Chinta Devi And Ors vs Mukesh Kumar Mahato And Ors

I. A. No.1395 of 2017

Learned counsel for the appellants has submitted that this Miscellaneous Ap-peal has been preferred with delay of 392 days and for condonation of the same I. A. No.1395 of 2017 has been filed.

Considering the reason assigned in paragraph nos.5 to 8 of the Interlocutory Application the delay of 392 days in preferring the instant Miscellaneous Appeal is hereby condoned.

Accordingly, I.A. No.1395 of 2017 is hereby allowed.

M.A. No. 58 of 2017

Heard, learned counsel for the appellants, Mr. Rajiv Kumar Karan.

The claimants, namely, Chinta Devi, Kishan Kumari, Mala Kumari, Bigan Kumari and Chotu Kumar are the appellants before this Court. The claimants/appellants have preferred this appeal for enhancement of award dated 05th October, 2015 in Title (M.V.) Claim Case No. 50 of 2010 passed by learned District Judge-XIII-cum-P.O., MACT, Dhanbad, whereby the claimants have been awarded compensation to the tune of Rs. 4,95,300/- along with simple interest @ 6% per annum from the date of filing of the claim application i.e 09.03.2010.

Learned counsel for the appellants, Mr. Rajiv Kumar Karan has assailed the impugned award on the ground that learned Tribunal has wrongly consid-ered the income of the deceased as Rs. 3,000/- and has also not given future prospect. Apart from that Tribunal has wrongly granted interest @ 6% instead of @7.5% contrary to the judgment passed by the Apex Court in the case of Dharmpal and Sons Vs. U.P. State Road Transport Corporation [2008 (4) JCR 79 (SC)].

Learned counsel for the appellants has further submitted that under the conventional head the Tribunal has given a sum of Rs. 34,500/-. (Rs. 2,500/ as funeral expenses, Rs. 2,000/- as loss of state, Rs. 5,000/- as loss of consor-tium and Rs. 25,000/- as loss of love care and affection to all the minor chil-dren), which is contrary to the judgment of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. as reported in (2017) 16 SCC 680 whereunder the conventional head Rs. 70,000/- is payable to claimants (Rs.15,000/- as funeral expenses, Rs. 15,000/- as loss of state and Rs.40,000/- as loss of consortium), as such, necessary order may be passed.

Learned counsel for the appellants, Mr. Rajiv Kumar Karan has placed a judgment of the Hon'ble Apex Court Chameli Devi Vs Jivrail Mian as reported in 2019(4) TAC 724 SC where carpenter had no documentary evidence for income but Hon'ble Apex Court considered his income to be Rs. 5,000/- per month thereby enhanced the amount and the case is of the State of Jharkhand it-self.

Considering the same, this Court may consider and enhance the in-come of the deceased to Rs. 5,000/- per month. Future prospect @ 40% may be given in view of the fact of the case of Pranay Sethi (supra) and rate of interest may be given 7.5% instead of 6% in view of judgment passed by Apex Court in the case of Dharmpal & Sons (supra) and further Rs. 70,000/- should be given under conventional head. 1/4th of the income is deducted towards personal and living expenses in view of judgment passed by Apex Court in the case of Sarla Verma (Smt.) & Ors Vs. DTC & Anr (2009) 6 SCC 121.

Learned counsel for the Insurance Company has submitted that learned Tribunal has rightly considered income as Rs.3000/- per month as income of the deceased could not be proved cogently by the claimants. So far future prospect is concerned, it has rightly been not given as deceased had no fixed income as he was a biscuit seller by moving as ferrywala. Learned counsel for the Insurance Company has further submitted that the learned Tribunal has deducted 1/5th of the income towards personal and living expenses which should be 1/4th of the income in view of the judgment of Sarla Verma (supra) as the number of dependent per-sons are five.

Learned counsel for the Insurance Company has fairly submitted that less interest @ 6% has been given, which should be @ 7.5% in view of judgment passed by Apex Court in the case of Dharmpal & Sons (supra) and under con-ventional head also less amount has been given as Rs.34,500/-, which should be Rs.70,000/- in view of the fact of the case of Pranay Sethi (supra).

It appears from the impugned award that issue nos.5 &6 have been framed by the learned Tribunal, which are followed:-

Whether the driver of Dumper BHW/1954 had a valid and effective driving licence at the time of accident?

Whether the Dumper No. BHW/1954 had a valid and effective per-mit at the time of accident?

From perusal of the impugned award at page-4 it appears that learned Tribunal has decided the issue nos.5 & 6 in favour of the owner of the offend-ing vehicle.

Heard, learned counsel for the parties and perused the materials brought on record. It appears that the learned Tribunal has wrongly considered the income of the deceased contrary to the judgment passed by the Apex Court in the case of Chameli Devi (supra) where the Apex Court has held that it is very difficult to have documentary evidence of income of carpenter and considered the income of the deceased in that case to be Rs.5000/-. Same principle is applied here. It is very difficult to have income certificate of Ferrywala, as such, this Court also applies the same principle and enhance the income of the deceased from Rs.3000/- to Rs.5000/- per month along with 40% future prospect in view of the judgment of Pranay Sethi (supra). 1/4th is to be deducted towards personal and living expenses of the deceased in view of the judgment of Sarla Verma (supra). Under the conventional head Rs.70,000/-(Rs.15,000/- as loss of estate, Rs.15,000/- as funeral expenses and Rs.40,000/-as loss of consortium) is to be given in view of judgment passed by the Apex Court in the case of Pranay Sethi (supra).

The awarded amount shall be given with interest @7.5% per annum from the date of filing of the claim application in view of the judgment of Apex Court in the case of Dharmpal (supra).

Accordingly, the new calculation chart is as follows:-

Income

Rs.5,000/-

40% future prospect

Rs.5000 + 2000=7,000/-

Annual Income

Rs.7,000 x 12 = Rs.84,000/-

1/4th deduction towards personal and living expenses

Rs.84,000 x 1/4= Rs.21,000/-

Total income

Rs.84,000-21,000=Rs.63,000/-

Multiplier of 16 (as the deceased was in the age group of 35 years)

Rs.63,000/- x 16 = Rs.10,08,000/-

Conventional head

Rs.70,000/-

Total compensation amount

Rs.10,08,000 + 70,000= Rs.10,78,000/-

Interest

Rs.10,78,000/- along with simple interest @ 7.5% per annum from the date of filing of claim application before the claim Tribunal.

As such, the claimants are entitled for compensation of Rs.10,78,000/-along with interest @ 7.5% per annum from the date of filing of the claim application i.e 09.03.2010.

Accordingly, this appeal is allowed in aforesaid terms.

The Insurance Company is directed to satisfy the award. The amount already paid to the claimants shall be deducted from the new calculated amount. It is expected that Insurance Company shall satisfy the award within a period of 90 days from today.