The Branch Manager, The New India Assurance Company Ltd., NCL Premises, 1st v. Devanti Devi

------ For the Appellant : Mr. Debesh Ch. Ghosh, Advocate For the Respondent No.1 : Mr. Md. Asadul Haque, Advocate For the Respondent No.2 : None P R E S E N T HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ 1 M.A.No.214 of 2014 By the Court: - Heard the parties. Learned counsel for the appellant submits that the substituted service of notice upon the respondent No.2 has been made by publishing the contents of the same in the Hindi Daily Newspaper- Navbharat dated

01.03.2022 and The Free Press Journal dated 25.02.2022. Hence, it is submitted that the service of notice upon the respondent No.2 be held sufficient. Considering the aforesaid facts, the service of notice upon the respondent No.2 is sufficient. I.A. No.5847 of 2014 Heard the parties. (Anil Kumar Choudhary, J.)

2. Learned counsel for the appellant submits that this interlocutory application has been filed by the appellant with a prayer to condone the delay of 48 days in filing the instant appeal.

3. Learned counsel for the appellant next submits that after the impugned judgment and award was passed, the matter was discussed by the panel advocates with the authorities and the same consumed considerable period of time resulting in delay of 48 days in filing the instant appeal. It is next submitted that the delay caused was neither deliberate nor intentional and the appellant has very good grounds to agitate in this appeal and unless the delay of 48 days in filing the instant appeal is condoned, the appellant will be highly prejudiced. Hence, it is submitted that the delay of 48 days in filing the instant appeal be condoned.

4. Considering the aforesaid facts, the delay in filing the instant appeal is condoned.

5. This interlocutory application stands allowed. (Anil Kumar Choudhary, J.) M.A. No.214 of 2014 Since both the appellant and the respondent No.1 are present in the 2 M.A.No.214 of 2014 court today and the appeal involves simple point for determination, hence, this appeal is heard and disposed of at the stage of Admission itself.

2. No one turns up on behalf of the respondent No.2 in spite of repeated calls. Hence, this appeal is heard ex-parte against the respondent No.2.

3. This appeal has been preferred against the Judgment and Award dated 22.01.2014 passed by Learned Principal District Judge-Cum-Motor Vehicle Accident Claim Tribunal, Pakur passed in M.A.C.T. Case No.10 of 2012 whereby and where under in an application under Section 166 of the Motor Vehicle Act, 1988 learned tribunal awarded a compensation of Rs.10,80,000/- to the claimant/respondent No.1 to be paid by the appellant with simple interest thereon at the rate of 7% from the date of filing the deficit court fee.

4. The brief facts of this case is that on 05.05.2010 while the deceased was returning to his home, he was crushed by a trailer being rashly and negligently driven by its driver. The deceased was a skilled tailor and his monthly income was Rs.9,000/- and he was the only earning member of his family.

5. In support of its contention, the claimant examined three witnesses. A.W.1- Hiralal Saha is the eye-witness to the occurrence which took place at Mumbai. He has stated that the deceased was earning Rs.300/- per day by doing the tailoring work.

6. A.W.2- Pintu Kumar Pandey was a friend of the deceased. He is the informant of the case. He has stated that the deceased was working at Lokmat Press and was getting Rs.9,000/- per month. Besides this, the deceased was doing the work of tailor at there and he was earning Rs.3,000-4,000/- per month.

7. A.W.3- Devanti Devi is the claimant herself. She has stated that Rs.25,000/- was spent on funeral expenses. She further stated about the dead body of the deceased being brought from Mumbai to Kolkata by air and from Kolkata to Hiranpur by paying Rs.7,000/- and Rs.15,000/- was also spent on Ranjit Saha who accompanied the dead body of the deceased. The deceased was 20 years old and there was no birth certificate 3 M.A.No.214 of 2014 regarding his age.

