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2018 DIGILAW 1655 (JHR)

Parvati Devi v. Gurmeet Kaur

2018-07-27

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. - Heard the parties. 2. This appeal has been preferred by the claimants-appellants for enhancement of compensation amount awarded by the Motor Vehicles Accidents Claims Tribunal, Ranchi vide Judgment and Award dated 12.12.2007 in Compensation Case No.143 of 2004. 3. The brief facts of this case is that the claimant-appellant No.l is the widow, claimant Nos.2 and 3 are the sons, claimant-appellant No.4 is the daughter and claimant-appellant No.5 is the mother of the deceased-Pramod Kumar Sahu who died in a motor vehicle accident caused by the truck bearing registration No. CG-04G-3421 on 03.06.2004 at Itki Chowk under Sukhdeonagar Police Station, Ranchi while he was going by his scooter bearing registration No. JH-01A-8985. The deceased was aged about 45 years at the time of his death and as per the claimants, he was earning Rs. 25,000/- per month from his business. The respondent-opposite party No.l is the owner of the truck who neither appeared nor filed his written statement. The respondent-opposite party No.2 is the Oriental Insurance Company who contested the case by filing their written statement. 4. The Tribunal on the basis of the evidence available in the record held that the deceased-Pramod Kumar Sahu died in a motor vehicle accident which took place on 03.06.2004 due to rash and negligent driving of the driver of the truck bearing registration No. CG-04G-3421. The Tribunal assessed the age of the deceased as 45 to 46 years at the time of his death and assessed his monthly income as Rs. 8,000/- and after deducting l/3rd of the earnings towards the personal expenses of the deceased, applied the multiplier 13 and adding Rs. 2,000/- for funeral expenses, Rs. 2,500/-towards loss of estate and Rs. 5,000/- as consortium awarded a total sum of Rs. 8,41,500/- (Rupees Eight Lakh Forty One Thousand Five Hundred). The existence of a valid insurance policy of the vehicle involved in the accident, the assessment of the income of the deceased-Pramod Kumar Sahu as Rs. 8,000/- per month and his declared age between 45 to 46 years is not challenged before this Court. 5. Mr. 8,41,500/- (Rupees Eight Lakh Forty One Thousand Five Hundred). The existence of a valid insurance policy of the vehicle involved in the accident, the assessment of the income of the deceased-Pramod Kumar Sahu as Rs. 8,000/- per month and his declared age between 45 to 46 years is not challenged before this Court. 5. Mr. Arvind Kumar Lall, learned counsel for the appellants submits that the claimants-appellants pray for enhancement of compensation on the following grounds:- (a) Relying upon the judgment of the Hon''ble Supreme Court of India in the case of National Insurance Company Limited vs. Pranay Sethi & others, reported in 2017 (4) JLJR 275 (SC) : ( AIR 2017 SC 5157 ) held in para 61 which reads as under: 61. '' In view of the aforesaid analysis, we proceed to record our conclusions:- (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 30% in every three years.'' ? (Emphasis Supplied) Learned counsel for the appellants submits that the Tribunal erred in not adding 25% of the income of the deceased towards future prospects as his age has been determined to be between 40-50 years. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 30% in every three years.'' ? (Emphasis Supplied) Learned counsel for the appellants submits that the Tribunal erred in not adding 25% of the income of the deceased towards future prospects as his age has been determined to be between 40-50 years. (b) Relying upon the judgment of Hon''ble Supreme Court of India passed in the case of Sarla Verma (SMT) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 : ( AIR 2009 SC 3104 , para 14) has held in para 30 which reads as under: 30. '' Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (^rd) where the number of dependent family members is 2 to 3, one-fourth (l/4th) where the number of dependent family members is 4 to 6, and one-fifth (l/5th) where the number of dependent family members exceeds six.'' ? (Emphasis Supplied) Learned counsel for the appellants submits that since it has been accepted that the deceased was married and was having claimants-appellant Nos. l to 5 as dependents, the learned Tribunal erred by deducting one-third (^rd) of the income of the deceased towards his personal expenses and the Tribunal ought to have deducted only one-fourth ( 1 /4th) of the income of the deceased towards his personal expenses. (c) Learned counsel for the appellants further submits that the Tribunal erred by not awarding interest to the claimants-appellants from the date of filing of the application and erred by awarding 9% interest after expiry of 60 (sixty) days from the date of judgment. In this respect, learned counsel for the claimants-appellants relied upon the judgment of Hon''ble Supreme Court of India in the case of Chameli Wati & another vs. Delhi Municipal Corporation and others, reported in 1985 ACJ 645 : ( AIR 1986 SC 1191 ) which reads as under: '' Leave granted. In this respect, learned counsel for the claimants-appellants relied upon the judgment of Hon''ble Supreme Court of India in the case of Chameli Wati & another vs. Delhi Municipal Corporation and others, reported in 1985 ACJ 645 : ( AIR 1986 SC 1191 ) which reads as under: '' Leave granted. We are of the view that the Division Bench of the High Court erred in the exercise of its discretion under section 110-CC of the Motor Vehicles, Act 1939 in not awarding interest on the amount of compensation finally