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2020 DIGILAW 1131 (JHR)

Chinta Devi v. Chanchala Devi

2020-12-02

KAILASH PRASAD DEO

body2020
JUDGMENT : (Through : Video Conferencing) 1. Heard, learned counsel for the parties. 2. Learned counsel for the appellants has submitted that the appeal has been preferred by the claimants/appellants for enhancement of the award and the matter is pending since the year, 2013 before this Court for appearance of the driver of the vehicle though the vehicle was duly insured and there was no violation of terms and conditions of the policy in view of Section 149(2) of the MV Act and the Insurance Company has been fastened with the liability. 3. Learned counsel for the appellants has further submitted that till the date, Insurance Company has not preferred any appeal so as to submit before this Court that liability may be shifted from the Insurance Company to the owner, as such, if the counsel for the Insurance Company has no objection, the appeal may be heard on merits and may be disposed of. 4. Learned counsel for the respondents-Insurance Company, Mr. Amaresh Kumar has submitted that as per the award the liability has been fastened upon the Insurance Company as there is no violation of the terms and conditions of the policy nor any right of recovery has been given in favour of the Insurance Company rather the award has been passed against the Insurance Company to indemnify the award and the said amount has already been indemnified by the Insurance Company, as such, keeping this case pending for appearance of owner is only delaying the disposal of the appeal. As such, counsel for the Insurance Company has no objection, if the appeal be heard on merits. 5. Considering such submission, let the appeal be heard on merits. 6. On the joint prayer made by the counsels for the claimants/appellants as well as Insurance Company, this matter is being taken up for final adjudication. 7. The appellants/claimants have preferred this appeal for enhancement of the award dated 12.09.2012 passed by learned Principal District Judge-cum-Presiding Officer, M.V.A.C.T., Giridih in M.V. Claim Case No.68 of 2004 whereby the appellants/claimants have been awarded a sum of Rs.2,24,100/- along with interest @ 9% from the date of settlement of issue i.e. 15.07.2006 till the realization to the claimant no.1 (Smt. Chinta Devi) within one month from the date of this award. 8. 8. Learned counsel for the appellants has submitted that unfortunate accident took place on 10.05.2003 when son of the appellants' Rajdeo Singh died in a motor vehicle accident at the age of 25 years and the claim application was preferred in the year, 2004 but decided by passing an award on 12.09.2012. Thereafter the appellants preferred this Miscellaneous Appeal for enhancement with delay of 58 days, which has been condoned vide order dated 20.02.2018 passed in I.A. No.811 of 2013. Learned counsel for the appellants has assailed the impugned award on the ground that the claimants have prayed before the learned Tribunal to consider the income of the deceased to be Rs.5,000/- and one of the claimants examined as P.W.1., has categorically stated that deceased was earning a sum of Rs.5,000/-per month. P.W.2 has stated that deceased (Rajdeo Singh) was earning a sum of Rs.180/-per day and P.W.3 has stated that deceased was earning a sum of Rs.200/-per day, but learned Tribunal without any reason considered the same to Rs.3,000/- per month. Learned counsel for the appellants has further submitted that this issue has been considered by the Hon’ble Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC, wherein it has been held in that deceased died in a motor accident in the year, 2001 and the deceased was a carpenter. His income was considered by the learned Tribunal affirmed by the High Court to be Rs.3,000/-per month, but the Apex Court has considered the same to be Rs.200/-per day. Considering also that carpenter may not get work per day, thus the income of deceased has been considered to be Rs.5,000/- per month by the Apex Court in the case of Chameli Devi (Supra). Learned counsel for the appellants has further submitted that deceased died at the age of 25 years and the learned Tribunal has wrongly used multiplier of 13 instead of 18 in view of the judgment passed by the Hon’ble Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 para 42. 9. 9. Learned counsel for the appellants has further submitted that under the conventional head only Rs.4,500/- has been given contrary to the judgment passed by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 para 59.8 where the loss of Estate has been considered to be Rs.15,000/-, loss of consortium to be Rs.40,000/- and funeral expenses of Rs.15,000/- i.e. total Rs.70,000/-. Learned counsel for the appellants has further submitted that deceased was a self-employed person as he was mason and his future prospect has not been considered which ought to have been considered to be 40% in view of para 59.4 of Pranay Sethi (supra). 10. Learned counsel for the appellants has further submitted that though the deceased died while travelling over the roof of the bus but it was with the consent of driver and conductor of the bus on valid ticket, as such, the learned Tribunal has wrongly deducted 20% amount under the contributory negligence which ought not to have been deducted. 