Jharkhand High Court
Sohagi Devi @ Sushila Devi vs Mr. Mahatam Giri on 28 January, 2020
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 273 of 2017
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1. Sohagi Devi @ Sushila Devi, w/o late Govind Ram @ Govind Pandit
2. Munia Devi @ Sulekha Devi, w/o Ashok Pandit @ Asok Ram
3. Rajan Kumar (minor)
4. Rajkumar (Minor) Appellant nos.3 and 4 are minor and represented through their mother, appellant no.1 All are r/o village Koriyadih, P.O. and P.S. Nimiadih, District-Giridih and at present residing at village Godhar, P.O. and P.S. Kenduadih, District-Dhanbad.
...... Appellants Versus
1. Mr. Mahatam Giri, s/o not known, r/o Shivshakti Nagar, P.O. and P.S. Chas, District-Bokaro.
2. Branch Manager, United India Insurance Co. Ltd., Katras Road, P.O., P.S. & District-Dhanbad. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Appellants : Mr. Sabyasanchi, Advocate
For the Respondent no.2 : Mr. Uday Choudhary, Advocate
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06/28.01.2020 The claimants are the appellants before this Court. The claimants have preferred this Appeal for enhancement of the award dated 28.01.2017 passed in Title (M.V.) Case No.270/2011 by learned District Judge-XIII-cum-Presiding Officer, Motor Vehicles Accident Claims Tribunal, Dhanbad whereby a compensation of Rs.4,60,000/- has been awarded with simple interest @ 6% per annum from the date of admission of the claim application i.e. 24.05.2012 till realization of the said amount.
2. Learned counsel for the appellants has submitted that less compensation has been paid to the claimants contrary to the law. Learned counsel for the appellants has further submitted that the Tribunal has wrongly considered the income of the deceased namely Ashok Pandit @ Ashok Ram as Rs.3000/- which is contrary to the materials brought on record. The learned Tribunal ought to have considered the evidence brought on record, in view of the judgment passed by the Apex court in the case of Chameli Devi vs. Jivrail Mian & Ors.; 2019 (4) TAC 724 (SC) where the Apex Court has considered Rs.5000/- as income of the deceased who was a carpenter in absence of any documentary evidence, as such, this Court may also consider atleast Rs.5000/- as the income of the deceased, who was owner of Maruti Van and agriculture having earning of Rs.12,000/- per month. Learned counsel for the appellants 2 has further submitted that the claimants are also entitled for future prospect of the deceased as he was aged about 40 years and in view of the same, the future prospect of the deceased ought to have been given as 25% in view of the judgment of Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi & Ors. as reported in (2017) 16 SCC 680, para-59.4. Learned counsel for the appellants has further submitted that the Tribunal has only awarded Rs.55,000/- under the conventional head which ought to have been Rs.70,000/- in view of the judgment of Apex Court in the case of Pranay Sethi (supra) at para-59.8. Learned counsel for the appellants has further submitted that interest has been awarded @6% per annum which is contrary to the judgment of the Apex Court in the case of Dharmpal and Sons vs. UP State Road Transport Corporation; 2008 (4) JCR 79 SC which ought to have been @7.5% simple interest per annum from the date of filing of the application till its payment. Learned counsel for the appellants has further submitted that Hon'ble Apex Court has held that the interest ought to have been the rate of interest of a Bank prevalent on the date of award or 7.5% simple interest from the date of filing of the claim application till the payment is made, as such, learned counsel for the appellants has submitted that the same may be enhanced accordingly.
3. Learned counsel for the Insurance Company has submitted that the Tribunal has given right of recovery against the owner but the owner has not appeared till date, as such, the right may remain intact as passed by the learned Tribunal. Learned counsel for the Insurance Company has further submitted that the date of grant of interest has been assigned by the learned Tribunal because of default on part of the claimants as such, the same has been granted from the date of admission of the claim application i.e. 24.05.2012 which should not be changed from the date of filing of the claim application i.e. 13.02.2011. The Tribunal has also not considered contributory negligence of both the vehicle or violation of terms and conditions of the Insurance policy.
4. Heard, learned counsel for the appellants-claimants as well as Insurance Company. By impugned award the learned Tribunal has directed the Insurance Company to satisfy the award and liberty was given to recover the same on proving that owner of the offending vehicle has violated the terms and conditions of the Policy. Neither the Insurance Company nor the owner of the vehicle has preferred any appeal against the impugned award, as such, the 3 conditional right of recovery given in favour of the Insurance Company shall remain intact.
