Miscellaneous Appeal No. 845 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.845 of 2011 ====================================================== 1. Kanchan Devi W/O Late Raj Kumar Mandal Resident Of Village- Naya Ramnagar,P.O. Masadu, P.S. Sabour And District- Bhagalpur 2. Nilam Kumari D/O Late Raj Kumar Mandal Resident Of Village- Naya Ramnagar,P.O. Masadu, P.S. Sabour And District- Bhagalpur 3. Indra Kumar Late Raj Kumar Mandal Resident Of Village- Naya Ramnagar,P.O. Masadu, P.S. Sabour And District- Bhagalpur 4. Mithun Kumar Late Raj Kumar Mandal Resident Of Village- Naya Ramnagar,P.O. Masadu, P.S. Sabour And District- Bhagalpur 5. Jaya Devi W/O Late Jagar Nath Mandal @ Baij Nath Mandal Resident Of Village- Naya Ramnagar,P.O. Masadu, P.S. Sabour And District- Bhagalpur .... .... Appellant/s Versus 1. Shyam Prit Yadav Late Naga Yadav Resident Of Gogha Bazar, P.O. Gogha, P.S. Kahalgaon, District-Bhagalpur 2. Mukesh Yadav Mohan Yadav Resident Of Village- Gopalpur, Gogha Bazar, P.O. Gogha, P.S. Kahalgaon, District-Bhagalpur 3. The Divisional Manager United India Insurance Co. Ltd., Bhagalpur .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Madan Mohan,Adv. For the Respondent/s : Mr. Durgesh Kumar Singh, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 6 28-10-2013 Heard Mr. Madan Mohan, learned counsel for the appellant and Mr. Durgesh Kumar Singh, learned counsel for the Insurance Company. I.A. No. 5728 of 2013 This interlocutory application under Section 5 of the Limitation Act has been filed for condonation of delay of 8 days in filing the appeal. Having heard learned counsel for the parties and having perused the materials on record and for the reasons assigned in the 2
Legal Reasoning
Patna High Court MA No.845 of 2011 (6) dt.28-10-2013 2 / 6 application, the prayer is allowed. The delay is condoned. Interlocutory application stands allowed. Re:M.A. No. 845 of 2011 This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’) has been filed for enhancement of the compensation amount awarded under the judgment and award dated 25.5.2011/27.6.2011 passed by the Additional Sessions Judge, F.T.C.I-cum Motor Vehicle Accident Claim Tribunal, Bhagalpur in Claim Case No. 55 of 2004 whereby the claim has been allowed with interest payable from the date of order. Facts are not in dispute. The deceased Raj Kumar Mandal while standing on his door steps on 23.3.2004, was dashed against by the offending tractor bearing Registration No. BR-10B-1213 giving rise to F.I.R. bearing Sabour P.S. Case No. 62 of 2004 registered on the statement made by the deceased himself, who succumbed during the course of his treatment thereafter on 24.3.2004. The claimants before the Tribunal are the widow, the children and the mother of the deceased. The claimants setting up a claim of Rs. 3,69,500/- filed the claim case giving rise to Claim Case no. 55 of 2004 on 24.4.2004 and which has since been allowed by the judgment and award impugned. The claimant being aggrieved by the quantum of compensation as also by the 3 Patna High Court MA No.845 of 2011 (6) dt.28-10-2013 3 / 6 date from which the interest has been awarded, are before this Court in appeal.
