Most. Kiran Devi Widow Late Arun Gupta v. Sri Rakesh Kumar Singh

Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 2

1. Kiran Devi W/O Late Arun Gupta Resident Of Rajkiya Laxmi Kanya Pathashala Road, Village And P.O. And P.S. Naugachia, District Bhagalpur (Bihar). Permanent Address Of Village + P.O. Telwa Bazar, P.S. Simurtala, District Jamui (Jharkhand).

2. Ankit Ranjan (Minor Son) Under The Guardianship Of Mother And Natural Guardian Respondent No. 1 Resident Of Rajkiya Laxmi Kanya Pathashala Road, Village And P.O. And P.S. Naugachia, District Bhagalpur (Bihar). Permanent Address Of Village + P.O. Telwa Bazar, P.S. Simurtala, District Jamui (Jharkhand).

3. Piyush Kumr (Minor Son) Under The Guardianship Of Mother And Natural Guardian Respondent No. 1 Resident Of Rajkiya Laxmi Kanya Pathashala Road, Village And P.O. And P.S. Naugachia, District Bhagalpur (Bihar). Permanent Address Of Village + P.O. Telwa Bazar, P.S. Simurtala, District Jamui (Jharkhand).

4. Sri Diwakar Jha S/O Sri Rajendra Jha C/O Nishakar Jha Mohalla Salonatar (Near S.B.I. Training Centre) Deoghar, Jharkhand. 5. Sri Anand Kumar Roy S/O Sri Gopal Roy Mohalla Hanuman Tikri, Village + P.O. + P.S. District Deoghar (Jharkhand).

6. Sri Rakesh Kumar Singh S/O Sri Sureshwar Singh Resident Of Civil Line, Nandan Pahar, Srikant Road At P.O. + P.S. + District Deoghar (Jharkhand).

7. Sri Pramod Kumar Barnwal S/O Sri Ram Kishun Barnwal Village + P.O. Jasidih, (Jharkhand).

8. National Insurance Company Ltd. U.P. Banerjee Road, Cas-Tyres Town, Village + P.O. + P.S. And District Deoghar.

9. Divisional Manager, National Insurance Company Ltd. Sumarit Mandal Complex, Central Jail Road, Tilkamanjhi Road, Bhagalpur. .... .... Respondent/s ===================================================== Miscellaneous Appeal No.248 of 2013 ===================================================== 1. The Divisional Manager, National Insurance Co. Ltd., Bhagalpur Branch Represented Through Its Chief Regional Manager And The Constituted Attorney Office, National Insurance Co. Ltd., 4th Floor, Sone Bhawan, B.C. Patel Marg, P.S. Sachivalaya, District Patna. .... .... Appellant/s Versus 1. Kiran Devi W/O Late Arun Gupta Resident Of Rajkiya Laxmi Kanya Pathsala Road, Naugachhia, P.O. And P.S. Naugachhia, District Bhagalpur, Permanent Resident Of Village And P.O. Telwa Bazar, P.S. Simurtala, District Jamuai (Jharkhand).

2. Ankit Ranjan Minor S/O Late Arun Gupta Minor And Represented Through Their Natural Guardian And Mother Kiran Devi Resident Of Rajkiya Laxmi Kanya Pathsala Road, Naugachhia, P.O. And P.S. Naugachhia, District Bhagalpur, Permanent Resident Of Village And P.O. Telwa Bazar, P.S. Simurtala, District Jamuai (Jharkhand). 3. Piyush Kumar Minor S/O Late Arun Gupta Minor And Represented Through Their Natural Guardian And Mother Kiran Devi Resident Of Rajkiya Laxmi Kanya Pathsala Road, Naugachhia, P.O. And P.S. Naugachhia, District Bhagalpur, Permanent Resident Of Village And P.O. Telwa Bazar, P.S. Simurtala, District Jamuai (Jharkhand). Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 3

4. Rakesh Kumar Singh S/O Sureshwar Singh Resident Of Civil Line, Nandan Pahar, Srikanth Road, At And P.O. And P.S. And District Deoghar (Jharkhand).

5. Anand Kumar Roy S/O Gopal Roy Resident Of Mohalla Hanuman Tikri, P.O. And P.S. Deoghar, District Deoghar (Jharkhand).

6. United India Insurance Co. Ltd., Branch Office, Deoghar (Jharkhand). 7. Divisional Manager, United India Insurance Co. Ltd., Bhagalpur. 8. Diwakar Jha S/O Rajendra Jha C/O Nishakar Jha Of Mohalla Salonatar, Near Sbi Trainign Centre, Deoghar (Jharkhand).