determined by it from the date of the application. It is undoubtedly true that under section 110-CC, the Division Bench of the High Court had discretion to award interest at suck rate and from such date not earlier than the date of the application as it may think fit in the exercise of its discretion. But it is well settled that every discretion conferred by statute must be exercised judicially on the basis of the facts and circumstances of a particular case. Here when the learned single Judge enhanced the amount of compensation, he awarded interest on the enhanced amount @ 6% per annum from the date of his judgment and the Division Bench also when it further enhanced the amount of compensation, directed that interest at the rate of 6% per annum be paid on the enhanced amount from the date of its judgment and not from the date of the application. The learned single Judge as well as the Division Bench totally ignored the fact that the enhanced amount of compensation awarded by them was in their judgment the correct amount of compensation payable to the appellants on account of the death of the deceased resulting from the accident. The learned single Judge and the Division Bench should have therefore awarded interest on the enhanced amount of compensation from the date of the application. We accordingly set aside the judgment of the Division Bench as also the judgment of the learned single Judge insofar as these judgments direct that interest shall be payable on the enhanced amount of compensation from the date of the respective judgments and instead, we direct that interest shall be payable on the enhanced amount of compensation as finally determined by the Division Bench at the rate of 12% per annum from the date of the application for compensation. The respondents will of course get credit for the amounts already paid by them to the appellants from time-to-time and interest shall be calculated taking into account such payments. The amount directed to be paid to the appellants under this order shall be paid within 2 months from today. The respondents will pay the costs of the appellants, quantified at Rs. 5,000/-. '' (Emphasis Supplied) In this regard, learned counsel for the appellants also relied upon the judgment of Hon''ble Supreme Court of India in the case of Jagdish vs. Mohan & others, reported in (2018) Acci CR 446 (SC) : ( AIR 2018 SC 1347 ) wherein in the facts and circumstance of that case, the Hon''ble Supreme Court held that the appellant of that case was entitled to interest @ 9% per annum on the compensation from the date of the filing of the claim petition. Hence, it is submitted that interest @ 9% per annum be awarded to the appellants on the compensation amount payable to the claimants from the date of filing of the claim petition and hence the impugned judgment and award be modified accordingly. 6. Mr. A. Allam, learned senior counsel for the respondent No.2-Oriental Insurance Company, submits that since the insurance company has already paid the compensation amount to the claimants and the claimants have received the same without prejudice, hence, this appeal for enhancing the claim amount is not maintainable and the Tribunal having rightly assessed the compensation, the claimants do not deserve any enhancement of compensation and this appeal being without any merit be dismissed. It is further submitted by the learned counsel for the respondent No.2 that the ratio of Sarla Verma ( AIR 2009 SC 3104 ) (supra) and Pranay Sethi ( AIR 2017 SC 5157 ) (supra) have only prospective effect and they do not have any retrospective effect. Hence, the benefit of Sarla Verma (supra) and Pranay Sethi(supra) cannot be given to the appellants without objection. 7. Learned counsel for the appellants countered this submission of the learned senior counsel appearing for the respondent No.2- Oriental Insurance Company by drawing the attention of this Court towards page No.134 of the brief of the lower court which is the receipt of the Oriental Insurance Company wherein it has been mentioned that the claimants have received the amount without prejudice as per the award. Hence, it is submitted by the learned counsel for the appellants that since the amount has been received without prejudice so, there is no hindrance for them to prefer this appeal and since this appeal is continuation of the proceeding and in the case of Sarla Verma ( AIR 2009 SC 3104 ) (supra) the date of occurrence was 18.04.1998, which is much prior to the date of occurrence of accident involved in this case hence, the ratio of Sarla Verma (supra) is certainly applicable to the facts of this case where the accident took place on 03.06.2004. 8. Learned counsel for the respondent No.2- Oriental Insurance Company submits that the facts of Sarla Verma ( AIR 2009 SC 3104 ) (supra) are different from the facts of this case as in that case, the payment of claim amount was not made by the insurance company. But in this case the insurance company has already paid the claim amount. 