The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No. 52 of 2020 1. Smt. Rubiya Kahtun @ Smt. Rubiya Khatoon (aged about 32 years) wife of Late Sahabuddin Ansari @ Saheb Ansari. 2. Sahbaj Alam (aged about 14 years) son of Late Sahabuddin Ansari @ Saheb Ansari. 3. Sahin Praveen (aged about 12 years) daughter of Late Sahabuddin Asnari @ Saheb Ansari 4. Seema Praveen (aged about 11 years) daughter of Late Sahabuddin Ansari @ Saheb Ansari 5. Arwaj Ansari (aged about 09 years) son of Late Sahabuddin Ansari @ Saheb Ansari 6. Korsa Khatoon @ Korsa Khatoon (aged about 53 years) wife of Md. Manan Ansari The appellant no. 2 to 5 are presently minor being represented through their mother and natural guardian Smt. Rubeeya Khatun @ Smt. Rubiya Khatoon appellant no. 1 herein; All are resident of village Baxidih Road, Ward No. 5, P.S. Giridih (T), Post Giridih, District Giridih … … Appellants Versus 1. Chetan Kumar Toyal son of Ghanshyam Das Gupta Resident of village – Station Road, Bhaga, Post – Bhaga P.S. Jhariya, District – Dhanbad 2. Mangal Das son of Sri Gopal Das Resident of Village – 128 Khatatand Amtal Post – Khatatand, P.S. Katras, District- Dhanband 3. Bajaj Allianz General Insurance Company Limited Represented Through its Branch Manager, Bank More, Katras Road, P.S. Dhanbad Post- Dhanbad, District – Dhanbad, PIN Code – 826001 4. Pradeep Gupta son of Sarju Prasad, Resident of Harsinghraidih, Post – Burhiadih, P.S. Giridih (M), District – Giridih 5. Khalil Ansari, son of Late Subrah Ansari, Resident of Village- Tundi, P.S. Tundi, Post – Tundi, Dhanbad, District – Dhanbad 6. United India Insurance Company Limited, Represented through Manager Baxidih Road, Giridih, Post – Giridih, P.S. Giridih (T), District-Giridih … … Opposite Parties --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellants
Legal Reasoning
by this Court in M.A. No. 284 of 2017 and has referred to paragraph 10 thereof to submit that mason comes under skilled labour and the minimum wages with respect to mason as recorded in the said judgment has been mentioned at Rs. 335/- per day. In the said judgment, an earlier judgment was also relied upon wherein the Hon’ble Court by referring to the minimum wages took the income of mason at Rs. 6448/- per month. 2 (ii) The second point is that the deduction on account of personal expenses has been taken as one-fifth although as per the judgment passed by the Hon’ble Supreme Court the deduction ought to have been one-fourth when the number of dependency is 4 to 6. (iii) The third point is that so far as the loss of consortium is concerned, the same has been given at Rs. 70,000/- in total under conventional head although loss of consortium was required to be awarded at Rs. 40,000/- for each claimant. (iv) The fourth point is with respect to the interest. The learned counsel has submitted that the interest @ 7% has been given although the learned Tribunal ought to have been given interest @ 9%. Arguments of the respondents 3. The learned counsel appearing on behalf of the respondents, while opposing the prayer, has submitted that the income has been fixed at Rs. 3,000/- per month and the date of accident is 11.06.2012 and even if the minimum wages of mason in 2012 is taken into consideration, the same was @ Rs. 150/- per day, then the monthly income taking 26 days would come at Rs. 3900/- round of to Rs. 4,000/-. He has submitted a calculation taking the monthly income at Rs. 4,000/- has been furnished. 4. The learned counsel has submitted that in absence of any documentary evidence the monthly income could have been fixed only by referring to the minimum wages and the oral evidence in that regard cannot substantiate the monthly income of the deceased as the employer was never examined before the Court. 5. So far as the deduction is concerned, he submits that since the dependency was total 6 in number, the deduction ought to be one-fourth. 6. With regard to conventional head, the learned counsel submits that the total amount of Rs. 70,000/- only was to be paid on account of conventional head and the claim of Rs. 40,000/- per head on account of consortium is not sustainable in the eyes of law. 7. With regard to claim of interest, the learned counsel submits that it was for the claimant to substantiate the bank rate of interest before the court but no 3 such evidence was led by the claimant and therefore the rate of interest as awarded by the court to the extent of 7% does not call for any interference. 