ICL 2021 (7) Jha. 126
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
CORAM: HON’BLE MR. JUSTICE KAILASH PRASAD DEO
M.A. No. 73 of 2018; 20.07.2021
Rekha Devi & Others v. B. Damodar & Company & Another
For the Appellants : Mr. Sarvendra Kumar, Advocate. For the Respondent No. 2: Mr. Alok Lal, Advocate. Mr. Santosh Kumar, Advocate.
Learned counsel for the appellants, Mr. Sarvendra Kumar has submitted that inadvertently in memo of appeal, at para-12 (part), 13 & 14, it has been stated that nothing has been paid to the appellants in terms of the award, as such, the same may be expunged or may be ignored from the miscellaneous appeal.
Learned counsel for the New India Assurance Co. Ltd., Mr. Alok Lal assisted by learned counsel, Mr. Santosh Kumar has no objection.
Accordingly, part of para-12, 13 & 14 of the memo of appeal are hereby deleted.
M.A. No. 73 of 2018 Heard, learned counsel for the appellants, Mr. Sarvendra Kumar and learned counsel for the New India Assurance Company Limited, Mr. Alok Lal assisted by learned counsel, Mr. Santosh Kumar.
Learned counsel for the appellants has submitted that the appeal has been preferred by the claimants namely, (1) Rekha Devi, wife of Late Hemlal @ Gango Yadav, (2) Kajal Kumari, minor daughter of Late Hemlal @ Gango Yadav, (3) Suraj Yadav minor son of Late Hemlal @ Gango Yadav and (4) Karan Yadav, minor son of Late Hemlal @ Gango Yadav (claimant nos. 2 to 4 are minors and represented by their mother and natural guardian claimant no. 1 namely, Rekha Devi), for enhancement of the award dated 06.05.2017 passed by learned District Judge-IX-cum-M.A.C.T., Dhanbad, in Title (M.V.) Suit No. 197/2016, whereby the claimants have been awarded compensation to the tune of Rs. 8,85,000/- along with interest @ 9% per annum from the date of filing of the claim petition till realization of the awarded amount.
Learned counsel for the appellants has submitted that the learned Tribunal has considered less income of the deceased, who was a Khalashi having an earning Rs. 300/- per day with Rs. 50/- as food charge.
Learned counsel for the appellants has further submitted that future prospect of the deceased has not been considered and under the conventional head, less amount has been paid, as such, this Court may consider the judgment of the Apex Court passed in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639, of which para-8 may be profitably quoted:-
“8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.”
Learned counsel for the respondent no. 2 – The New India Assurance Company Limited, Mr. Alok Lal assisted by learned counsel, Mr. Santosh Kumar has opposed the prayer and has submitted that the learned Tribunal has rightly considered the income to be Rs. 200/- per day against the claim of Rs. 300/- per day, as the minimum wages for semi skilled labour as notified by the Government of Jharkhand in the year 2016 was Rs. 276/-. The Government has notified the rate for unskilled labour to be Rs. 264.08, semi-skilled labour to be Rs. 276.00, skilled labour to be Rs. 369.28 and highly skilled labour to be Rs. 420.44, as such, this Court may not enhance the compensation.
Learned counsel for the respondent no. 2 has further submitted that interest has been granted @ 9% per annum contrary to the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation reported in 2008 JCR 4 79 (SC), which ought to have been @ 7.5% from the date of filing of the claim application as such, the compensation awarded by the Tribunal be considered to be just and fair compensation and this Court may not enhance the same.
Considering the rival submission of the parties and looking into facts and circumstances of the case, it appears that the deceased Hemlal @ Gango Yadav was working as a cleaner (Khalasi) in tanker bearing registration no. CG-17H-2350, which dashed with a mango tree with high speed driven quietly rashly and negligently, as result of which Hemlal @ Gango Yadav died on the spot on 03.01.2016 at about 9:00 P.M. near Jaitpuri, Gethera Bera Pulia, within the jurisdiction of Kotwali Police Station, in the district Giridih. Deceased was aged about 26 years, at the time of death and vehicle was duly insured before the New India Assurance Company Limited and there is no violation of terms and conditions of the policy. The documents have been brought on record as Exhibit-1 C.C. of F.I.R., Exhibit-2 C.C. of charge-sheet, Exhibit-3 Xerox copy of postmortem report of the deceased Hemlal @ Gango Yadav, Exhibit-4 Xerox copy of Insurance Policy, Exhibit-5 Xerox copy of R.C. Book and Exhibit-6 xerox copy of Driving License.
