
4.Banti Kumari
5.Ayus Kumar
6.Piyus Kumar
7. Amit Kumar
8.Paran Mohli .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........
For the Appellant(s) : Mrs. Nirupama, Advocate [M.A. No. 498 of 2019] Mr. Ashutosh Anand, Advocate [M.A. No. 61 of 2018] For the Respondent(s) : Mr. Ashutosh Anand, Advocate [M.A. No. 498 of 2019] Mr. Anil Kr. Sinha, Advocate [M.A. No. 61 of 2018] Mr. Sanjay Kumar, Advocate [M.A. No. 61 of 2018] ..........
04 /16.03.2021. I.A. No.9641 of 2019 [in M.A. No. 498 of 2019] Learned counsel for the appellants/claimants has submitted that there is delay of 602 days in preferring the appeal and for condonation of the same, I.A. No.9641 of 2019 has been preferred before this Court.
Learned counsel for the appellants has submitted that the claimants are the poor widow, three daughters and two sons of the deceased, as such, they could not prefer the appeal in time and apart from the interim compensation to the tune of Rs.50,000/-, the final compensation as awarded by the learned Tribunal has not been indemnified by the Insurance Company till date. As such, because of lack of knowledge, proper guidance and paucity of time, the appeal could not be preferred in time.
Mr. Ashutosh Anand, learned counsel appearing for the Insurance -2- Company has opposed the prayer and submitted that this impugned judgment/award has already been assailed by the Insurance Company in analogous appeal i.e. M.A. No.61 of 2018 in which I.A. No.10088 of 2019 has been filed under Order XLI Rule 5(5) CPC for stay of the execution case.
Learned counsel appearing for the Insurance Company has fairly submitted that till date, the awarded amount has not been indemnified by the Insurance Company.
Considering rival submission of the parties and looking into the facts and circumstances of the case as it is a benevolent legislation, the appeal preferred by the claimants with delay of 602 days is hereby condoned.
I.A. No.9641 of 2019 stands allowed and disposed of. M.A. No. 498 of 2019 & M.A. No.61 of 2018
1. Since both the aforesaid Misc. Appeals arising out of a common impugned award, as such, both are being heard together and disposed of by this common judgment.
2. Both the aforesaid Misc. Appeals arising out of common award dated 18.11.2017 passed by learned 2nd Addl. Sessions Judge-cum- Motor Accident Claim Tribunal, Deoghar in M.A. Claim Case No.29 of 2012.
3. Since the Insurance Company has also preferred the appeal against the same impugned award/judgment, as such, this Court is considering the appeal on merits.
4. Learned counsel for the Insurance Company has assailed the impugned judgment/award on various counts :-
(i)That the income of the deceased has been wrongly considered by the learned Tribunal though the Pay Slip of February, 2012 of the deceased has been marked as Exhibit-1 and Pay Slip of the deceased for the month of March, 2012 has been marked as Exhibit-2, without any deduction under the contribution of ESI Scheme and other statutory contribution to the tune of Rs.20,324/- per month;
(ii)That it is a case of head-on collision between two offending vehicles i.e. motorcycle on which the deceased (Prem Kishore Prasad) was traveling met with an accident with a Truck bearing Registration No.JH10Y-1005, coming from the opposite direction, but the leraned Tribunal has neither framed the -3- issue of contributory negligence nor deducted the amount.
(iii)That under the conventional head, excess amount has been paid contrary to the judgment passed by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 at Para 59.8.
