Jharkhand High Court
Urmila Devi vs Ravi Shankar Dwivedi on 20 September, 2022
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Miscellaneous Appeal No. 371 of 2016
1. Urmila Devi
2. Prince Kumar
3. Gorav Kumar
4. Kuldip Saw
5. Nirashi Devi ....
PLAINTIFFS/APPELLANTS
- VERSUS-
1. Ravi Shankar Dwivedi
2. M/s Royal Sundoram Alliance Insurance Co. Ltd. Through Legal Manager,
201, Millennium City, Information Technology Partk, Unit No.T-2-2A,
Tower-II, Plot No. DN-62, Sector V, Salt Lake, Kolkata
... DEFENDANTS/ RESPONDENTS
With
M.A. No. 372 of 2016
1. Sushila Devi
2. Rakhi Kumari
3. Vidiya Kumari
4. Gobardhan Mahato
5. Khubi Devi .... PLAINTIFFS/APPELLANTS
-V E R S U S -
1. Ravi Shankar Dwivedi
2. M/s Royal Sundoram Alliance Insurance Co. Ltd. Through Legal Manager,
201, Millennium City, Information Technology Partk, Unit No.T-2-2A,
Tower-II, Plot No. DN-62, Sector V, Salt Lake, Kolkata
...DEFENDANTS/ RESPONDENTS
CORAM: HON'BLE DR. JUSTICE S. N. PATHAK
For the Appellants : Mr. P.K. Mukhopadhyayc, Advocate.
For the Resp. No.2 in both appeals : Mr. Ashutosh Anand, Advocate
------
10/20.09.2022 The Miscellaneous appeal No.371/2017 arises out of order/Award dated 31.07.2015, passed by learned District Judge-III-cum-M.A.C.T., Dhanbad in Title (M.V.) Suit No.183 of 2012 whereby and whereunder claim application filed by the claimants has been allowed, however, a meagre amount of compensation of Rs.6,16,400/- was awarded against the death of Anil Kumar Sao 2 and as such, for enhancement of the awarded amount, this appeal has been preferred.
2. The Miscellaneous appeal No.372/2017 arises out of order/Award dated 31.07.2015, passed by learned District Judge-III-cum-M.A.C.T., Dhanbad in Title (M.V.) Suit No.184 of 2012 whereby and whereunder claim application filed by the claimants has been allowed, however, a meagre amount of compensation of Rs.6,54,000/- was awarded against the death of Sanjay Kumar Mahato and as such, for enhancement of the awarded amount, this appeal has been preferred.
3. Two persons were died in the same accident and their legal heirs have preferred separate suit before the learned Motor Vehicles Accident Claim Tribunal and also these appeals. Since the common issues are involved in these appeals, they are being disposed of by this common order.
4. The facts as alleged in the original claim application preferred by the claimants/appellants is that on 03.05.2012 at about 7:30 p.m. the deceased Anil Saw along with his friend Sanjay Kumar (deceased) were going by his motor cycle to Bhuiphore Mandir to attend in a marriage ceremony. When they reached near Vidya Niketan School, P.S. Barwadda, Dist Dhanbad, all of a sudden, a Truck bearing Registration No. JH-10T-7445, which was being driven rashly and negligently dashed the motorcycle. As a result, Anil Saw and his friend Sanjay Saw got serious injuries and they were brought to PMCH, Dhanbad for treatment, where the doctor declared them dead. The accident took place due to rash and negligent driving of the driver of the offending vehicle. Hence, the legal heirs of Anil Kumar Saw and Sanjay Kumar Mahato have preferred separate claim applications before the learned Motor Vehicle Accidents Claims Tribunal for adequate compensation.
2. After issuance of notice, owner of Vehicle of JH-10T-7445 and Insurance Company (Insurer of the said vehicle) appeared and filed their written statement. In the written statement, owner of the vehicle denied the accident and also contended that the deceased died on account of their own fault and this is a case of greater contributory negligence of the driver of the motor cycle and also insurer of the motor cycle is a necessary party. He also contended that the fitness certificate of the offending vehicle i.e., truck was valid up to 22.08.2012, permit of vehicle was valid up to 02.11.2014 and the said truck was validly insured with defendant No.2-Insurance Company. He further contended that all the vehicular documents of the truck are valid and as such, defendant No.2- 3 Insurance Company is liable to indemnify this defendant from all kinds of liability.
