Radha Devi And Ors vs Srikant Upadhyay And Ors

I.A.No.62 of 2017 has been preferred by the appellants for condonation of delay of 45 days in preferring the appeal and the reason has been

mentioned in paragraphs no.2 to 5 of the Interlocutory Application but the same has been opposed by the learned counsel for the Insurance Company.

After hearing both the sides, it appears that the claimants are widow and the minor child of the deceased, as such, delay is hereby condoned.

The claimants have preferred this Miscellaneous Appeal for enhancement of the award dated 11.08.2016 in Title Motor Vehicle Suit No.78 of 2011

passed by learned District Judge-II-cum-Presiding Officer, Motor Accident Claim Tribunal, Bokaro whereby the claimants have been awarded

compensation to the tune of Rs.4,70,488/- and interest @ 6% per annum from the date of framing of issue i.e. 06.02.2013 till its realization as penal in

nature if not paid within one month from the date of award.

Learned counsel for the appellants, Mr. Rajiv Anand has assailed the impugned award on the ground that monthly income of the deceased has not

been taken rightly by the learned Tribunal though the learned Tribunal has admitted that there was oral evidence brought on record, which suggest the

daily income of the deceased, Raja Ram Paswan as Rs.250/- per day but the learned Tribunal has wrongly considered the same as Rs.151/- per day

though he was in the category of skilled worker.

Learned counsel for the appellants has thus submitted that in view of the judgment passed by the Apex Court in the case of Chameli Devi Vs. Jivrail

Mian & Others 2019 (4) TAC 724 SC the Hon'ble Apex Court has held that it is very difficult to have proof of a carpenter with regard to income

except the oral evidence and considering the same the Apex Court has considered the income of the deceased in that case as Rs.5,000/-per month, as

such, the income of the deceased in the present case may also be considered to be Rs. 5,000/- per month.

Learned counsel for the appellants has further submitted that even as per the notification issued by Department of Labour Government of Jharkhand,

the highly skilled person has notified income of Rs.215.13, which amount to Rs.5,600/- per month, as such, this Court may also consider the same.

Learned counsel for the appellants has further submitted that future prospect of the deceased has not been considered, which ought to have been

added by the learned Tribunal to the tune of 15% per annum.

Learned counsel for the appellants has further submitted that interest ought to have been given in view of 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 )f]rom the date of filing of claim application not

from the date of framing of the issue or any other date without assigning any reason by the learned Tribunal showing that the delay has been caused

because of the claimants, as such, the award may be enhanced.

Learned counsel for the Insurance Company, M/s Chola Mandalam MS General Insurance Company Limited, Mr. Ashutosh Anand has submitted

that learned Tribunal has rightly passed the impugned award considering the notional income of the deceased as Rs.3,926/- per month in view of

Government notification issued vide S.O. No.328 dated 01.04.2011, as such, this Court may not interfere with the same.

Heard, learned counsel for the appellants, Mr. Rajiv Anand and learned counsel for the respondent no.4, Mr. Ashutosh Anand. It appears that the

deceased Raja Ram Paswan aged about 50 years died in an accident on 29.07.2011 at about 8.30 P.M. at Jainamore, Bokaro by a Piagio Ape Tempo

bearing registration No.JH-09M-3370. The vehicle was duly insured before M/s Chola Mandalam MS General Insurance Company Limited vide

Policy No.3368/00356723/000/01 valid from 21.01.2011 to 20.01.2012 and accident occurred on 29.07.2011, as such, the vehicle was duly insured.

The Police has registered Jaridih P.S. Case No.89 of 2011 under Section 279/304A of the Indian Penal Code. The F.I.R. and the postmortem report

of the deceased have been brought on record along with other papers as exhibits-1 to 4 and other documents have been marked as X to X/3 as

mentioned in the impugned award but it appears that the learned Tribunal has wrongly considered the income of the deceased as per the notification

issued by Government of Jharkhand vide S.O. No.328 dated 01.04.2011 without adding V.D.A. (Variable Dearness Allowance) of the deceased of

Rs.14.17, as such, per day income of skilled labour comes to Rs. 163.17 plus Rs.14.17 i.e. Rs. 177.34 x 26 =Rs. 4,610/- per month. 1/3rd of the

income shall be deducted for personal and living expenses of the deceased, thereafter total income comes to Rs.3,073/- x 12 = Rs.36,876/- is the

annual income. 15% future prospect comes to Rs.42,407/- multiplier of eleven is taken as the deceased was in the age group of 50 years, thereafter

amount comes to Rs.42,407 x 11 = Rs.4,66,477/- plus Rs.70,000/- as convention head (15,000/- funeral expenses, 15,000/- loss of state and 40,000/-

love and consortium) that come to Rs.5,36,477/- along with interest 7.5% from the date of application i.e. dated 06.09.2011.

Accordingly, the order is modified to that extent by enhancing the same. The amount already paid by the Insurance Company shall be deducted while

calculating the interest and balance of amount shall be paid to the claimants within a period of 90 days from today.

Accordingly, the appeal is hereby allowed in the aforesaid terms.