9. Pramod Prasad Barnwal S/O Ram Kishun Barnwal Resident Of Village And P.O. Jasidih (Jharkhand). .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

06. 08-08-2013 I have heard Mr. Mukesh Prasad Singh, learned counsel appearing for the appellants in M.A. No. 898 of 2011, Mr. Sanjay Kumar No. 1, learned counsel for appellant in M.A. No. 88 of 2011 and Mr. Raj Kumar Singh Vikram, learned counsel appearing for the appellant in M.A. No. 248 of 2013 with I.A. No. 5444 of 2013. Since all the three Miscellaneous Appeals arise from the judgment and award dated 28.06.2011 /17.08.2011 passed by the Additional District Judge-II-cum Motor Vehicles Accident Claim Tribunal, Naugachhia, District-Bhagalpur in Claim Case No. 10 of 2008, hence they have been taken up together with a view to its final disposal. M.A. No. 898 of 2011 has been filed by the claimants seeking enhancement of the compensation amount on grounds that neither the computation of monthly income is correct nor the element of future prospects has been taken into consideration by Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 4 the tribunal and even the rate of interest allowed, is on the lower side. According to the claimants the interest should have been awarded at 9 per cent and not 6 per cent as awarded by the tribunal. M.A. No. 88 of 2012 has been filed by the United India Insurance Company the insurer of the tempo bearing registration no. JH 15C 0798 raising objection as regarding the quantum of compensation. M.A. No. 248 of 2013 has been filed by the National Insurance Company Limited together with Interlocutory Application bearing no. 5444 of 2013, praying for condonation of delay of 4 months and 15 days in filing the appeal. The said insurance company is the insurer of the other tempo involved in the accident bearing registration no. JH 15B 5431. Although the stamp reporting in relation to M.A. No. 248 of 2013 reports a delay of 4 months and 15 days only but the same is apparently an incorrect calculation. The award under challenge is dated

17.08.2011 and an application for certified copy of the same was made by the appellant National Insurance Company on 12.10.2011 which was handed over to them on the same date but the appeal was filed only on 01.04.2013. According to the stamp report the limitation expired on 16.11.2011 meaning thereby that the appeal was filed after a delay of not less than one year five months and Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 5 fifteen days. The Stamp Reporter’s report is thus incorrect and is overruled. M.A. No. 898 of 2011 has been filed seeking enhancement of the compensation amount. Mr. Singh in support of the claim for enhancement of the compensation has submitted that it is the specific case of the claimants that the deceased was engaged in stationery business earning about Rs. 10,000/- per month and in support whereof cash memos were led as exhibits bearing Exhibit No. 1 to 1/35. It is contended that the tribunal without assigning any reason, has disbelieved the same and proceeded to compute the compensation on a notional income of Rs. 175/- per day. It was submitted by Mr. Singh that even thereafter the computation is not correct, as the monthly income has been computed on the basis of 25 working days and not 30 days. With reference to the judgment of the Supreme Court rendered in the case of Santosh Devi vs. National Insurance Company Ltd. reported in (2012) 6 SCC 421, it was submitted that no provision has been made towards future prospects. It is contended that their Lordships of the Supreme Court while discussing cases of fixed income, had taken into consideration a certain percentage towards future prospects as applicable to fixed income group but which is missing in the present case. It was submitted that normally the tribunals have been awarding interest at the rate of 9 per cent but Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 6 the tribunal for the reasons best known has reduced it to 6 per cent to the detriment of the claimants. He thus submits that the compensation so awarded by the tribunal requires to be enhanced on all three fronts i.e. the monthly income, towards future prospects and the interest rate. Mr. Sanjay Kumar No. 1 appearing for the United India Insurance Company, while contesting the argument of Mr. Singh, has also advanced arguments in support of the appeal filed by the said Insurance Company which is subject matter of M.A. 88 of