Under the aforesaid circumstances, this Court deems fit and proper to dispose of this application as in any case the claimants cannot be allowed to suffer more and more because of the latches on the part of the Insurance Company or on the part of the Owner when Insurance Company has been given right to recover on proving that owner of the offending vehicle has violated the terms and conditions of the policy.
5. The claimants are mother, wife and two minor sons of the deceased Ashok Pandit @ Ashok Ram, who was the owner cum driver of Maruti Van No.BR 17F 0048. On 08.02.2010 at around 7.30 P.M. while he was coming to his house, at NH-2 crossing under Nimiyaghat Police Station in the district of Giridih, one Tata Sumo Victa bearing Registration No.JH-09L-3343 coming from Dhanbad side in rash and negligent manner came and dashed the vehicle of the deceased due to which the vehicle Turtle and person sitting in the vehicle sustained injury. The injured was referred to P.M.C.H, Dhanbad and on 11.02.2010 Ashok Pandit was referred to RIMS, Ranchi where he died on the same date in the night. The Police lodged F.I.R. on the basis of statement of Bhagirath Mahto against the driver of the Tata Sumo Victa bearing registration no.JH-09L-3343 vide Nimiyaghat P.S. Case No.17/10 dated 08.02.2010 under sections 279, 337, 338, 427 of the IPC and on 26.04.2010 section 304-A IPC has been added. After investigation, the police submitted chargesheet against the driver of the offending vehicle Tata Sumo Victa bearing registration no.JH- 09L-3343 namely Sampoornanand Giri under sections 279, 337, 338, 427 and 304A of the IPC. The deceased was aged about 40 years and was driving the vehicle and apart from this had a business and earning of Rs.12,000/-. Four persons are dependent upon the deceased such as mother, wife and two minor children. The offending vehicle belongs to one Mahatam Giri which was insured before the United India Insurance Company Limited vide policy no.210501/31/09/01/0001738 for the period 30.05.2009 to 29.05.2010 and the vehicle was driven by Sampoornanand Giri having driving license which has been brought on record as Exhibit-8. The owner of the vehicle has appeared before the learned Tribunal and has filed written statement stating therein that his vehicle was registered before the United India Insurance Company Limited, at the time of accident, the claimants are entitled for compensation against the 4 respondent no.2 (insurer).
The Insurance Company has filed written statement raising various issues and also that the defendant no.1 owner of the offending vehicle has not produced the permit, fitness certificate, registration certificate and the driving license of the driver, as such, without verification under section 64 v b of the Insurance Act, 1938, the Insurance Company is entitle to recover the compensation under section 149 of the Motor Vehicles Act.
The Tribunal on the basis of the pleading of the parties framed seven issues which are as follows:
(i) Is there any cause of action for the present suit as against the defendants?
(ii) Is the present suit maintainable in its present form?
(iii) Whether the death of deceased caused due to road Traffic Accident?
(iv) Whether the accident cause due to rash and negligent driving of the vehicle vide Regd. No.JH-9L-3343(Sumo victa)?
(v) Whether the driver of the vehicles involved in the accident had a valid and effective driving licence at the time of accident?
(vi) Whether the plaintiff entitled for compensation as claimed?
(vii) To what other relief or reliefs if any plaintiffs entitled?
The claimants have examined six witnesses. Somar Pandit has been examined as C.W.1, Meghlal Mahto has been examined as C.W.2, Uttim Chandra Pandit has been examined as C.W.3, Sulekha Devi @ Munia has been examined as C.W.4, Bhagirath Mahto has been examined as C.W.5 and Vinod Prasad has been examined as C.W.6. The Claimants have also produced the documents such as cash memo of Krilospher Pump Set which is Exhibit-1, the inquest report of the deceased Ashok Pandit @ Ashok Ram is Exhibit-2, the evidence of the witnesses namely Lakhan Pandit, Uttim Chandra Pandit and Vinod Pandit recorded in G.R. Case No.262/2010 as Exhibit-3, 3/1 and 3/2, F.I.R. of Nimiyaghat P.S. Case No.17/10, G.R. Case No.262/10 is Exhibit-4, the chargesheet as Exhibit-5, the post mortem report of the deceased as Exhibit-6, the insurance certificate of the offending vehicle Tata Victa Sumo as Exhibit-7 and the driving licence of the offending vehicle as Exhibit-8.