8. He has further submitted that in the case of Delhi Transport Corporation vs. Dharampal & Sons, on account of no evidence regarding bank rate of interest, 7.5% interest was taken into consideration. Findings of this court. 9. Upon hearing the learned counsel for the parties essentially following two issues arise for consideration in this appeal: (A) Whether Learned Tribunal was justified in holding that the claimants have failed to prove that the deceased was mason and his monthly income was Rs. 6,500/- and thereby justified in taking the monthly income of the the deceased compensation. as Rs. 3,500/- computing for (B) Whether the compensation as fixed by the learned Tribunal is in accordance with the various judicial pronouncement by the Hon’ble Supreme Court so as to be called just and fair compensation. 10. During the course of hearing, it is not in dispute that the date of accident is 11.06.2012 at about 12:00 PM when the deceased Sahabuddin Ansari @ Saheb Ansari along with other passengers was travelling by Mahindra Sawari vehicle No. JH-11F-4401 and when it reached in front of a petrol pump at Tundi road in the district of Dhanbad a truck bearing registration No. JH10T- 3296 was seen coming from the opposite side and was being driven in rash and negligent manner which hit the Mahindra Sawari vehicle due to which four passengers including the deceased involved in the present case fell down on the road and the deceased was crushed by the offending truck. The deceased died on the spot and further two persons died during treatment. In connection with the incident FIR was lodged vide Giridih P.S. Case No. 245/2012 dated 11.06.2012 which was registered under Sections 279/337/338/304(A) of the Indian Penal Code against the drivers of both the vehicles. 11. The claimant No. 1 was the wife of the deceased and claimant No. 2 to 5 were the minor sons and daughters of the deceased and claimant No. 6 was the mother of the deceased. Originally father of the deceased was also made a 4 claimant. However, on account of death of father during the pendency of the case before the tribunal, his name was expunged from the claim petition. 12. The opposite party No. 1 and 2 before the Tribunal were the owner and driver of the offending tuck bearing registration No. JH10T-3296 and the opposite party No. 3 before the Tribunal was insurer of the truck. The opposite party No. 4, 5 and 6 were the owner, driver and insurer of Mahendra Sawari vehicle No. JH11F-4401 respectively. The opposite party No. 1 and 2 i.e. the owner and the driver of the offending truck were proceeded ex-parte and the opposite party No. 4 and 5 who were the owner and driver of the Mahindra Sawari vehicle were debarred from filing the written statement. 13. It further appears from the impugned judgement itself that vide order dated 25.04.2015 an application was filed under section 140 of Motor Vehicles Act was allowed and the opposite party No. 3 i.e. M/s Bajaj Allianz General Insurance Co. Ltd and opposite party No. 6 M/s United India Insurance Co. Ltd. were directed to pay an amount of Rs 50,000/- in equal shares of Rs, 25,000/- each to the claimants on the basis of no-fault liability. 14. The opposite party No. 3 admitted that the truck was duly insured at the time of the accident. However, they denied the entire claim of the claimants. It was pleaded that the driver of the vehicle was not in possession of a valid and effective driving license on the date of accident and thereby breached the terms and conditions of the insurance policy. It was also asserted that the accident had taken place on account of the other vehicle being driven in rash and negligent manner. 15. The Opposite party No. 6 before the learned Tribunal i.e. other insurance company also denied the entire liability and it was pleaded that the deceased was sitting on the roof of the Mahindra Sawari vehicle and they fell down and were crushed. It was pleaded that the driver and the owner of the vehicle insured by opposite party No.6 had no valid legal document to ply the vehicle at the time of the accident and it was alleged that there was violation of terms and conditions of policy. 