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Jharkhand High Court · body

2016 DIGILAW 709 (JHR)

Rakhi Prasad v. Ram Ashish Singh

2016-04-26

AMITAV K.GUPTA

body2016
ORDER : This appeal has been preferred against the order 20.12.2012, passed by learned 5th District Judge-cum-Presiding Officer, Motor Vehicle Accident Claims Tribunal, Hazaribagh, whereby the insurance company was directed to pay Rs. 4,64,901/-. Being aggrieved and dissatisfied with the award, the appellants have preferred this appeal for enhancement of the compensation on the ground that the learned Tribunal has failed to appreciate that it was not the case of contributory negligence and the principle of res ipsa loquitur is not applicable. 2. It is submitted by the learned counsel on behalf of the appellants that C.W.-1 and C.W.-2 were the eye-witnesses to the accident, which took place on 22.02.2006 and they have categorically stated that Tata 407 Mini Truck bearing registration no. BR-13D-0069, i.e., the offending vehicle, was being driven rashly and negligently and it dashed the motorcycle of the deceased and the other motorcycle which resulted in the death of riders of the both the motorcycles and the pillion rider of one of the motorcycles and the Mini Truck turned turtle consequent thereto, Khalashi/Cleaner of said truck died on spot. That the deceased was riding on the motorcycle and was returning home after performing his night shift duty at C.C.L., Parej Area. 3. It is argued that in view of the evidences of the eye-witnesses, there was no material evidence on record to arrive at the conclusion by the learned Tribunal that due to contributory negligence of the deceased the accident took place. In support of the same, learned counsel has relied on the decisions reported in (2014) 4 SCC 511 and (2014) 4 JCR 228 (S). 4. It is submitted that the gross salary of the deceased, Sunil Prasad was Rs. 10,901/- and his take-home salary was Rs. 9,735/-, which would be evident from the salary certificate. That the learned Tribunal has deducted, 30% of the take-home salary under the head of general deductions without assigning any reason. That the Tribunal has erred in deducting one-third of the awarded compensation towards the expenses the deceased would have incurred on himself and further deducted 20% of the amount towards income tax and 30% towards contributory negligence. 5. It is argued that the learned Tribunal has not considered or added the future prospects of the income of the deceased while computing and assessing the compensation/award and provided only Rs. 5,000/- and Rs. 5. It is argued that the learned Tribunal has not considered or added the future prospects of the income of the deceased while computing and assessing the compensation/award and provided only Rs. 5,000/- and Rs. 2,000/- towards loss of consortium and funeral expenses respectively. 6. Learned counsel appearing on behalf of National Insurance Company Ltd., has submitted that there was head on collusion between the Truck and the two motorcycles and the learned Tribunal has rightly held that the deceased was negligent while riding the motorcycle; accordingly, it held that there was contributory negligence of the deceased resulting in the accident. It is submitted by the counsel that it would be evident from the salary slip that Rs. 1385.44/- was paid as Sunday wages, Rs. 375/- towards conveyance allowance and Rs. 60/- as night allowance and there were deductions in various heads from the salary of the deceased, hence, the learned Tribunal has rightly deducted 30% of the salary towards the general head of deductions. It is argued that the deceased was aged 41 years, and the multiplier applicable should have been 14 but the Tribunal has wrongly applied the multiplier of 15 which is against the ratio laid down in the case of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 which has also been adopted in the case of Reshma Kumari and Others Vs. Madan Mohan and Another reported in (2013) 9 SCC 65 . It is argued that the loss of dependency has rightly been calculated as one-third, however, the learned counsel has agreed that 30% deduction under the general head is not proper, as only such allowances which are not integral to the salary should have been deducted. Learned counsel urged that 20% of the said amount towards income tax has rightly been deducted. The claimants were negligent in prosecuting the case as the case was filed in 2006, and thereafter, they did not file court fees in the main application and had filed the court fees only after passing of the order of interim compensation under Section 140 of C.P.C., i.e., after nearly 5 years on 05.05.2011. Thus, the interest if any should be from the date of the order and not from the date of application as prayed for by the claimants in the present appeal for enhancement of the compensation. 7. Heard. Thus, the interest if any should be from the date of the order and not from the date of application as prayed for by the claimants in the present appeal for enhancement of the compensation. 7. Heard. On perusal of the materials available on record, it would be evident from the salary slip filed by the claimants/respondents that the gross salary of the deceased was Rs. 10,901.68/- which was inclusive of Rs. 1385.44/- as Sunday wages, Rs. 375/- as conveyance allowance and Rs. 60/- as night allowance, a total of Rs. 1820.44/-. The said allowances should have only been deducted from the gross salary. Thus, after deducting this amount, the net salary of the deceased, is assessed at Rs. 10,901.68/- - 1820.44/- = Rs. 9081.24/-., which is rounded off at Rs. 9,100/-; 30% of the said amount is added towards the future prospects, accordingly, the income per month is computed at Rs. 11,800/-. The annual income of the deceased is accordingly assessed at Rs. 11,800/- X 12= Rs. 1,41,660/-. In terms of the decisions in the case of Smt. Sarla Verma (supra), the multiplier of 14 is applicable, hence, the total income is assessed at Rs 1,41,660/- X 14 = Rs.19,87,440/- after deducting 1/3rd of the said amount towards expenses the deceased would have incurred on himself, i.e., Rs. 6,62,480/-, the compensation payable is assessed at Rs. 19,87,440/- - Rs.6,62,480/- = Rs.13,24,960/- rounded off to Rs. 13,24,900/-. As the insurance company has already paid Rs. 4,64,901/- to the claimants, therefore, the outstanding compensation payable is calculated as Rs.13,24,900/- - Rs.4,64,901/- = Rs. 8,59,999/-. After addition of a lump sum amount of Rs. 1,00,000/- towards loss of consortium, love and affection and funeral expenses, the total compensation payable is computed as Rs. 9,60,000/-. 8. From perusal of the materials available on record, it transpires that the claimants were diligently prosecuting the case as they attended the court regularly, since 2006. They filed the court fees in the main application after getting the interim compensation under Section 140 of C.P.C., and took steps for filing substituted service of notice by way of paper publication in 2009, whereafter, the respondents appeared in the case. Thus, in the given facts and circumstances, the respondents shall pay 6% interest on the outstanding compensation amount of Rs. 9, 60,000/- from the date of filing of the application till the date of realization. Thus, in the given facts and circumstances, the respondents shall pay 6% interest on the outstanding compensation amount of Rs. 9, 60,000/- from the date of filing of the application till the date of realization. The respondent/Insurance Company shall pay the amount preferably by the ensuing Lok Adalat, i.e., on 14.05.2016. 9. If the said amount is not paid in the Lok Adalat the respondent-Insurance Company shall pay the amount by 30.06.2016, failing which, the Insurance Company will liable to pay interest @ 9% per annum on the said amount accrued with interest @ 6% from the date of this order. 10. With the said observation and direction, the appeal is hereby allowed.