Jharkhand High Court
Vimla Devi & Another vs The National Insurance Company Limited ... on 1 December, 2020
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 109 of 2013
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Vimla Devi & Another .... ..... Appellants
Versus
The National Insurance Company Limited & Another
.... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
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For the Appellants : Mr. Rajesh Lala, Advocate,
For the Respondent No. 1 : Mr. Manish Kumar, Advocate.
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11/01.12.2020.
Heard, learned counsel for the appellants, Mr. Rajesh Lala and learned counsel for the National Insurance Company, Mr. Manish Kumar.
Learned counsel for the appellants has assailed the impugned award dated 14.09.2012 passed by learned District & Additional Sessions Judge- I- cum - M.A.C.T. Judge, Koderma in Title (M.V.) Claim Case No.27/2008, whereby the learned Tribunal has granted 50% of the award against the National Insurance Company Limited, which comes to the tune of Rs.1,03,000/-, which shall be paid within 30 days from the date of order, failing which, the Insurance Company has to make payment with interest @ 9% per annum from the day of the order.
Learned counsel for the appellants has assailed the impugned award on the ground that deceased Sanjay Yadav died on 02.04.2008 at the age of 20 years while working as a cleaner in truck bearing registration No. JH-12A-0092 having monthly income of Rs.3,000/-.
Learned counsel for the appellants has submitted that truck No. JH- 12A-0092 collided with truck No. JH-02J-3380, which was insured before the National Insurance Company, but the Tribunal has only granted 50% liability upon the said truck contrary to the finding recorded by the learned Tribunal in paragraph-10 :- "From perusal of the evidence and material available on record, it appears that accident took place due to rash and negligent driving by the driver of vehicle no. JH-02J-3380."
However, subsequent observation has been made by the learned Tribunal in paragraph-13 :- "From perusal of the FIR and charge sheet, it appears that it is contributory negligence of both the trucks. Therefore, both the trucks are liable equally for the claim".
-2-Learned counsel for the appellants has submitted that further grounds to enhance the award is that deceased died at the age of 20 years, the multiplier should have been 18 in view of Sarla Verma Vrs. Delhi Transport Corporation reported in (2009) 6 SCC 121 (Para-30), which has been wrongly computed by the learned Tribunal considering multiplier to be 11.
Learned counsel for the appellants has submitted that so far the personal expenses is concerned, though the family is constituted of three persons and as such, instead of 50% deduction, it should have been 1/3 rd as personal and living expenses for the deceased.
Learned counsel for the appellants has submitted that under the conventional head, the Tribunal has awarded less amount, which ought to have been Rs.70,000/- in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 (para-59.8) i.e. loss of estate Rs.15,000/-, loss of consortium Rs.40,000/- and funeral expenses Rs.15,000/-.
Learned counsel for the appellants has submitted that 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) the future prospect ought to have been 40% for the self-employed or on a fixed salary of the deceased below 40 years.
Learned counsel for the appellants has thus submitted that interest has been granted @ 9% per annum from the date of order instead of from the date of filing of the application, as such, compensation amount may be enhanced.
Learned counsel for the Insurance Company, Mr. Manish Kumar has submitted that learned Tribunal has rightly passed the order directing the National Insurance Company to pay 50% as deceased died in an accident while travelling in the truck bearing registration No. JH-12A- 0092, which stands in the name of his father Jogeshwar Yadav, which will be apparent from the evidence from P.W.-2, Arjun Yadav as referred in paragraph-10 of the impugned award.
-3-Learned counsel for the Insurance Company has further submitted that even if deceased is considered to be 3 rd party in accident then also because this, claimant himself has not impleaded the another offending truck which stand in his own name as because either the truck was not insured or he want to shrunk from the liability, as such, the learned Tribunal has rightly awarded 50% towards the National Insurance Company and another 50% has to be paid by the another truck i.e. JH- 12A-0092 or its insurer. Since there was contributory negligence of both vehicle, but claimant has not been impleaded then as a party though FIR and charge-sheet have been submitted against the driver of both the trucks and the contributory negligence has been rightly pointed out by the learned Tribunal.