(iv)That the interest has been awarded quarterly compoundable interest @10%, if the decretal amount is not paid within 30 days of the date of the order i.e. 18.11.2017, but as there is statutory provisions to prefer an appeal under Section 173 of the M.V. Act and the prescribed period of limitation is 90 days, as such, the learned Tribunal has committed grave error by granting quarterly compoundable interest @10% and that too after 30 days of the award which is not sustainable in the eyes of law, which ought to have been simple interest @7.5% per annum from the date of filing of the claim application till the date of indemnifying the award in view of the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation, reported in (2008) 4 JCR 79 SC at Para-14 which may profitably be quoted hereunder :-
"14. In the backdrop of the aforesaid legal position, we may now examine the facts of the present case. The accident in the present case had taken place on 1- 9-204 and the Tribunal had passed the award on 18-5-2005. Rate at which the interest is to be awarded would normally depend upon the bank rate prevailing at the relevant time. Since in T.N. State Transport Corpn. Ltd. decided in the month of April 2005, the prevailing rate of interest on bank deposits was found and held to be 7.5% per annum, we consider it appropriate to award the same rate of interest, as the same was the prevailing rate of interest on the date of the passing of the award i.e. 18-5-2005 in the present case. Consequently we hold that the appellants would be entitled to be paid interest at the rate of 7.5% from the date of application till the date of payment."
5. Learned counsel for the Insurance Company has further submitted that the Apex Court has considered the prevalent rate of interest of a Nationalized Bank on the date of accident or the date of filing of the claim application. In this case, the accident is of the year, 2012 and the award/judgment has been passed in the year 2017, as such, to remove the discrepancy, the Apex Court has quantified interest @7.5% per annum, as such, this Court may consider the same.
6. Mrs. Nirupama, learned counsel for the claimants/appellants has assailed the impugned award on the ground that the learned Tribunal has wrongly deducted personal and living expenses as 1/3rd instead of 1/4th in view of Para-30 of the Sarla Verma (Smt) & others vs. Delhi Transport -4- Corporation & another, reported in (2009) 6 SCC 121
7. Learned counsel for the claimants/appellants has further submitted that so far Future Prospect of the deceased is concerned, the same has not been considered in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 at Para 59.4, the claimants are entitled for 40% as Future Prospect.
8. Learned counsel for the claimants/appellants has further submitted that under conventional head, in the light of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra), 10% enhancement is to be made at every 3 years. Since the judgment was passed in the year 2017, as such, in view of the said judgment conventional amount may be given with 10% growth.
Learned counsel for the claimants/appellants has further submitted that deceased (Prem Kishore Prasad) left behind five minor children, as such, under the head of education, marriage, protection and guide, amount of RS.15 Lacs may be awarded.
9. Learned counsel for the owner of the offending vehicle has submitted that since the vehicle was duly insured, as such, he has nothing to argue in this case. The vehicle was duly insured and there is no allegation of any violation of terms and conditions of the policy, as such, he has nothing to say in this matter.
10. Considering rival submissions of the parties, in the light of the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 para 8 which may profitably be quoted hereunder:-
"8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
11. As such, this Court is computing fair and just compensation.
-5-There is no dispute that vehicle was not insured before the Insurance Company- Chola M/s General Insurance Company Limited and the deceased lost his life at the age of 32 years while employed in a private company, Mezzo Clothing Pvt. Ltd., A-3, Sector- 58 Noida- 201301 as Supervisor. The Police case has been lodged as Jasidih P.S. Case No.105 of 2012 under Sections 279, 304A, 427 IPC against the Truck bearing Registration No.JH10Y-1005 and after investigation the charge-sheet has been submitted under Sections 279, 304A, 427 IPC against the driver [Paran Mohli, S/o Bhola Mohli, R/o Village- Dahar Bedi, P.O. + P.S. Chandramandih, District- Jamui (Bihar)]. No criminal case was instituted against the owner and driver of the motorcycle nor the charge-sheet was submitted showing him dead. Though in the pleading, contributory negligence has been pleaded in the written statement of the Insurance Company, but no evidence has been adduced, as such, this Court is not inclined to accept the contention raised by the learned counsel for the Insurance company with regard to contributory negligence.
12. So far the income of the deceased is concerned, Exhibit-1 and Exhibit-2 have never been challenged by the Insurance Company to be fake nor any evidence has been brought on record to substantiate that deceased had less income rather the witnesses, CW1 (Rita Devi), CW2 (Awadh Kishore Prasad) and CW3 (Raj Kishore Prasad) have adduced consistent evidence in support of the Exhibits 1 and 2. Since no contrary evidence has been brought on record by the Insurance Company, this Court is not inclined to accept the same as the same has also not been agitated by the Insurance Company before the learned Tribunal nor in its pleading nor by adducing any evidence in this regard.
