Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.1307 of 2009 ====================================================== National Insurance Company Ltd. its Divisional Manager having its Divisional Office at Shanti Market, P.S. Civil Lines, District-Gaya through Sri Anjani Kumar working as A.O. and duly constituted attorney of Natioanl Insurance Company having its Regional Office at 4th Floor, Sone Bhawan, P.S. Sachiwalaya, District-Patna Versus .... .... Petitioner/s 1. Mosst.Sharda Devi, W/o Late Jitendra Prasad 2. Khusbu Kumari, D/o Late Jitendra Prasad (Minor) under the guardianship of her mother Mosst. Sharda Devi 3. Janardan Yadav, S/o Late Mahavir Yadav All resident of village-Pharpur, P.S. Magadh Medical College, District-Gaya 4. Smt. Rekha Yadav, W/o Sri Kamal Yadav, resident of village- Chandauti, P.S. Chandauti, District-Gaya, owner of bus bearing its Registration No. BR 2E 2538 .... .... Opposite Party/s ====================================================== Appearance: For the Petitioner/s : Mr. Shailendra Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 06. 15-03-2013 Heard Mr. Shailendra Kumar, learned counsel appearing on behalf of the petitioner. This Civil Revision application is directed against the judgment and award dated 04.03.2009 / 13.3.2009 passed by the learned Motor Vehicle Accident Claim Tribunal-cum-District Judge, Gaya in a matter arising from Motor Accident Claim Case No. 104 of 2007, whereby the learned court below in exercise of powers vested under Section 166 of the Motor Vehicles Act, has been pleased to direct for payment of Rs. 2,49,452/- by way of compensation together with interest quantified @ 8 per cent per annum from the date of filing of the Claim Case on 14.9.2007 to the claimants.
Legal Reasoning
Patna High Court C.R. No.1307 of 2009 (6) dt.15-03-2013 2 Facts of the case in brief is that the claimants who are the wife, the daughter and the father of the deceased Jitendra Prasad had filed the claim application against the insurance company for compensation of Rs. 2, 50,000/- on account of death of Jitendra Prasad in an accident. It is the case of the claimants that the deceased Jitendra Prasad alongwith other co-villagers were returning home after visiting the Rajrappa temple in the bus in question. As the driver of the bus was driving the vehicle very rashly and negligently the driver lost control of the vehicle and the bus fell down at a place near Jania Mara more on the western side of the road. The deceased who was travelling in the bus received multiple injuries and died during the course of his treatment at the R.M.C.H., Ranchi (Jharkhand). The police instituted a criminal case on the statement of the local Chaukidar giving rise to Ramgarh P.S. Case No. 135 of 2005 registered for offences punishable under Section 279, 337, 338 and 304A of the Indian Penal Code. It is stated that the deceased was earning Rs. 3,000/- per month as a Rajmistri. The owner of the vehicle is
Legal Reasoning
opposite party no. 4, Smt. Rekha Yadav and the vehicle was duly insured with the National Insurance Company Limited. Responding to the claim, the insurance company appeared and filed their written statement requiring the owner of the vehicle to pay compensation apart from raising other objection. A stand was taken that since the driver did not hold valid license, hence the Patna High Court C.R. No.1307 of 2009 (6) dt.15-03-2013 3 company was not liable for payment of the compensation. The company also contested the claim on the age and income of the deceased. On the basis of the rival contentions issues were framed by the Tribunal. The Tribunal on the basis of the oral and documentary evidence adduced by the parties and taking note of the First Information Report and the postmortem report confirmed that the deceased had suffered multiple injuries in the bus accident and died during the course of treatment. The oral evidence led by the claimants fully supported the fact of negligent driving by the bus driver leading to the bus accident. The Tribunal having decided the issue that the deceased had suffered multiple injuries in the bus accident, which bus was owned by the opposite party no. 4 herein Smt. Rekha Yadav held her liable to pay compensation. Since the vehicle was insured with the National Insurance Company under a valid policy and which fact was never denied by the insurance company, hence the Tribunal held the insurance company liable to indemnify the owner of the vehicle for the injury caused to the passenger in the vehicle. Having settled the issues regarding the deceased suffering injuries in the accident which ultimately led to his death as also that the vehicle was validly insured with the insurance company and who were liable to indemnify the owner for the compensation, now the turn was for calculation of the compensation amount. Although the claimants set up a claim for Patna High Court C.R. No.1307 of 2009 (6) dt.15-03-2013 4 compensation of Rs. 2, 50,000/- on the ground that the deceased was earning Rs. 3,000/- per month but the Tribunal taking note of the oral and other evidence came to a conclusion that the monthly income of the deceased would be Rs. 2132/-. Calculating the annual income on that basis and after deducting one-third amount from the same by way of living expenses of the deceased, and applying a multiplier of 17, the compensation was calculated at Rs. 2, 89, 952/-. In addition thereto the Tribunal also found the widow entitled to consortium of Rs. 5,000/-, funeral expenses at Rs 2,000/- and loss of estate of Rs. 2500/-, the total being Rs. 9500/-. The total compensation amount thus was calculated at Rs. 2, 89,952 + 9500 = 2,99,452/-. After deducting the amount of Rs. 50,000/- paid by the insurance company under Section 140 of the Act therefrom, the balance compensation amount came to Rs. 2, 49,452/-. The Tribunal found the claimants entitled to interest @ 8 % per annum to be calculated from the date of filing of the claim application on 14.09.2007 until its payment. The insurance company was directed to make payment of the said amount within two months of the order. The insurance company being aggrieved have filed this Civil Revision application. I have heard Mr. Shailendra Kumar, learned counsel for the petitioner-insurance company and I have perused the materials on record. Apart from the ornamental grounds raised in the present application, the insurance company has sought to question the Patna High Court C.R. No.1307 of 2009 (6) dt.15-03-2013 5 award on grounds that the calculation of annual income of the deceased was erroneous and was not supported by any proof and that the calculation made relying upon a notification relating to Minimum Wages, was illegal. Thus the award was sought to be questioned only on the issue of calculation of the income of the deceased. It is true that no paper was filed by the claimants supporting the income of the deceased but then these circumstances do exist in cases of self employed / labour class persons like mason etc., who do not have evidentiary proof of their earnings. In such category of cases, the Tribunal is required to record its finding on the basis of the oral evidence adduced. Insofar as the engagement of the deceased is concerned, there were oral evidence to support that he was working as a Rajmistri and was earning in between Rs. 2500/- to 3000/- per month. In view of the oral evidence supporting the engagement of the deceased as a Rajmistri and in view of the fact that the insurance company could not controvert the evidence led by the claimants, the learned Tribunal very rightly relied upon the notification relating to minimum rate of wages as admissible to a Rajmistri / mason which determined their wages at Rs. 82/- per day. The Tribunal thereafter calculating the monthly income on the basis of 26 days of working by excluding Sundays as admissible to such category of labour, determined the annual income and after Patna High Court C.R. No.1307 of 2009 (6) dt.15-03-2013 6 deducting the living expenses amount on the basis of second schedule to the Act, calculated the compensation amount by applying a multiplier of 17 which is the correct multiplier. Even the rate of interest awarded by the Tribunal is most appropriate. In the circumstances surrounding the claim case, there could not have been more just calculation of monthly income than the one determined by the Tribunal in the light of unimpeachable documents supporting such determination. The award in question neither suffers from any legal infirmity nor any statutory violation warranting any interference. For the reasons aforesaid, this Court is not inclined to interfere with the award under challenge. This application is accordingly dismissed. S.Sb/- (Jyoti Saran, J)