3. The insurance Company/Defendant No.2/Respondent No.2/Insurer in his written statement stated that suit is not maintainable. This defendant admitted that the vehicle i.e., truck was covered at the material time under the policy of insurance and this policy was valid up to 10.08.2012. It is also contended that driver of the said vehicle was not holding a valid and effective driving license at the time of accident.
4. On the basis of pleadings of the parties, learned Tribunal framed seven issues and after examining records of the case, learned Tribunal discussed the issues in details and claim applications filed by the claimants were allowed separately and a sum of Rs.6,16,400/- with interest @ 6 % was directed to be paid by the Respondent No.2-Insurance Company, in favour of claimants in Title (M.V.) Suit No.183 of 2012 with certain terms and conditions as mentioned in the Award and a sum of Rs.6,54,000/- with interest @ 6 % was directed to be paid by the respondent No.2-Insurance Company in favour of the claimants in Title (M.V.) Suit No.184 of 2012 with certain terms and conditions.
5. Being aggrieved by and dissatisfied by the Award dated 31.07.2015, passed by learned District Judge-III-cum-M.A.C.T., Dhanbad in Title (M.V.) Suit No.183 of 2012 and order/Award dated 31.07.2015, passed by learned District Judge-III-cum-M.A.C.T., Dhanbad in Title (M.V.) Suit No.184 of 2012, the appellants/claimants have preferred these appeals being M.A. No.371/2017 & 372/2017 respectively for enhancement of compensation amount.
6. Mr. P.K. Mukhopadyay, learned counsel appearing for the appellants- claimants submits that though the compensation has been awarded by the learned Tribunal, but the same is not as per the law laid down by the Hon'ble Apex Court in case of National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680. He further submits that since it is a beneficial legislation, the Court ought to have considered the same and would have adequately compensate the claimants in view of death of sole bread earner. He further submits that as per the ratio decided by the Hon'ble Apex Court, the compensation amount has to be re-calculated since the learned Tribunal has not awarded Rs.70,000/- under the conventional head and future prospects @ 40 % of the income, respectively. He further submits that it is not a case of contributory negligence and the learned Tribunal has wrongly deducted 40 % of the total awarded compensation in both the cases on account of contributory 4 negligence and as such, the claimants/appellants are entitled for total compensation. He further stated that interest @ 6 % p.a. from 17.07.2013 has also been wrongly awarded by the learned Tribunal, which ought to have been @ 7.5 % p.a. from the date of filing of the claim application before the learned Tribunal in view of law laid down by the Hon'ble Apex Court in case of Dharampal & Ors. Vs. U.P. State Road Transport Corporation reported in (2008) 12 SCC 208.
7. On the other hand, Mr. Ashutosh Anand, learned counsel for the respondent No.2/ Insurance Company of the offending vehicle vehemently opposes the contention of the learned counsel for the appellants and submits that the learned Tribunal has rightly awarded the compensation amount, there is no illegality or infirmity. He further submits that the learned Tribunal has considered every aspect of the matter and while deciding the Issue No.5, comes to a conclusion that it is a case of contributory negligence since the motor cycle driver was also driving the vehicle rashly and negligently and the accident has occurred due to his contributory negligence. It has not come in the evidence as to whether this is a case of Head on Collision or not ? The driver of motor cycle was not holding any driving license and also not wearing helmet and as such, learned Tribunal held that the motor cycle driver was also rash and negligent and the accident occurred due to his contributory negligence also and accordingly ratio of negligency between the motor cycle driver and offending truck driver should be 40:60 respectively. Therefore, rightly 40 % of the total compensation has been deducted and 60 % was directed to be paid from the total awarded amount. Learned counsel vehemently opposes the contention of the learned counsel for the appellants that appellants are entitled for 40 % under the head of future prospects and Rs.70,000/- under the conventional head since the Pranay Shethi (supra) judgment came after the Award.