13. So far under the conventional head and also on the point of interest are concerned, this Court accepts the contention raised by the learned counsel for the Insurance Company. So far with regard to other deductions i.e. transport allowance and the house allowance, the same is not acceptable to this Court, as the Apex Court has already held in the case of Pranay Sethi (supra) at Para 59.4 that only the component of tax is to be reduced.
14. Accordingly, the M.A. No.61 of 2018 stands disposed of.
-6-15. I.A. No. 1008 of 2019 filed for stay stands closed.
16. So far the appeal preferred by the claimants is concerned, this Court considered the contention raised by the learned counsel for the appellants to be justified in view of the deduction made under the heading of personal and individual expenses of the deceased. The learned Tribunal has wrongly deducted 1/3rd which ought to have been 1/4th in view of judgment passed by the Apex Court in the case of Sarla Verma (supra) at Para-30.
17. So far Future Prospect of the deceased is concerned, the claimants are entitled for 40% Future Prospect in view of judgment passed by the Apex Court in the case of Pranay Sethi (supra) at Para 59.4 and also in view of the judgment passed by the Apex Court in the case of Kirti & Anr. Etc. vs. Oriental Insurance Company Ltd. passed in Civil Appeal Nos.19-20 of 2021 decided on 05.01.2021.
18. So far multiplier is concerned, learned counsel for the appellants/claimants is justified that in view of Para 42 of the judgment passed by the Apex Court in the case of Sarla Verma (supra), the multiplier should be 16 as the deceased was aged about 32 years at the time of death on 22.04.2012, as such, deceased falls in the category of 31 to 35 years.
19. This Court also considers the income of the deceased to be Rs.20,324/- per month as consistent oral and documentary evidence have been brought on record by the claimants and since the salary is not under the taxable limit, as such, there shall not be any deduction under the Income Tax.
20. So far contention raised by the learned counsel for the claimants/appellants to raise conventional head @ 10% in every three years is concerned, the same is not acceptable to this Court as the impugned award has been passed on 18.11.2017 by the learned Tribunal and the Apex Court has also held the same in the year, 2017 in the case of Pranay Sethi (Supra), as such, contention raised by learned counsel for the appellants is of no consequences.
21. As such, the final computation of compensation is as follows:-
Income Rs.20,324 - per month Annual Income Rs.20,324 - x 12 = Rs.2,43,888 /- 40% Future Prospect Rs.2,43,888/- + Rs.97,555/- = Pranay Sethi (Supra) para 59.4 Rs.3,41,443/- -7-
1/4th Deduction towards personal and Rs.3,41,443/- minus (Rs.3,41,443/- x living expenses as the dependents are 1/4th) = Rs.2,56,082/-
6 Sarla Verma (Supra) para 30 Multiplier of 16 (as the deceased was Rs.2,56,082/- x 16 = Rs.40,97,312/-
in the age group of 31-35 years) Sarla
Verma (Supra) para 42
Conventional Head Rs.70,000/-
Pranay Sethi (Supra) para 59.8
Total Compensation Amount Rs.40,97,312/- + Rs.70,000/- =
Rs.41,67,312/-
22. Accordingly, claimants are entitled for the compensation amount of Rs.41,67,312/- with interest @7.5% per annum only from the date of filing of the claim application till the date of indemnifying the award.
As the Insurance Company has preferred the appeal within statutory time as such, compound interest 10% is not acceptable to this Court and the same is not in accordance with law.
23. Accordingly, the impugned judgment/award is modified to the aforesaid extent and M.A. No.498 of 2019 stands allowed.
24. However, the amount already paid by the Insurance Company shall be deducted from the final amount and the balance amount shall be paid by the Insurance Company to the claimants within a reasonable time, as the incident is dated 22.04.2012.
25. The statutory amount deposited by the Insurance Company before this Court while preferring the appeal vide M.A. No.61 of 2018 shall be remitted to the learned Tribunal by the learned Registrar General of this Court within a period of four weeks from today and the balance amount shall be paid within a reasonable period, as the accident is of the year 2012.
(Kailash Prasad Deo, J.) Sandeep/