8. O.P. No.3 of the claim petition is the husband of the claimant and father of the deceased. He has admitted the averments made in the claim petition in paragraphs-1 to 22.

9. The learned tribunal answered the issue No.4 by holding that the driver of the offending vehicle was driving the vehicle rashly and negligently and answered the issue No.5 by holding that the deceased Naresh Kumar died due to rash and negligent driving of the driver of the offending vehicle.

10. The learned tribunal decided the multiplier on the basis of the age of the claimant who has stated that the deceased was of 20-22 years at the time of his death. In the claim petition it was stated that the deceased was earning Rs.9,000/- per month by working in Lokmat Press at Mumbai.

11. The learned tribunal considered that there is no contrary evidence regarding the income of the deceased and only the consistent evidence that has come through the witnesses is that the deceased was earning Rs.9,000/- per month. Hence, the tribunal assessed the monthly income of the deceased to be Rs.9,000/- per month and deducted one-third annual income of the deceased towards his personal expenses and arrived at the compensation of Rs.10,80,000/- by using multiplier of 15.

12. Mr. Debesh Ch. Ghosh- learned counsel for the appellant submits that though the appellant has agitated several grounds but the appellant abandons the rest of the grounds and the only ground to which the appellant is confining his arguments is that the learned court below has committed legal infirmity in believing the income of the deceased to be Rs.9,000/- per month. Mr. Debesh Ch. Ghosh relied upon the judgment of a Division Bench of this Court passed in the case of Most. Sudamiya & Ors. Vs. The New India Assurance Co. Ltd. reported in 2010 (1) JCR 472 (Jhr) paragraphs 4, 5 and 6 of which read as under:- ‘4. Prima facie, we are of the view that the order of the Tribunal and the finding recorded therein are absolutely erroneous in law. As noticed above evidence was led by the claimants that driver was getting Rs.5,000/- as monthly salary. In absence of any contrary evidence the Tribunal has grossly erred in law in taking the help of Minimum Wages Act. One cannot disbelieve the salary of the deceased alleged by the claimants who was a driver in a truck. However, no 4 M.A.No.214 of 2014 documentary evidence was led by the appellants-claimants in support of earning of the deceased.

5. Learned counsel appearing for the claimants-appellants submitted that in absence of any documentary evidence the monthly earning of the deceased cannot and shall not be less than Rs.3,000/- per month and the Tribunal ought to have taken his amount for the purpose of calculating the compensation.

6. We find force in the submission of the learned counsel for the appellants.” and submitted that in the absence of any documentary evidence the monthly earning of the deceased should have been assessed to Rs.3,000/-. Hence, it is submitted that the impugned judgment and award be modified by reducing the amount of compensation directed to be paid to the claimant by the respondent Insurance Company.

13. Learned counsel for the respondent No.1 vehemently opposes the prayer of reducing the amount of compensation and submits that the learned tribunal failed to consider the fact that as the age of the deceased was 20-22 years, hence, the multiplier should have been calculated on the basis of the age of the deceased and the multiplier of 16 should have been applied by the tribunal in stead of multiplier of 15. Learned counsel for the respondent No.1 relies upon the judgment of the Hon’ble Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi & Others reported in (2017) 16 SCC 680, paragraph-59 of which reads as under:- “59. In view of the aforesaid analysis, we proceed to record our conclusions: Bench

59.1. The in Santosh two-Judge Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

59.2. As Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] has not taken note of the decision in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] , which was delivered at earlier point of time, the decision 5 M.A.No.214 of 2014 in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] is not a binding precedent.

59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which we have reproduced hereinbefore.

59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] read with para 42 of that judgment.