16. As many as six issues were framed by the learned Tribunal which are as follows: 5 I. Whether, claimants have valid cause of action to proceed in this claim case, if so, against whom? II. Whether it is a case of 100% own contributory negligence of driver of over loaded passenger vehicle no. JH11F- 4401 who was driving the vehicle rashly and negligently, without holding any driving license and he suddenly dashed against Truck no. JH10T-3296 in opposite direction? III. Whether owner of offending vehicle no. JH11F-4401 and Truck no. JH10T-3296 possessed all valid and effective vehicular papers such as R.C. Books, Tax Token Policy of Insurance, fitness certificate, Route permit, and drivers holding a valid and effective driving license with endorsement of Public Service vehicle and Heavy Goods Carrying vehicle Badge, on the driving license at the relevant time of alleged accident? IV. Whether the claimants have proved actual age, income and occupation of deceased Sahabuddin Ansari by reliable documentary evidence or not? V. Whether claim applicants are entitled to compensation, even on contributory negligence basis, if so, to what extent and from whom? VI. Whether there is violation of statutory terms and condition of the policy of insurance issued by the O.P. no. 3 Bajan Allianz General Insurance Co. Ltd. and the sum if any paid by this insurer shall be recoverable from owner of truck no. JH10T-3296? 17. After considering the materials on record it was directed as follows: Therefore, it is hereby ordered, that (I) That out of Rs. 6,65,120/- with interest 50% i.e. an amount of Rs. 3,32,560/- with 7% interest shall be payable by O.P. no. 3 and 50% of amount of Rs. 3,32,560/- with 7% interest shall be payable by O.P. no. 6 in following manner: (II) O.P. no. 3 shall deposit an account payee cheque of Rs. 1,32,560/- with interest in the name of claimant no. 1 and O.P. no. 6 shall also deposit an account payee cheque of 6 Rs. 1,32,560/- with interest in the name of claimant no. 1 wife of deceased. (III) Further, account payee cheques of Rs. 40,000/- shall be deposited by both O.P’s i.e. O.P. no. 3 and 6 in the names of claimant nos. 2 to 6 and cheques issued in the names of OP nos. 2 to 5 shall be deposited as fixed deposit in any nationalized bank in the names of claimant no. 2 to 5 which will be encashed only after attaining majority by O.P. nos. 2 to 5. 18. Apparently both the insurance company have not filed any appeal arising out of the impugned judgment passed by the learned Tribunal. The claimants have filed appeal and considering the arguments advanced on behalf of the parties, the aforesaid two issues have been framed and consequently the adjudication in the present appeal would be confined to the aforesaid two issues. Issue No. A: 19. It is not in dispute that the deceased was aged 35 years on the date of accident. With regard to the income of the deceased, there are three evidences on records of that of CW-1, CW-2 (wife) and CW-3. 20. So far as CW-1 is concerned, in his cross examination has stated in paragraph 16 that he has no knowledge about the income of the deceased. CW- 1 has also stated that he was the co-passenger with the deceased at the time of the accident. 21. So far as CW-2 is concerned, she is the wife of the deceased. She has stated before the learned Tribunal that her husband was a skilled mason and he used to give Rs. 6,500/- per month to her and from his income only she used to run the entire affairs of the month. She asserted that there was a likelihood that in future the income of her husband would have become twice. During the course of the cross examination of CW-2, she has asserted that her husband was working as mason and she has deposed that no document as such was available with her. She has also asserted that her husband did not have any account in bank or in post office. She has further asserted that she had no idea 7 as to how much her husband used to earn per day and she did not have any document in connection with his income. 22. From perusal of the evidence of CW-2 this Court finds that she has categorically deposed the amount of money which was being given to her by her husband to run the family which consisted of herself, four children, mother and father and husband at the time of the accident. She has also categorically deposed that her husband was working as mason. However, she could not tell the daily income of her husband. 