11. Learned counsel for the appellants has further submitted that the interest has been granted @ 9% but it has not been granted from the date of filing of the claim application rather it has been granted from the date of settlement of the issue i.e. 15.07.2006, as such, interest ought to have been granted in view of Section 171 MV Act as well as in view of the judgment passed by the Hon’ble Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, reported in 2008 (4) JCR 79 SC. Learned counsel for the appellants has further submitted that since the award is not just and fair compensation, this Court may enhance the same. 12. Learned counsel for the respondents-Insurance Company, Mr. Amresh Kumar has submitted that the amount of award passed by the learned Tribunal has already been indemnified by the Insurance Company on 07.12.2012 and thereafter on 18.02.2013, the instant appeal has been filed with limitation petition. The delay in filing the instant appeal has already been condoned in terms of order dated 20.02.2018 passed in I.A. No.811 of 2013, but if such appeals are entertained then it may amounts to opening of Pandora Box for all those claim cases where the appeals are being preferred after accepting the money but without any protest by the claimants. The delay in filing the instant appeal has already been condoned in terms of order dated 20.02.2018 passed in I.A. No.811 of 2013, but if such appeals are entertained then it may amounts to opening of Pandora Box for all those claim cases where the appeals are being preferred after accepting the money but without any protest by the claimants. This Court put a question to the learned counsel for the respondent-Insurance Company that why they have not oppose the condonation application and why the said order was not assailed before the Apex Court. Since the order by which condonation of delay has been allowed and the same has not been assailed before the Supreme Court, such objection raised by the learned counsel for the Insurance Company is not accepted at this stage. 13. Learned counsel for the respondents has further submitted that learned Tribunal has considered the income of deceased as Rs.3,000/- for an occurrence dated 10.05.2003 which is a reasonable amount. This issue has already been decided by the Apex Court in the case of Chameli Devi (supra) on 04.09.2019 where the deceased died in a motor accident which took place in the year, 2001. As such, this argument of learned counsel for the respondent is not sustainable in the eyes of law. 14. This Court has perused the judgment passed by the Apex Court in the case of Chameli Devi (Supra). For the reason assigned by the Apex Court, this Court also feels it proper that in the case of Chameli Devi (supra), the accident took place in the year, 2001, learned Tribunal as well as High Court has assessed the income of deceased to be Rs.3,000/-per month which has been enhanced to Rs.5,000/-per month, as such, this Court also feels that the income of the deceased be enhanced to Rs.5,000/-per month. So far the future prospect is concerned in the case of Chameli Devi (supra), it has been mentioned as 40% i.e. Rs.2,000/-and thus the total income was considered to be Rs.7,000/-. 15. Under the aforesaid circumstances, this Court also feels that it would be proper to consider the future prospect of the deceased to be Rs.2,000/-@ 40% considering age of deceased to be 25 years. 15. Under the aforesaid circumstances, this Court also feels that it would be proper to consider the future prospect of the deceased to be Rs.2,000/-@ 40% considering age of deceased to be 25 years. So far conventional head is concerned, it appears to the court that submission of the learned counsel for the appellants is justified in view of the judgment passed by the Hon'ble Apex Court in the case of Pranay Sethi (supra) that under the conventional head this amount shall be Rs.70,000/- (i.e. Rs.15,000/- for loss of Estate, Rs.40,000/- loss of consortium, Rs.15,000/- for funeral expenses). 16. Considering the same, this Court enhances the same. So far contributory negligence is concerned, the submission advanced by the learned counsel for the appellants is not acceptable to this Court that deceased (Rajdeo Singh) was not at all responsible even if he was travelling on the roof of the bus because that was permitted by the driver, conductor or owner of the bus. This argument is not acceptable to the Court. A person who has himself put his life in-danger is responsible for such contributory negligence in which he lost his life, as such, this Court is not inclined to interfere with the deduction made by the learned Tribunal @ 20% as contributory negligence of the deceased. 17. So far the interest is concerned, this Court has perused the Section 171 MV Act as well as the judgment passed by the Hon'ble Apex Court in the case of Dharmpal (Supra). The interest should be payable to be the claimants from the date of filing of the claim application with simple interest @ 7.5% per annum though till the actual date of payment i.e. 07.12.2012 on the amount of compensation awarded by the learned Tribunal. 18. So far the enhanced amount is considered, the same will be paid with interest @ 7.5% from today till the date of actual payment as the proceeding remains pending because of the latches on the part of the appellants before this Court since the year, 2013. As such, interest @ 7.5% shall be paid on the enhanced amount from today till the date of actual payment. 19. Under the aforesaid circumstances, the new calculation chart should be:- 20. The income of the deceased is considered to be Rs.5,000/-per month and multiplier will be 18. Total amount of compensation = Rs.5,000/- X 12 X 18 = Rs.10,80,000/-. As such, interest @ 7.5% shall be paid on the enhanced amount from today till the date of actual payment. 19. Under the aforesaid circumstances, the new calculation chart should be:- 20. The income of the deceased is considered to be Rs.5,000/-per month and multiplier will be 18. Total amount of compensation = Rs.5,000/- X 12 X 18 = Rs.10,80,000/-. Future prospect @ 40% i.e. Rs.10,80,000/-+ Rs.10,80,000/-X 40% (Rs.4,32,000/-) =Rs.15,12,000/-in view of the judgment of Pranay Sethi (supra). Deceased was a widower leaving behind only his mother, as such, the deduction shall be 50% in view of para 30 of the Sarla Verma (supra). Thus 50% of Rs.15,12,000/- = Rs.7,56,000/-. 20% deduction towards contributory negligence, then amount comes to Rs.6,04,800/-. Under Conventional head = Rs.70,000/-. Then total compensation comes to Rs.6,74,800/-. 21. The amount of Rs.3,27,321/- which has already been paid shall be deducted from this amount of Rs.6,74,800/- and rest amount of Rs.3,47,479/- shall be enhanced amount and that shall be paid by the Insurance Company within a reasonable time. 22. So far the interest is concerned, the same shall be payable to the appellants @ 7.5% from the date of filing of the claim application till the date of actual payment i.e. 17.12.2012 on the amount already paid and thereafter on the enhanced amount from today till the date of realization. 23. Accordingly, the instant appeal is disposed of. 24. I.A. No.2326 of 2020 is hereby closed.