Babita Devi & Ors. vs Saraswati Devi & Ors

Heard, learned counsel for the parties.

The instant Miscellaneous Appeal has been preferred by the claimants for enhancement of the award dated 27.01.2014 passed by the learned

Principal District Judge-cum-P.O. M.V.A.C.T., Giridih in M.V. Claim Case No. 25 of 2008 whereby the claimants have been awarded compensation

to the tune of Rs.6,87,000/- along with simple interest @ 9% per annum from the date of filing of this claim application till the date of realization. The

United Insurance Company Limited is directed to pay half of the total compensation amount and half of the total compensation amount shall be paid by

the New India Assurance Company Limited. All the paid compensation amount shall be recovered by the New India Assurance Company Limited

from the owner of one of the offending vehicle Tata 407 bearing registration no. BR-23-7193 Smt. Saraswati Devi, W/o Sri Prakash Prasad, R/o

Village/Mouza Chirki, P.O. & P.S. Pirtand, District- Giridih whose vehicle was insured before the New India Assurance Company Limited.

Learned counsel for the appellants has submitted that notice has been issued vide order dated 05.10.2015. As per the service report of notice upon

respondent no.1 (Smt. Saraswati Devi), the same is considered to be validly served. Thereafter fresh notice was issued upon respondent no.2- Md.

Sahnawaj, S/o Mustak Khan, R/o Koldiha, P.S. Giridih(T), P.O. & District- Giridih (Jharkhand) being the driver of the offending vehicle Tata 407

bearing registration no. BR-23-7193 in terms of order dated 05.03.2018, but till date both the respondents have not appeared before this Court and

unserved service report has been returned to the office with endorsement that 'addressee not found'. The respondent no.3- the New India Assurance

Company Limited is represented by learned counsel, Mr. Manish Kumar, respondent nos.4, 5 and 6 owner/driver of the another vehicle i.e. Maxi/Taxi

bearing registration no.BR-12A-6311 are represented by Mr. Anil Kumar, learned Sr. Advocate assisted by learned counsel, Mr. Abhishek Kumar

and respondent no.7- The United India Insurance Company Limited is represented by learned counsel, Mr. Alok Lal.

Learned counsel for the appellants has assailed the impugned award for enhancement of the awarded amount on the ground that the deceased-

Rajesh Singh @ Rajeshwar Prasad died in a motor vehicle accident at the age of 32 years. The deceased was working as Hawker and his earning

was to the tune of Rs.5,000/- per month from selling cloths and also working as distributor of RCM and from which his earning was Rs.2,000/- per

month but the learned Tribunal has wrongly considered the income of the deceased to be Rs.5,000/- per month in absence of any income receipt

shown from distributorship of RCM.

Learned counsel for the appellants has further submitted that income of the deceased has been deducted wrongly towards personal and individual

expenses as 1/3rd contrary to 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 as the family members, who are dependents upon the deceased were five in numbers, as such,

deduction ought to have been made as 1/4 th in view of para 30 of the aforesaid judgment.

Learned counsel for the appellants has further submitted that future prospect of the deceased to the tune of 40% has not been granted by the learned

Tribunal in view of the judgment passed by Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC

680 at para 59.4.

Learned counsel for the appellants has further submitted that under the conventional head amount of Rs.7,000/- has been granted contrary to the

judgment passed by the Apex Court in the case of Pranay Sethi (supra) at para 59.8 whereby towards loss of Estate Rs.15,000/-, loss of consortium

Rs.40,000/- and funeral expenses Rs.15,000/- is to be given, as such, the compensation amount may be enhanced.

Learned counsel for the respondent no.3, Mr. Manish Kumar has submitted that multiplier has been wrongly used by the learned Tribunal as 17, as the

deceased died at the age of 32 years and he comes under the multiplier of 16 in view of the judgment passed by the Hon'ble Apex Court in the case of

Sarla Verma (Supra) at para 42. The interest has been awarded @ 9% per annum which is excessive and the same has been decided 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 a,s 7.5% per annum.

Learned counsel for the respondent no.3 has further submitted that 50% of the awarded amount has already been indemnified, as such, this Court may

consider the fair and reasonable compensation, but it would be proper if the owner appears in this case from which the Insurance Company has to

recover the amount.

Learned counsel for the respondent no.7, Mr. Alok Lal has submitted that 50% of the awarded amount has already been indemnified.

Considering the same, let the case be listed in the month of February, 2021 so as to have service of notice upon respondent nos.1 and 2 through the

Superintendent of Police, Giridih informing them that the Miscellaneous Appeal is pending for their appearance and they must appear before the High

Court in the Miscellaneous Appeal by 05.02.2021.

Let a copy of this order be communicated through FAX to the Superintendent of Police, Giridih at once.