59.7. The age of the deceased should be the basis for applying the multiplier.

59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. and submits that 40% of the income of the deceased should have been added towards his future prospects and Rs.70,000/- should have been awarded by the tribunal under the conventional head. It is next submitted that the stable financial condition of the deceased can also be gathered from the fact that his dead body was brought from Mumbai to Kolkata by air and from Kolkata to Hiranpur by road. So, the facts of this care are entirely different from the facts of the case of Most. Sudamiya & Ors. Vs. The New India Assurance Co. Ltd. (supra). It is next submitted that the learned tribunal has assessed the quantum of compensation on 6 M.A.No.214 of 2014 the lower side, hence, there is no scope for interference with the quantum of compensation awarded more so at the behest of the Insurance Company in the absence of any specific permission from the trial court in this respect.

14. Having heard the submissions made at the Bar and after going through the materials in the record, the only point for determination that cropped up in this appeal is that:- “Whether the quantum of compensation is on the higher side?”

15. It is pertinent to mention here that there is undisputed documentary evidence in the record to the fact that the dead body of the deceased was brought from Mumbai to Kolkata by air and from Kolkata to his village by road. This fact throws a light about the stable financial condition of the deceased which was dependent upon his monthly earning. The undisputed fact is that the deceased was working as a tailor in Mumbai and also used to work in Lokmat Press. It is evident that the tribunal has not added any amount towards the future prospect of the deceased. The tribunal ought to have applied the multiplier on the basis of the age of the deceased instead of the claimant in view of the settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Sube Singh and Anr. vs. Shyam Singh (Dead) and Others reported in 2018 (3) SCC 18, para 4 of which reads as under: “4. On the basis of the finding recorded by the Tribunal and affirmed by the High Court, it is evident that the deceased was 23 years of age on the date of accident i.e. 22-9-2009. He was unmarried and his parents who filed the petition for compensation were in the age group of 40 to 45 years. The High Court, relying on the decision in Ashvinbhai Jayantilal Modi [Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma, (2015) 2 SCC 180 : (2015) 1 SCC (Civ) 792 : (2015) 1 SCC (Cri) 855] held that multiplier 14 will be applicable in the present case, keeping in mind the age of the parents of the deceased. The legal position, however, is no more res integra. In Munna Lal Jain [Munna Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347 : (2015) 3 SCC (Civ) 315 : (2015) 4 SCC (Cri) 195] decided by a three-Judge Bench of this Court, it is held that multiplier should depend on the age of the deceased and not on the age of the dependants. We may usefully refer to the exposition in paras 11 and 12 of the reported decision, which read thus: (Munna Lal Jain case [Munna Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347 : (2015) 3 SCC (Civ) 315 : (2015) 4 SCC (Cri) 195] , SCC pp. 351-52) “11. The remaining question is only on multiplier. The High Court [Munna Lal Jain v. Vipin Kumar Sharma, 2012 SCC OnLine Del 4540] following Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for some time; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] . It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote: (Reshma Kumari 7 M.A.No.214 of 2014 case [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] , SCC p. 88, para 36) ‘36. In Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] .’

12. In Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] at para 19 a two-Judge Bench dealt with this aspect in Step 2. To quote: (SCC p. 133) ‘19. … Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.’” (Emphasis supplied) tribunal ought to have awarded Rs.70,000/-under conventional heads though no amount has been given under the conventional head. Under such circumstances even assuming that the tribunal has assessed the income of the deceased a bit on the higher side still when it comes to the just compensation as the tribunal has not considered the other aspects so the net amount of compensation ordered to be paid to the claimant- mother of the deceased can by no stretch of imagination can be said to be on the higher side. Hence, the same shall not warrant any interference of this Court.

16. The sole point for determination is answered accordingly.

17. In view of the discussions made above, this Court does not find any merit in this appeal. Accordingly, this appeal is dismissed on contest against the respondent No.1 and ex-parte against the respondent No.2 but in the circumstances without any cost.

18. Let a copy of this judgment be sent back to the learned tribunal forthwith. High Court of Jharkhand, Ranchi Dated the 13th of July, 2022 AFR/ Animesh (Anil Kumar Choudhary, J.) 8