Jharkhand High Court
Sri Shiva Chand Prasad Agarwal @ Shiva ... vs The New India Assurance Company Limited ... on 3 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 M.A. 92 of 2008
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 92 of 2008
(Against the Judgment and Award dated 18.12.2007 passed by Additional
District cum M.A.C.T. Judge, FTC, Vth, Dhanbad in Title (M.V.) Claim Case
No. 51 of 2005)
1. Sri Shiva Chand Prasad Agarwal @ Shiva Nandan Pd. Agarwal, son of
Late Govind Prasad Sao
2. Smt. Puspa Devi, wife of Sri Shiva Chand Prasad Agarwal
Both residents of village Amalkhori, P.O.- Singhdih, P.S.- Topchanchi
(Hariharpur), Distirct- Dhanbad
...... Applicants/ Appellants
Versus
1. The New India Assurance Company Limited having its office at 7, G.C.
Avenue, Branch officer Kolkata (West Bengal) - 700013
..... Opp. Party no. 2/ Respondent
2. Sri Athar Hussain, son of J. Hussain, resident of 98, S.N. Roy Lane, Kolkata 700007 (West Bengal) ..... Opp. Party no. 1/ Proforma Respondent For the Appellants : Mr. Birendra Kumar, Adv.
For the Respondent no. 1 : Mr. Basav Chatterjee , Adv.
PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. No one turns up on behalf of respondent no. 2 in spite of repeated call, accordingly, this appeal is heard ex-parte against respondent no. 2.
2. This Miscellaneous Appeal has been preferred against the judgment and award dated 18.12.2007 passed by Additional District cum M.A.C.T. Judge, FTC, Vth, Dhanbad in Title (M.V.) Claim Case No. 51 of 2005 whereby and whereunder, learned court below has awarded a total compensation of Rs. 1,00,000/- and as Rs. 50,000/- was paid under Section 140 of the M.V.Act, 1988, hence, directed the opposite party no. 2- insurance company to pay Rs. 50,000/- more with interest @ 12% from date of filing of the claim petition till payment.
3. The brief facts of this case is that the claimants are the legal representatives of the deceased minor Jyoti Kumari who died in the 2 M.A. 92 of 2008 fatal road accident, which occurred on 12.12.2003 at about 10.30 AM as the said Jyoti Kumari was crossing the road on the way to her school, the offending vehicle bearing registration no. WB-25A-1318 being rashly and negligently driven at high speed, dashed Jyoti Kumari, who died at the spot due to the injuries caused in the said accident. Jyoti Kumari was seven years of age at the time of accident and in their written statement, the opposite party no. 2- insurance company pleaded that the deceased was crossing the road carelessly and challenged the maintainability of the claim petition on various technical grounds and further pleaded that the claim of compensation sought for is excessive.
4. On the basis of the rival pleadings, the learned tribunal settled the following eight issues:-
1. Whether the case is maintainable in its present from ?
2. Whether the driver of truck no. WB- 25A-1318, was driving the same rashly and negligently ?
3. Whether the deceased died due to road traffic accident ?
4. Whether at the time of accident the driver of truck no. WB- 25A-1318 had valid and effective driving license ?
5. Whether the vehicle insured at the time of accident ?
6. Whether at the time of accident the offending vehicle had valid and effective road permit ?
7. Whether the claimants entitled for compensation sought for ?
8. Whether the claimants entitled for any other relief or reliefs ?
5. In support of their case, the claimants examined four witnesses and proved seven documents which were marked Exhibits.
6. Learned tribunal first took up issue nos. 2 and 3 and came to the conclusion that the driver of the offending truck was driving the offending truck rashly and negligently at high speed and caused the accident. Thereafter, the tribunal came to the conclusion that at the time of the accident, the driver of the offending vehicle had valid and effective driving licence and the offending vehicle was insured by the OP no. 2- insurance company.