23. So far as CW-3 is concerned, this Court finds that CW-3 has stated in his deposition that the deceased was a mason and CW-3 was a labour under him. He has also asserted that he was living in the neighbourhood of the deceased. This witness has further stated that the deceased used to earn Rs. 300/- per day and he had a good health and his income could become twice in a few years. This witness has been cross examined and has asserted that he is not a relative of the claimants. He has also stated that he was not working with the deceased and he was a labourer. He further asserted in his cross examination that he used to be there with the deceased and the deceased was paid Rs. 300/- per day and this witness was paid Rs. 150/- per day. 24. Upon perusal of the evidences of CW-2 and CW-3, this Court finds that there is consistent evidence on record though oral evidence that the deceased was working as a mason. His wife claimed that an amount of Rs. 6,500/- per month was being given to her by the deceased to run the family. On the other hand, the CW-3 claimed that the deceased was earning Rs. 3,00/- per day although, there is no documentary evidence filed on record by both the witnesses. 25. The learned Tribunal while considering the evidences has held that the claimants have failed to prove that the deceased was a mason and also held that they failed to prove that his monthly income was Rs. 6,500/- per month as claimed. The learned Tribunal after holding that the claimant had failed to prove that the deceased was working as mason has taken the income of the deceased as Rs. 3,000/- per month. 26. This Court finds that the learned Tribunal while considering the evidence of CW-3 has observed that CW-3 has stated that he had worked with the 8 deceased and the deceased was a mason and they worked in the house of one Raju Khan but neither said Raj Khan was not examined nor any document relating to the income of the deceased was filed and on this basis the learned Tribunal recorded that there was no cogent evidence available on record on the point of income of the deceased and thereby went on to record that the claimants failed to prove that the deceased was working as a mason and his income was Rs. 6,500/- per month as claimed. 27. This Court further finds that while considering the evidence of CW-2, the learned Tribunal took into consideration that the wife of the deceased i.e. CW-2 has stated that she did not have any knowledge about the daily income of her husband. However, her assertion in evidence-in-chief that she used to get Rs. 6,500/- from her husband to run the family remained uncontroverted. This Court finds that there was consistent evidence on record that the deceased was working as a mason and the wife used to get Rs. 6,500/- per month from her husband to run family of total strength of seven persons including the deceased. 28. This Court is of the considered view that the learned Tribunal has erred in holding that the claimants have failed to prove that the deceased was a mason and the tribunal has failed to consider that CW-2 has simply stated that she used to get Rs. 6,500/- from the deceased to run her family but she could not state his daily income. 29. This Court also finds that the learned Tribunal has taken monthly income of the deceased as Rs. 3,000/- but no basis has been disclosed as to how the amount of Rs. 3,000/- has been taken to be the monthly income of the deceased. 30. In view of the aforesaid facts and circumstances, this Court is of the considered view that there was consistent evidence on record that the deceased was working as mason and he was earning at least Rs. 6,500/- per month. Consequently, this Court is of the view that the impugned judgment holding that the deceased was not working as mason and that his income was Rs. 3,000/- per month calls for interference. On the basis of materials on record the monthly income of the deceased is taken as Rs. 6,500/- per month. 31. Accordingly Issue A is decided in favour of the claimants. 9 Issue No.