9. Having heard the rival submissions made at the Bar and after perusal of the records, the following points for determination emerge for consideration in this case: (a) Whether after payment of the claim amount by the insurance company to the appellants-claimants, is this appeal maintainable? (b) Whether the claimants-appellants are entitled to an enhancement of compensation? First point for determination 10. So far as the first point for determination is concerned as is already indicated above, the amount has been received by the claimants-appellants without prejudice as per the award. This appeal has been filed as provided for in the statute. The learned senior counsel appearing for the respondent No.2 could not assign any specific reason as to why the claimants are not entitled to file appeal even if they have received the amount of compensation awarded by the tribunal without prejudice as per the award. So, this Court is of the considered view that there is no bar in preferring this appeal by the claimant-appellants and this appeal is maintainable. The first point for determination is answered accordingly. Second point for determination 11. So, this Court is of the considered view that there is no bar in preferring this appeal by the claimant-appellants and this appeal is maintainable. The first point for determination is answered accordingly. Second point for determination 11. So far as the contention of the appellants regarding prospective applications of the ratio of Sarla Verma ( AIR 2009 SC 3104 ) (supra) and Pranay Sethi (supra) is concerned, the matter of Pranay Sethi ( AIR 2017 SC 5157 ) (supra) was placed before a Larger Bench consisting of five Hon''ble Judges of the Supreme Court perceiving cleavage of opinion between Reshma Kumari and others vs. Madan Mohan and another (2013) 9 SCC 65 : (2013 AIR SCW 3120) and Rajesh and others vs. Rajbir Singh and others (2013) 9 SCC 54 both three-Judge Bench decisions and a two-Judge Bench of Hon''ble Supreme Court in National Insurance Company Limited vs. Pushpa and others, (2015) 9 SCC 166 for an authoritative pronouncement and the Hon''ble Supreme Court after considering the matter in para-61 of Pranay Sethi (supra) recorded the conclusions which are authoritative pronouncements. That being so, I have no hesitation in holding that the ratio of Pranay Sethi (supra) is applicable to any appeal pending before any competent court of law being the continuation of the statutory appeal. Similarly, so far as the ratio of Sarla Verma (supra) is concerned, as is submitted by the learned counsel for the appellants that the deceased of that case died on 18.04.1998 and the accident involved in this appeal has taken place on a date subsequent to that date, there is no plausible reason as to why not to apply the ratio of Sarla Verma (supra) to the facts of this case. 12. Since it has been the authoritative pronouncement by the Hon''ble Supreme Court of India in the case of Pranay Sethi ( AIR 2017 SC 5157 ) (supra) that in case of selfemployed persons an addition of 25% to the income be made while calculating the multiplicand towards future prospects of the persons who are aged about 40 to 50 years, this Court is of the considered view that the Tribunal erred by not adding such amount while calculating the, multiplicand. Further as per the ratio of Sarla Verma ( AIR 2009 SC 3104 ) (supra), this is a fit case where one-fourth (l/4th) of the income of the deceased should have been deducted towards his personal expenses while calculating the multiplicand and in view of the ratio of judgment of Hon''ble Supreme Court of India in the case of Chameli Wati & another ( AIR 1986 SC 1191 ) (supra), there being no evidence of any deliberate laches on the part of the claimants-appellants, the claimants-appellants of this appeal are entitled to get interest @ 9% from the date of filing of the claim petition to the date of payment of the claim amount. Thus the claimants are entitled for enhancement of the compensation amount to the aforesaid extent only. The second point for determination is answered accordingly. 13. In view of the answer to the second point for determination of this court, as the income of the deceased has been assessed as Rs. 8,000/- per month and deducting his one-fourth (l-4th) of the amount towards his personal expenses, his monthly contribution to his family comes out to Rs. 6,000/- per month and that is Rs. 72,000/- per annum and adding 25% of that amount towards future prospects, the multiplicand comes out to Rs. 90,000 and by applying the multiplicand 13 (thirteen), the compensation comes out to Rs. 11,70,000/-. Since in view of the Pranay Sethi ( AIR 2017 SC 5157 ) (supra), the claimants-appellants are entitled to funeral expenses of Rs. 12,000/- but the Tribunal has awarded them a sum of Rs. 2,000/-, so on this account, the claimants-appellants are entitled to differential amount of Rs. 10,000/- and towards loss of consortium, the claimants-appellants are entitled to Rs. 40,000/- but the claimants have been paid Rs. 5,000/-, hence the claimants are entitled to Rs. 35,000/- more in this respect and towards loss of estate, the claimants are entitled to Rs. 15,000/- but they have been paid Rs. 2,500/- so, on this core, the claimants are entitled to Rs. 12,500/- more. So, the total claim amount comes out to Rs. 12,27,500/- (Rupees twelve lakh twenty seven thousand five hundred) and the claimants-appellants are entitled to get interest @ 9% from the date of filing of the claim petition to the date of judgment. 2,500/- so, on this core, the claimants are entitled to Rs. 12,500/- more. So, the total claim amount comes out to Rs. 12,27,500/- (Rupees twelve lakh twenty seven thousand five hundred) and the claimants-appellants are entitled to get interest @ 9% from the date of filing of the claim petition to the date of judgment. The respondent No.2-The Oriental Insurance Company is directed to pay the said amount, less any amount, paid earlier within three months from the date of receipt/ production of the copy of the judgment 14. Accordingly, the impugned judgment and award is modified to the aforesaid extent. 15. This appeal is disposed of accordingly. 16. Let the lower court records be sent back to the tribunal below along with a copy of this judgment forthwith. 17. Order accordingly.