7. Then the learned tribunal took up issue no. '4' and decided the issue in favour of the plaintiffs. The learned tribunal next took up issue no. '5' and decided that the offending vehicle was insured with opposite party
- insurance company. The learned tribunal next took up issue nos. 7 and 8 together and decided that the plaintiffs are entitled for compensation from opposite party- insurance company. The tribunal 3 M.A. 92 of 2008 then relied upon the judgment of the Hon'ble Supreme Court of India in the case of Kaushlaya Devi vs. Karan Arora and Others reported in AIR 2007 SC 1912 , where in the facts of that case, where the death of 14 years old boy occurred in a motor vehicle accident and when the father also died in the said accident and the mother was the only survivor, the Hon'ble Supreme Court of India held that award of compensation of Rs. 1,00,000/- was proper.
8. Mr. Birendra Kumar, learned counsel for the appellants relies upon the judgment of Hon'ble Supreme Court of India in the case of Kurvan Ansari @ Kurvan Ali and Anr. vs. Shyam Kishore Murmu and Anr. reported in 2022 (1)SCC 317, paragraph 16 of which reads as under:
"16. In view of the above, we deem it appropriate to take notional income of the deceased at Rs 25,000 (Rupees twenty-five thousand only) per annum. Accordingly, when the notional income is multiplied with applicable multiplier of 15, as prescribed in Schedule II for the claims under Section 163-A of the Motor Vehicles Act, 1988, it comes to Rs 3,75,000 (Rs 25,000 × multiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs 40,000 each towards filial consortium and Rs 15,000 towards funeral expenses. Thus, the appellants are entitled to the following amounts towards compensation:
(a) Loss of dependency : Rs 3,75,000-00
(b) Filial consortium (Rs 40,000 × 2) : Rs 80,000-00
(c) Funeral expenses : Rs 15,000-00
Total : Rs 4,70,000-00
and submits that learned tribunal ought to have taken the notional income of the deceased to be Rs. 25,000/- per annum and the multiplier to be 15 relying upon paragraph 42 of the judgment of the Hon'ble Supreme Court of India in National Insurance Co. Ltd. v. Pranay Sethi and Others reported in (2017) 16 SCC 680 and further submits that learned tribunal , would have given filial consortium of Rs. 80,000/- and funeral expenses of Rs. 15,000/-, in total Rs. 4,70,000/- hence, it is submitted that the amount of compensation awarded, be enhanced.
9. Mr. Basav Chatterjee, learned counsel for the respondent no. 1 on the other hand, defends the impugned judgment and decree and submits that since the occurrence took place in the year 2003, the judgments passed in the case of Kurvan Ansari @ Kurvan Ali and Anr. vs. Shyam Kishore Murmu and Anr. (supra) or in the case of National Insurance 4 M.A. 92 of 2008 Co. Ltd. v. Pranay Sethi and Others (supra) were not there before learned tribunal hence, learned tribunal has rightly assessed the compensation amount on the law prevalent at that time hence, it is submitted that the appeal being without any merit be dismissed.
10. Having heard the rival submissions made at the Bar and after going through the materials available in the record, the sole point for determination that crop up in this appeal is that "Whether the compensation amount is to be enhanced ?"
11. In view of the settled principle of law in the case of Kurvan Ansari @ Kurvan Ali and Anr. vs. Shyam Kishore Murmu and Anr. (supra), this court has no hesitation in holding that the appropriate notional income should be Rs.25,000/- per annum and in view of principle of law settled in the case of Kurvan Ansari @ Kurvan Ali and Anr. vs. Shyam Kishore Murmu and Anr. (supra) and also in the case of National Insurance Co. Ltd. v. Pranay Sethi and Others (supra), the multiplier should be 15 and further the claimant is entitled to filial consortium of Rs. 80,000/- and funeral expenses of Rs. 15,000/- that makes the total amount of compensation of Rs. 4,70,000/- less Rs. 50,000/- already paid to the claimant. The sole point of determination is answered accordingly.
12. In view of the discussions made above, judgment and award dated 18.12.2007 passed by Additional District Judge cum M.A.C.T. Judge, FTC, Vth, Dhanbad in Title (M.V.) Claim Case No. 51 of 2005 is modified by directing the respondent no. 1 insurance company to pay remaining amount of Rs. 4,20,000/- with simple interest thereon @ 6% per annum from the date of the judgment to the date of actual payment within three months from the date of this judgment accordingly, the same is disposed of accordingly.
13. No order as to costs.
14. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 3rd November, 2022.
Smita /AFR