-B 32. So far as the quantum of compensation is concerned the same has to be fixed on the basis of monthly income of Rs. 6,500/- per month; age of the deceased was 35 years and total number of dependents on the deceased at the time of the death should be taken as seven. Since the father of the deceased has expired during the pendency of the case, the total dependents would be six. 33. The learned counsel appearing on behalf of the appellant has himself submitted that the deduction on account of personal expenses of the deceased should be taken 1/4th of his income and this aspect has not been disputed by the learned counsel appearing on behalf of the insurance companies. Such submission is in consonance with the judgement passed in the case of Pranay Sethi reported in (2017)16 SCC 680 34. The entitlement of the claimants (just and fair compensation) Comparative Table: Amount awarded and Amount entitled under law:- Sl. No. Head 1. Monthly Income 2. Estimated annual income 3. Future Prospect (40%) 4. After addition of 2 & 3 5. Deduction on account of personal expenses 6. After Deduction 7. Multiplier (age of the deceased was 35 years) 8. Amount applying multiplier the sl. No. 6 in Awarded by Ld. Tribunal Rs. 3,000/- per month Rs. per annum Rs. 14,400/- 36,000/- Entitlement of Claimants under law Rs. 6,500/- per month Rs. 78,000/- per annum Rs. 31,200/- Rs. 50,400/- Rs. 1,09,200/- 1/5th i.e. Rs. 10,080/- 1/4th i.e. Rs. 27,300/- Rs. 40,320/- Rs. 81,900/- 16 16 Rs. 6,45,120/- Rs. 13,10,400/- 10 9. Loss of Rs. 40,000/- Consortium 10. Funeral Expenses Rs. 15,000/- 11. Loss of Estate Rs. 15,000/- 12. Total Rs. 2,40,000/- [40,000/- X 6] [in terms of judgement passed in the case of Pranay Sethi reported in (2017)16 SCC 680 read judgement passed in 2023 SCC Online SC 780 (Rahul Ganpatrao Sable Vs. Laxman Maruti Jadhav (Dead) through Lrs. And others) paragraph 33]- loss of consortium is to be paid separately to each dependent . Rs. 15,000/- Rs. 15,000/- Rs. 7,15,120/- Rs. 15,80,400/- compensation Awarded 13. Interest (8+9+10+11) 7% per annum from the date of filling of claim which ought to have been awarded @ 9% per from annum the date of filing of the claim application till its realization. 7.5% per annum from the date of filling of the claim before tribunal till the date of actual payment. [in the case of Sarup Singh v. HDFC Ergo General Insurance Co. Ltd., (2023) 1 SCC death happened in the year 2012, the tribunal had awarded interest @ 9%, the High court had reduced interest to 6% and the Hon'ble supreme court awarded interest @ 7.5% from filing of claim till realisation.] 35. The just and fair compensation is calculated as above. The issue no B is accordingly decided. 36. This appeal is disposed of in the aforesaid terms. 37. Pending Interlocutory application, if any, is closed. Rakesh/- (Anubha Rawat Choudhary, J.) 11
Arguments
--- : Mr. Arvind Kumar Lall, Advocate : Mr. Shiwam Lath, Advocate For the Opps. Party No.3 : Mr. Alok Lal, Advocate For the Opps. Party No.6 : Mr. Mukesh Kumar Dubey, Advocate --- 1 16/14.08.2024 Heard the learned counsel for the parties. 1. This appeal has been filed by the claimants challenging the judgment/award dated 30.11.2019 passed by the learned District Judge-III – cum- P.O., Motor Accident Claim Tribunal (MACT), Giridih in M.A. Claim Case No. 82 of 2012. Arguments of the appellants 2. The learned counsel for the appellants has submitted that this appeal has been filed for enhancement of compensation. He submits that four points are required to be considered in the present case; they are: - (i) Although there was no documentary proof regarding the monthly income of the deceased, but his wife had categorically stated that the deceased was a mason and he used to give her Rs. 6,500/- per month and the said money was utilized by her to maintain the entire family which included herself, her four children and also the mother and father of the deceased. He has further submitted that the learned court has fixed the income at Rs. 3,000/- per month without any basis which was on a much lower side. He has also submitted that the learned court while fixing the income at Rs. 3,000/- per month had also recorded a finding that the claimants had failed to proof that the deceased was mason and his monthly income was Rs. 6,500/- per month. The learned counsel submits that there was enough evidence on record that the deceased was working as a mason. In view of the aforesaid facts, the learned counsel for the appellants has submitted that the impugned judgment fixing income at Rs. 3,000/- per month calls for interference. He has submitted that monthly income be enhanced to Rs. 6,500/- per month. The learned counsel for the appellants has relied upon a judgment passed