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2014 DIGILAW 105 (JHR)

Tula Devi v. United India Insurance Company Ltd.

2014-01-17

D.N.UPADHYAY

body2014
Order : This appeal has been preferred by mother, father and brother of the deceased Binod Kumar Mahto @ Birendra Kumar Mahto against the judgment and award dated 5th September, 2005 passed by learned Motor Vehicle Accident Claim Tribunal, Hazaribag in connection with Claim Case No.91 of 1993 whereby a sum of Rs.1, 72,000/has been awarded in favour of the claimants and the learned Tribunal has also indicated the manner in which the amount shall be apportioned between the claimants (wife of the deceased) and parents including brother. 2. The facts behind the claim application is that Binod Kumar Mahto @ Birendra Kumar Mahto was travelling on Ambassador Car bearing registration No.WGI92 with his friends on 30th January, 1993 and he was going from Kaitha to Ranchi. When the vehicle reached near Pal Nurshing Home, Ramgarh, a truck bearing registration No.PB10B 9530, being driven rashly and negligently, dashed to the ambassador car as a result the deceased and other occupants sustained injuries and died on the spot. It is disclosed that at the time of death deceased was aged about 21 years and he was a college student. Besides study, he was also providing tuition and his monthly income was about Rs. 1,500-1,600/- per month. Sarita Devi, wife of the deceased, filed an application for grant of compensation against the death of her husband Binod Kumar Mahto @ Birendra Kumar Mahto which occurred in the road accident. The parents of the deceased, younger brother and sister were made party to the claim application. After service of notice the opposite party United India Insurance Company Ltd. appeared and filed their show cause but the owner and driver of the vehicle did not appear and the trial Court proceeded against them exparte. 3. On 15.02.2000 issues were framed and after admitting evidence and documents on record the Tribunal has come to the conclusion that the dependents of deceased are entitled for compensation of Rs. 1,72,000/- and it was directed to be distributed in the manner indicated in the impugned judgment. 4. Learned counsel appearing for the appellants has submitted that the claimant Mostt. Sarita Devi, who has been made opposite party/respondent No.2 in this appeal, got herself remarried on 07.07.2000 and she, now ceases to be the widow of the deceased. The learned Tribunal has rightly directed the respondent insurance company to pay Rs. 25,000/- to her. 4. Learned counsel appearing for the appellants has submitted that the claimant Mostt. Sarita Devi, who has been made opposite party/respondent No.2 in this appeal, got herself remarried on 07.07.2000 and she, now ceases to be the widow of the deceased. The learned Tribunal has rightly directed the respondent insurance company to pay Rs. 25,000/- to her. Furthermore, the Tribunal has wrongly assessed the annual income of the deceased and committed error by not granting interest on the amount awarded from the date of application. 5. Learned counsel appearing for the respondent No.2 Mostt. Sarita Devi has submitted that on the date of incident she was wife of the deceased and she remained with her in-laws for long seven years. Since the unfortunate Sarita Devi became widow in her young age, she got herself married with the suggestion and intervention of her relatives and friends. The cause of action for this application arose on 30th January, 1993 and on that date she was the wife of the deceased and after death of her husband she was the widow and therefore, she is entitled for compensation in lieu of the death of her husband Binod Kumar Mahto @ Birendra Kumar Mahto. 6. Learned counsel appearing for the United India Insurance Company Ltd. submits that this appeal has been filed mainly for the apportionment of the amount awarded but now learned counsel for the appellant has been raising issue of enhancement of the awarded amount and also claiming for the interest to be paid on the amount of compensation. He has drawn my attention to the prayer portion of the memo of appeal in which the appellant has prayed only to set aside the impugned judgment and award and further made prayer before this Court to pass any orders which appear proper for doing justice. The learned counsel for the respondent has vehemently raised objection against grant of interest on the amount awarded. He has submitted that the Tribunal has rightly refused to allow interest and the ground is available and discussed in the judgment. The application was filed in the year 1993 which remained pending till 1997 for admission. The issues were framed on 15.02.2000 but the evidence of the claimant was closed only in the year 2005. He has submitted that the Tribunal has rightly refused to allow interest and the ground is available and discussed in the judgment. The application was filed in the year 1993 which remained pending till 1997 for admission. The issues were framed on 15.02.2000 but the evidence of the claimant was closed only in the year 2005. The circumstances indicate that it was the claimant who made delay in disposal of the case and for that the respondent Insurance Company should not be held liable. It is further pointed out that the Tribunal has rightly considered the annual income of the deceased and it was based on the evidence adduced by the claimant. 