Legal Reasoning
I have heard Mr. Madan Mohan, learned counsel for the appellants and Mr. Durgesh Kumar Singh, learned counsel for the Insurance Company. In the nature of challenge before this Court in the present appeal, this Court does not deem it necessary to issue notice to the owner and driver of the offending vehicle, since it is the quantum which is under challenge and not the liability. It is the case of the appellants while setting up their appeal for enhancement that even when the claimants have advanced their case for computation of their compensation on the basis of the monthly income of the deceased at Rs. 3000/- per month being his earning as a bicycle mechanic, the Tribunal has committed a serious error in relying upon paragraph 6 of second Schedule to the Act which is referable in the case of non-earning victims. It is further submitted that the Tribunal has also committed a serious error in having awarded the interest only from the date of order in view of the statutory provisions underlying Section 171 of the Act. The arguments of Mr. Mohan has been contested by Mr. Singh to submit that the computation of compensation has been as per the understanding of the Tribunal which suffers from no perversity and thus this Court may not interfere with the same. 4 Patna High Court MA No.845 of 2011 (6) dt.28-10-2013 4 / 6 I have heard learned counsel for the parties and I have perused the materials on record. The only issue that is in contest before this Court is whether the reliance placed by the Tribunal on the second Schedule to the act, to compute the monthly income of the deceased is sustainable. The answer is plain and simple in the negative. Paragraph 6 of the second Schedule is only applicable to the case of non earning victims. While it is the specific case of the appellants that the deceased was working as a bicycle mechanic and was earning Rs. 3000/- per month though no evidence was adduced by them in support thereof but yet going by the minimum wage applicable during the relevant time, the monthly income of a person discharging a function as a bicycle mechanic at Rs. 3000/- per month, is not such unreasonable so as to warrant rejection. In fact going by the rate of minimum wages as fixed by the Labour Department during the period in question, the monthly income as stated by the appellants before the Tribunal, is acceptable and the monthly income of the deceased Raj Kumar Mandal is accepted at Rs. 3000/- meaning thereby an annual income of Rs. 36000/- per annum. Having assessed the annual income of the deceased, following the principles of deduction towards personal and living expenses of the deceased in terms of the law settled in case of 5 Patna High Court MA No.845 of 2011 (6) dt.28-10-2013 5 / 6 Sarla Verma reported in (2009)6 SCC 121, since the deceased was married and there are five dependents, a deduction of ¼ from the annual income would be admissible towards the personal living expenses of the deceased i.e. Rs.3600-9000/-=Rs.27000/- per annum, which would be the contribution to the family. Mr. Durgesh Kumar Singh submits that the appellants had sought for deduction of only 1/3 but this Court would be considering the law as settled by the Supreme Court and not guided by the submissions made by the parties. The deceased was aged about 40 years and thus following the principle laid down in paragraph 42 of the judgment of Sarla Verma (supra) the correct multiplier would be 15. Thus the loss of dependency would be Rs. 27,000 x 15= Rs.4,05,000/-. A sum of Rs. 2000/- towards funeral expenses, Rs. 5000/- towards loss of consortium and Rs. 2500/- towards loss of estate has been awarded by the Tribunal. Thus the total compensation payable would be Rs. 4,05,000+9,500/-= Rs.4,14,500/-. The said compensation amount would be accompanied with interest at the rate of 6% per annum payable from the date of filing of the claim case i.e. 24.4.2004. It is stated by Mr. Singh that a sum of Rs. 50,000/- by way of interim compensation and a sum of Rs. 1,20,589/- has been paid by the Insurance Company on 2.8.2011 towards discharge of the liability, under the award. 6 Patna High Court MA No.845 of 2011 (6) dt.28-10-2013 6 / 6 In view of the statement made by Mr. Singh, the balance amount payable to the appellants would be Rs. 4,14,500-50,000/- =Rs.3,64,500/- and reducing a sum of Rs. 1,20,589/- therefrom, the balance compensation payable after enhancement would be Rs. 2,43,911/- The balance compensation of Rs. 2,43,911/- would be payable to the appellants together with interest at the rate of 6% from the date of filing of the claim case i.e. 24.4.2004 until 2.8.2011 which is the date of payment made by the Insurance Company as per the liability under the impugned award. The payment is to be made within a period of 3 months from the date of receipt/production of a copy of this order. The judgment and award impugned stands modified to the aforesaid extent. This appeal stands allowed. Bibhash/- (Jyoti Saran, J)