6. No evidence, oral or documentary has been brought on record by the defendant no.1, owner of the offending vehicle.
The defendant no.2 Insurance Company has not examined any witnesses 5 but has produced the insurance policy which has been marked as Exhibit-A. The Tribunal has not framed any issue with regard to contributory negligence or with regard to the violation of terms and conditions of the insurance policy by the owner of the offending vehicle, as such, this Court in absence of any pleading is not accepting the argument of the learned counsel for the Insurance Company at this stage of appeal wiothout any leave under section 170 of the M.V. Act though the Tribunal has given right to recovery in favour of the Insurance Company from the owner of the offending vehicle if the insurance company is able to prove that such violation has been done by the owner of the offending vehicle which entitled them under section 149 of the Motor Vehicles Act to recover the same. The Insurance Company has also not preferred any appeal. Under the aforesaid circumstances, this Court only confines the prayer made by learned counsel for the claimants for enhancement of the award.
From the evidence brought on record, it appears that the deceased was the owner of the Maruti Van, apart from that, he was doing a business and agriculture business and to that effect, he has brought a document on record as Exhibit-1 i.e. cash memo with regard to Krislospher Pump set.
7. Under the aforesaid circumstances, this Court has no doubt that the Tribunal has wrongly considered the income to be Rs.3000/- which ought to have been Rs.6000/- as the Apex Court has considered the income of carpenter who has failed to produce his salary certificate as Rs.5000/- in the case of Chameli Devi (supra). The deceased was admittedly owner of a Maruti Van, apart from that he had a business and agriculture, as such, his income cannot be less than Rs.6000/-. The deceased was in the age group of 40 years, as such, in view of the judgment of Pranay Sethi (supra), para-59.4, the deceased was self- employed, as such his future prospect is considered to be 25%. The deductions towards personal and living expenses shall be 1/4 th as the family comprises of five persons including the deceased in view of the judgment of Apex Court in the case of Sarla Verma Vs. Delhi Transport Company as reported in (2009) 6 SCC 121.
8. The deceased was in the age group of 40 years, as such, multiplier of 15 has rightly been applied by the learned Tribunal and Rs. 70,000/- under the conventional head is to be given (Rs.15,000/- as funeral expenses, Rs.15,000/- as loss of estate and Rs.40,000/- as loss of consortium) in view of the judgment 6 of Pranay Sethi (supra), which has been given as Rs.55,000/- by the learned Tribunal. The final amount shall carry an interest @7.5% in view of the judgment of Dharmpal (supra) but the interest shall be payable from the date of admission of the claim case i.e. 24.05.2012 as held by the learned Tribunal. Though the application was filed on 13.12.2011 but that remained pending because of negligence on the part of the claimants, as such, this submission of learned counsel for the Insurance Company is accepted and the interest shall be payable from the date of admission of application on the final amount. Thus the new calculation chart is as follows:
Income Rs.6,000/-
25% future prospect Rs.6000 + 1500= 7500/-
Annual Income Rs.7500 x 12= Rs.90,000/-
1/4th deduction towards personal and Rs.90,000 x 1/4= Rs.22,500/-
living expenses
Total income Rs.90,000-22,500= Rs.67,500/-
Multiplier of 15 (as the deceased was Rs.67,500 x 15= Rs.10,12,500/-
in the age group of 40 years)
Conventional Head Rs.70,000/-
Total compensation amount Rs.10,12,500 + 70,000= Rs.10,82,500/-
Interest Rs.10,82,500/- along with simple
interest @7.5% as mentioned above.
As such amount of compensation is enhanced to Rs. 10,82,500/- along with interest @7.5% per annum but the interest shall be payable from the date of admission of the claim case i.e. 24.05.2012 as held by the learned Tribunal.
9. Accordingly, instant Miscellaneous Appeal is ALLOWED in that aspect of the matter.
10. It is expected that the Insurance Company shall satisfy the awarded amount within a period of 90 days from today as it is benevolent legislation and the claimants are suffering since 2011.
(Kailash Prasad Deo, J.) Pallavi /