7. I have gone through the impugned judgment and the materials placed before me. It is admitted case of the claimants that the deceased was a college student and no certificate with regard to his monthly income has been brought on record. The oral evidence adduced by the claimant suggests that the deceased was earning Rs. 1500-1600/- per month by providing tuition to the children. The Tribunal has taken the notional income of Rs. 15,000/- per annum and after deducting 1/3rd from the said amount which was to be incurred by the deceased on him, calculated the dependency by choosing multiplier 17. 8. The learned Tribunal has not considered the future prospect of the deceased in view of the judgment reported in (2012) 6 SCC; 421; 2012 (3) T.A.C. 1 Santosh Devi vrs. National Insurance Co. Ltd. & Others in which it was held that an addition of 30% increase must be applied for increase in total income of the deceased over a period of time if he had been alive. Further in the case of Rajesh & Others vrs. Rajbir Singh 2013 (3) T.A.C. 697 the Hon'ble Supreme Court held that in case of self employed persons or persons with fixed wages, in case where the victim was below 40 years, there must be an addition of 50% to the total income of the deceased while computing future prospects of the deceased. Therefore, if the notional income i.e. Rs. 15000/- per annum as indicated u/s 163 A of the M.V. Act is taken and 50% to that income towards future prospect is to be added, the annual income will come to Rs. Therefore, if the notional income i.e. Rs. 15000/- per annum as indicated u/s 163 A of the M.V. Act is taken and 50% to that income towards future prospect is to be added, the annual income will come to Rs. 22,500/- and after deducting 1/3rd on the personal expenses of the deceased, the annual income for calculating the loss of dependency would be Rs. 15,000/per annum. If the multiplication of 17 is taken, the compensation amount would come to Rs. 2,55,000/-. Therefore the claimants are entitled to receive compensation of Rs.2,55,000/- in lieu of the death of Binod Kumar Mahto @ Birendra Kumar Mahto. 9. The learned counsel appearing for the respondent has vehemently raised objection on the point of payment of interest. It is not disputed that issues were framed on 15.02.2000 and therefore, it was duty of the Court to proceed further as early as possible. Since the record is not available before us, it could not be gathered as to who is at fault for delay in disposal of the case but the fact remains that for such delay in disposal of the case the claimants shall not suffer. In the circumstances, the awarded amount of Rs. 2,55,000/- with interest @ 6% per annum from the date of framing of the issues i.e. 15.02.2000 shall be paid to the claimants. Since the mother and wife of the deceased are alive and they are the Class1 legal heirs, the amount should be distributed among them. It has also been brought on record that the status of claimant opposite party No.2 stood changed on the date on which the judgment was pronounced and on that very date she did not remain widow of deceased Binod Kumar Mahto @ Birendra Kumar Mahto. Because she got herself married, the awarded amount shall be distributed in the following manner: Rs. 75,000/- with interest @ 6% per annum from the date of framing of issues shall be paid to respondent No.2 (then widow of deceased). If Rs. 25,000/- as indicated in the impugned judgment has already been paid to Mostt. Sarita Devi respondent No.2, in that situation said sum of Rs.25,000/shall be deducted and balance amount with interest shall be paid to her. Remaining compensation amount of Rs. If Rs. 25,000/- as indicated in the impugned judgment has already been paid to Mostt. Sarita Devi respondent No.2, in that situation said sum of Rs.25,000/shall be deducted and balance amount with interest shall be paid to her. Remaining compensation amount of Rs. 1,80,000/- with interest @ 6% per annum from the date of framing of issue shall be paid to the mother of the deceased i.e. appellant No.1 Tula Devi. It is further made clear, if the compensation amount i.e. Rs. 1,47,000/- as indicated in the impugned judgment has already been paid to the parents and brother of the deceased, that will form part of the said sum of Rs. 1,80,000/- and that shall be deducted, if it is paid. In that situation the balance sum of Rs. 33,000/- shall be paid with interest, as indicated above. 10. The interim compensation, if paid u/s 140 of the M.V. Act, shall also form part of the total compensation amount. If it has been paid, it shall be deducted from the compensation amount calculated as above. 11. With these observation and modifications, the judgment and award dated 5th September, 2005 passed by learned Motor Vehicle Accident Claim Tribunal, Hazaribag in connection with Claim Case No.91 of 1993, stands set aside to the extent of calculation of the dependency, total amount of compensation and the manner of apportionment. So far other aspects which have been discussed by the Court below, stands affirmed.