So far the multiplier is concerned, learned counsel for the respondent no. 1 has fairly submitted that the deceased was aged of 20 years, as such, in view of the judgment passed by the Apex Court the multiplier ought to have been 18 in view of Sarla Verma (Supra).
Learned counsel for the respondent no. 1 has further submitted that in view of the judgment passed by Apex Court in the case of Sarla Verma (Supra) (Para-30) since the deceased was a bachelor and the claimants are parents, the learned Tribunal has rightly deducted 50% towards personal and living expenses.
Learned counsel for the respondent no. 1 has further submitted that under the conventional head, the claimants are entitled for Rs. 70,000/- but the learned Tribunal has paid less amount.
Learned counsel for the respondent no. 1 has further submitted that future prospect ought to be 40%, which has not been given by the learned Tribunal. It has further been submitted that interest should be 7.5% from the date of filing of the application in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation reported in 2008 (4) JCR 79 SC.
Learned counsel for the respondent no. 1 has further submitted that this claim application was filed in the year 2008 before the Tribunal, which has been adjudicated in the year 2012. The appeal has been filed -4- before this Court in the year 2013 and remain pending till date, as such, the Tribunal has rightly passed the interest from the date of award.
In reply to this, learned counsel for the appellants has submitted that there is no deliberate laches on the part of the appellants for which appellants should not suffer, rather the accident took place on 02.04.2008, the claim application was preferred in the year 2008 and there is no finding by the Tribunal that it was delayed because of the laches on the part of the claimants. The claim application was decided in the year 2012. The appeal was preferred within time in the year 2013 and as such, the claimants should not suffer because of the pendency of the claim application and Miscellaneous Appeal before this Court.
Under the aforesaid circumstances, this Court may consider that interest should be granted from the date of filing of the claim application in view of provisions under Section 171 of the Motor Vehicles Act and the judgment passed by the Apex Court in the case of Dharmpal and Sons (Supra).
After hearing the learned counsel for the parties, this appeal is on two parts: first part is with regard to the computation of compensation where there is no dispute between the parties and that has been laid down by Apex Court, as such, the computation shall be done as follows:-
The income of the deceased is Rs.3,000/- per month. 40% future prospect in view of judgment of Pranay Sethi (Para-59.4) i.e. Rs. 3,000/- + Rs. 1200/- = Rs. 4200/-. Thus, annual income comes to Rs. 4200/- X 12 = Rs.50,400/- per annum. After 50% deduction towards the personal and living expenses it comes to Rs. 50,400/- X 1/2 = Rs. 25,200/-. After application of multiplier of 18, the income comes to Rs. 25,200/- X 18 = Rs. 4,53,600/-, after adding amount of Rs.70,000/- under the conventional head in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Para-59.8) i.e. loss of estate Rs.15,000/-, loss of consortium Rs.40,000/- and funeral expenses Rs.15,000/- i.e. total compensation amount comes to Rs. 4,53,600/- + Rs. 70,000/- = Rs. 5,23,600/- along with interest @ 7.5% per annum from the date of filing of the claim application before the Claim Tribunal.-5-
The second part is with regard to the liability payable of National Insurance Company. It appears that learned Tribunal has held that FIR and charge-sheet are against both the driver of both Offending Vehicles and there is a contributory negligence. The contributory negligence is 50% of both, as such, the observation made by the learned Tribunal in paragraph- 10 is not acceptable to this Court in view of the submissions made by the learned Tribunal itself in paragraph-13 where the learned Tribunal has held that from perusal of the FIR and the charge-sheet, it appears that it is a contributory negligence of both the trucks and both the trucks are liable equally for the claim. It appears that truck bearing registration No. JH-
12A-0092 or its insurer have not been impleaded as a party by the claimants. There is dispute with regard to the controversy that claimant himself is the owner of the said truck and probably the truck was not insured.
Under the aforesaid circumstances, this Court directs the counsel for the appellants to file an affidavit within a period of two weeks so as to adjudicate the liability upon National Insurance Company and upon the owner / insurer of JH-12A-0092. The affidavit must be filed within a period of two weeks.
Put up this case on 15.12.2020.
(Kailash Prasad Deo, J.) Sunil-Jay/-