2012. It is submitted that no case for enhancement is made out by the claimants rather the tribunal has committed a serious error in awarding an exorbitant compensation even in absence of any authentic proof supporting the income. It is submitted that the notional monthly income of Rs. 4,375/- determined by the tribunal, is without any evidence. It is further submitted that in absence of any authentic proof supporting the monthly income, the tribunal should have relied upon the minimum wage applicable i.e. Rs. 100/- per day and not Rs. 175/- per day. Mr. Raj Kumar Singh Vikram has appeared on behalf of the National Insurance Company Limited who are the appellants in M.A. No. 248 of 2013. Mr. Vikram has questioned the liability cast upon the insurance company under the award. It is contended that a plain reading of the manner of occurrence Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 7 suggests that it was a hit and run case. Apart from raising ornamental issues like non-production of driving licence it is submitted that in absence of any charge of rash or negligent driving by the driver of the tempo bearing No. JH 15B/5431, no liability could be thrust upon the insurance company and the award to that extent is unsustainable. I have heard learned counsel for the parties and I have perused the award under challenge in the three appeals. It is not in dispute that the husband of the claimant Kiran Devi died in an accident while riding Tempo No. JH15C-0798 when it was dashed by a truck followed by another collision with the second tempo bearing No. JH 15B-5431 and which caused such injury on the person of the victim Arun Gupta and he succumbed to the injuries during the course of treatment on the same day. The death in accident is not in question. It is also not in dispute that the vehicles involved were duly insured and that it is for this reason that the insurance company covering the two tempos are trying to question the award on separate issues including the quantum of compensation. Insofar as the appellant United India Insurance Company Limited is concerned, the sole attack is towards the quantum of compensation and the notional income fixed on grounds of absence of basis. Insofar as the appellant National Insurance Company is concerned, apart from the challenge to the Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 8 computation of the compensation amount, an issue of ‘hit and run’ has been introduced. It is necessary to mention here that the issue of ‘hit and run’ is being introduced by the National Insurance Company who is the insurer for the tempo no. JH-15B-5431 who himself is a party to the accident. Besides, the records manifests that whereas the award was passed on 28.06.2011 /17.08.2011, an application for certified copy was made on behalf of the National Insurance Company on 12.10.2011 and was received by the said insurance company on the same day but it has taken them not less than one year 15 days to realize that an appeal was required to be filed and that also after a copy of the memo of appeal filed by the claimants bearing M.A. No. 898 of 2011 was served upon them on

9.4.2013. It is more than apparent that the appeal preferred by the National Insurance Company besides raising issues bereft of merit, is a clear attempt to pre empt the claim set up by the claimants for enhancement of the compensation. The reasons assigned in the limitation petition in trying to explain the delay of one year and five months is equally bereft of merit. For the reasons aforementioned, M.A. No. 248 of 2013 and I.A. No. 5444 of 2013 are dismissed. Insofar as M.A. No. 88 of 2012 is concerned, there is neither any arbitrariness nor lack of application of mind by the tribunal in determination of the quantum of compensation or the Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 9 notional income of the deceased requiring interference by this Court and for the said reason M.A. No. 88 of 2012 is also dismissed. That brings this Court to the issue raised by the claimants praying for enhancement. It is more than manifest from the reading of the impugned award that except for the bills marked as Exhibit-1 to Exhibit-1/35 nothing was led by the claimants in support of the claim that the deceased was engaged in stationery business with Kamal Traders. Apart therefrom the evidence given by the Surveyor and Investigator reported that no such shop or firm existed by the name of Kamal Traders. It is stated by Mr. Singh that the bills which was submitted only related to the purchase made by the husband of the claimant. This aspect in no manner comes to the aid of the claimants because the situation yet remains that there is complete absence of evidence regarding the deceased being engaged in the business of stationery. In the circumstances, the notional income taken into consideration by the tribunal cannot be faulted with. Insofar as the period of leisure is concerned, may be when a notional income is taken on the basis of daily wage, the calculation is to be made with respect to 26 working days as against which the tribunal has computed with respect to 25 working days. As regarding the rate of interest, it is noted that the same has varied Patna High Court MA No.898 of 2011 (6) dt.08-08-2013 10 between 6 to 9 per cent from case to case and in some cases even a higher rate has been awarded but considering that this is a discretionary power vested in the tribunal under Section 171 of the Act, this Court is not persuaded to interfere with the same. Coming to the issue of future prospect, this Court is of the opinion that considering the minimum wage applicable to daily wage earners the rate of minimum wage fixed by the tribunal at Rs. 175 per day and the notional income arrived at, is apparently on a higher side and takes care of future prospects. For the reasons aforesaid, M.A. No. 898 of 2011 is also dismissed. Let the statutory amount deposited by the appellants insurance company be remitted to the tribunal concerned for its disbursement in accordance with law. S.Sb/- (Jyoti Saran, J)