It appears that the deceased left behind widow and three minor children, as such, the income is to be considered considering the liability on the date of the accident of the deceased. It appears that a khalasi / cleaner in tanker is a semi-skilled labourer and as per the notice, his income is Rs. 276/- per day, which is a minimum wages notified by the Government. This cannot be the actual income of the deceased as claimants have claimed the income of the deceased to Rs. 300/- per day with Rs. 50/- as charge for fooding. In normal days also in the year 2016, no labour was available at such rate, as such, this Court consider the income of the deceased in a benevolent legislation to be Rs. 300/- per day in view of the judgment passed by the Apex Court in the case of Chameli Devi Vs. Jivrail Mian reported in 2019 (4) TAC 724 SC, where the Apex Court, in absence of any documentary evidence has considered the income of a Carpenter, who lost his life on 02.01.2001 to be Rs. 5000/-, whereas in the present case, accident has taken place on 03.01.2016 after 15 years of that accident.
After hearing learned counsel for the parties, this Court considered the income of the deceased to be Rs. 300/- per day. Accordingly, his monthly income comes to Rs. 300/- x 26 = Rs. 7,800/- per month. The future prospect shall be granted @ 40% as the deceased died at the age of 26 years, which falls below the age of 40 years in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (Para-59.4). The deduction shall be 1/4th in view of the judgment passed by the Apex Court in case of Sarla Verma Vrs. Delhi Transport Corporation reported in (2009) 6 SCC 121(Para-30) as the deceased left behind four family members as dependents. The deceased died at the age of 26 years, as such, multiplier of 17 is applicable, which falls under the category of 26 to 30 years in view of Sarla Verma (Smt.) (Supra)(Para-42) and under the conventional head, Rs. 70,000/- i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate shall be granted. So far the interest is concerned, it appears that interest has been awarded @ 9% per annum from the date of filing of the claim application, which ought to have been @ 7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharampal & Sons (Supra).
Considering the aforesaid facts and circumstances of the case and on the basis of materials brought on record and also in view of the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. (Supra), this Court is calculating the compensation afresh:-
Income Rs. 7,800/- per month
Annual Income Rs. 7,800/- x 12 = Rs. 93,600/-
40% future prospect Rs. 93,600/- + Rs. 37,440/-
Pranay Sethi (Para-59.4) (Supra) = Rs. 1,31,040/- 1/4th deduction towards personal Rs. 1,31,040/- x 1/4 = Rs. 32,760/-
and living expenses
Sarla Verma (Para-30) (Supra)
Total Income Rs. 1,31,040/- – Rs. 32,760/-
= Rs. 98,280/-
Multiplier of 17 (as the deceased Rs. 98,280/- x 17 = Rs. 16,70,760/-was in the age group of 26 to 30 years) Sarla Verma (Para-42) (Supra) Conventional Head Rs. 70,000/-
Pranay Sethi (Para-59.8) (Supra) i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate.
Total Compensation Amount Rs. 16,70,760/- + Rs. 70,000/-
= Rs. 17,40,760/-
The amount of Rs. 17,40,760/- shall be paid along with interest @ 7.5% per annum from the date of filing of claim application.
However, the amount paid by the Insurance Company under Section 140 of the Motor Vehicles Act and also any amount, if indemnified by the Insurance Company pursuant to award passed by the learned Tribunal, shall be deducted from the aforesaid amount and the balance amount shall be paid to the claimants by the Insurance Company within a reasonable time, as the accident is of dated 03.01.2016 and deceased has left behind his widow and three children.
Accordingly, the miscellaneous appeal is hereby allowed.