8. I have heard counsel for both the parties and perused the records. From perusal of documents on record, evidences led as well as findings of the learned Tribunal, I find that the learned Tribunal has rightly decided and held that the motor cycle driver was also rash and negligent and the accident has occurred due to his contributory negligence also. The ratio of negligency between the motorcycle driver and offending truck driver should be 40:60 respectively. Since the plaintiffs have brought this case against one of the offending vehicles i.e., the offending truck having registration No.JH-10T7445, they are entitled for 60 % of the claim amount and there is no illegality or infirmity regarding 60% entitlement of the claim 5 amount to the appellants. Further, it was also held that the insurer has taken plea of breach of condition of insurance policy, but it has not adduced any evidence in this regard, and as such, rightly the liability has been fixed upon the Insurance Company. So far as claim by the appellants regarding future prospects and conventional heads are concerned, the arguments advanced by learned counsel appearing for the respondents is totally misconceived since it is a case of death and appellants have lost their respective sole bread earner and the beneficial legislature is made for the society as a whole and its implementation may be both perspective as well as retrospective and as such, the case of the appellants has to be considered for enhancement under the head of future prospects and conventional head in view of law laid down by the Hon'ble Apex Court in case of Pranay Sethi (supra), wherein it has been held thus: -
59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
9. Further, the learned Tribunal has erred in law while granting the interest @ 6 % per annum from 17.07.2013, the same ought to have been given from the date of filing of the claim application @ 7.5% per annum in view of law laid down by the The Hon'ble Apex Court in case of Dharampal v. U.P. SRTC (supra)
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 1-9-2004 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. [(2005) 6 SCC 236 : 2005 SCC (Cri) 1436] 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 6 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.
10. In view of the above discussion in foregoing paragraphs and law laid down by the Hon'ble Apex Court, this Court is of the considered view that the compensation as awarded by the learned Tribunal needs some modification and the compensation amount are assessed under various heads as follows:-
For the appellants in M.A. No.371/2016:-
Sr. Heads Calculation Amount
No
1. Monthly Income Rs.8000/-p.m.
2. Future Prospects 40% of income Rs.3200/-
3 Yearly Income (Rs.8000+3200) x12 Rs.1,34,400/-
4. Deduction as 1/3rd of 1,34,400 1,34,400-44800
personal and =Rs. 44,800 =Rs.89,600/-
living
expenses(1/3rd )
5. Selection of Rs.89,600 x16 Rs.14,33,600/-
Multiplier
6. Contributory 60 % of 14,33,600/- Rs.8,60,160/-
Negligence
/Liability
6. Conventional Rs.70,000 (8,60,160+70,000)
Head =9,30,160/-
For the appellants in M.A. No.372/2016
Sr. Heads Calculation Amount
No
1. Monthly Income Rs.8000/-p.m.
2. Future Prospects 40% of income Rs.3200/-
3 Yearly Income (Rs.8000+3200) x12 Rs.1,34,400/-
4. Deduction as 1/3rd of 1,34,400 1,34,400-44800
personal and =Rs. 44,800 =Rs.89,600/-
living
7
expenses(1/3rd )
5. Selection of Rs.89,600 x17 Rs.15,23,200/-
Multiplier
6. Contributory 60 % of 15,23,200/- Rs.9,13,920/-
Negligence
/Liability
6. Conventional Rs.70,000 (9,13,920+70,000)
Head =9,83,920/-
11. In the facts and circumstances mentioned hereinabove, the Award of the learned Tribunal are modified and the appellant/ Insurance Company is directed to pay Rs.9,30,120/- to appellants/claimants in M.A. No.371/2016 (as calculated hereinabove) and Rs.9,83,920/- to appellants/claimants (as calculated hereinabove) respectively in equal shares with interest @ 7.5 % per annum from the date of filing of the claim to its realization after deducting the amount paid already to the apellants, within a period of eight weeks from the date of receipt/ production of a copy of this order.
12. Let the lower court record, if any, be returned to the court concerned.
13. Resultantly, appeals stand allowed.
(Dr. S.N. Pathak, J.) Punit/-