Badan Devi v. Satanarayan Singh

P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:-

1. Heard the parties.

2. This appeal is directed against the judgment and award dated

21.09.2007 passed by the 1st Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Seraikella in Compensation Case No.39 of 2003 by which the learned Tribunal in an application under Section 166 of M.V. Act has awarded a sum of Rs.1,72,000/- less the amount of Rs.50,000/- paid as interim compensation and directed the insurance company to pay the remaining Rs.1,22,000/- to the claimants with interest at the rate of 6% per annum from 22.09.2003 till final payment of entire compensation amount, but gave the right to recover the compensation amount paid by the insurance from the owner of the offending vehicle.

3. No one turns up on behalf of the respondent nos.1 and 3 in- 2 M.A. No. 65 of 2008 spite of repeated calls, even after valid service of notice. This appeal is heard ex-parte against the respondent nos. 1 and 3.

4. The brief facts of the case is that the deceased Abhimanyu Munda aged about 35 years being the labourer of the offending truck while unloading Stone chips from the truck, the driver of the truck driving the truck rashly and negligently lost control over the truck and turned the truck turtle in a ditch and caused head injuries to Abhimanyu Singh and the said Abhimanyu Singh succumbed to the injuries at the spot.

5. The learned tribunal on the basis of the rival pleadings altogether framed the following six issues :- (i) Whether the applicants have any cause of action or right to sue and whether the case is maintainable? (ii) Whether the deceased died in an accident which took place on

10.04.2003 due to rash and negligent driving of the vehicle bearing no.BRX-4552? (iii) Whether the owner has violated the terms and conditions of the policy for which the vehicle has been insured under the insurer? (iv) Whether the claimants are entitled to receive the compensation amount and if so, what should be the quantum of compensation? (v) Whether the insurer of the vehicle is liable to indemnify the insured of the vehicle? (vi) Whether the claimants are entitled to get any relief or reliefs as claimed by them?

6. The learned Tribunal first took up the issue no. ii and after considering the evidence in the record that is the oral testimony of both the witnesses of the applicants as well as documentary evidence which 3 M.A. No. 65 of 2008 has been marked Ext.1 to 4 came to the conclusion that the deceased died in a vehicular accident which took place due to rash and negligent driving of the driver of the offending truck. The learned Tribunal assessed the income of the deceased to be Rs.15,000/- per annum on the basis of notional income and applied the multiplier 17 and paid Rs.2000/- towards funeral expenses and awarded the aforesaid amount.

7. Ms. Swati Shalini, learned counsel for the appellants submits that though the appellants have taken several grounds in this appeal but the appellants do not press the other grounds and confine their prayer for enhancement of the compensation on the following grounds :- (i) As the claimants have specially pleaded that the deceased was earning Rs.2,100/- per month and there is no challenge to the testimonies of witnesses examined of the claimants to the fact that the deceased was earning Rs.2,100/- and even the finding of the Tribunal from issue no. ii suggest that the deceased died due to rash and negligent driving of the vehicle in which he was engaged as a labourer hence, the assessment of the income on the basis of notional income by the tribunal is erroneous and the learned Tribunal ought to have held that the monthly income of the deceased is Rs.2,100/-. It is further submitted by Ms. Shalini that in view of the settled principle of law 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, the learned Tribunal erred by not adding 40% of the income of the deceased towards the future prospects and by not awarding Rs.70,000/- under conventional head and by adding the meagre amount of Rs.2,000/-. It is fairly submitted by Ms. Shalini that in view of the principle of law in paragraph no.40 of the case of Sarla Verma (SMT) And Others v. Delhi 4 M.A. No. 65 of 2008 Transport Corporation And Another reported in (2009) 6 SCC 121, the multiplier 16 is to be applied in this case. It is next submitted by Ms. Shalini that the rate of interest awarded by the Tribunal is on the lower side being 6%, the same be enhanced to simple interest at the rate of 7.5% in view of the ratio of the judgment of the Hon’ble Supreme Court of India in the case of Dharampal & Ors. v. U.P. SRTC, reported in (2008) 12 SCC 208, paragraph nos.13 and 14 which reads as under :- “13. However, in the year 2005 in T.N. State Transport Corpn. Ltd. v. S. Rajapriya [(2005) 6 SCC 236 : 2005 SCC (Cri) 1436] this Court again taking note of the then prevailing rate of interest on bank deposits directed for lowering the rate of interest fixed by the Tribunal at 9% per annum and altered the same to 7.5% per annum.

14. In the backdrop of the aforesaid legal position, we may now examine the facts of the present case. The accident in the present case had taken place on 1-9-2004 and the Tribunal had passed the award on 18-5-2005. Rate at which the interest is to be awarded would normally depend upon the bank rate prevailing at the relevant time. Since in T.N. State Transport Corpn. Ltd. [(2005) 6 SCC 236 : 2005 SCC (Cri) 1436] decided in the month of April 2005, the prevailing rate of interest on bank deposits was found and held to be 7.5% per annum, we consider it appropriate to award the same rate of interest, as the same was the prevailing rate of interest on the date of the passing of the award i.e. 18-5-2005 in the present case. Consequently, we hold that the appellants would be entitled to be paid interest at the rate of 7.5% from the date of application till the date of payment..” (Emphasis supplied) Hence, it is submitted that the impugned judgment and award be modified accordingly.

8. Learned counsel for the respondent no.2 on the other hand defended the impugned judgment and award and submits that as the claimants have failed to produce any certificate regarding the income of the deceased neither by the employer of the deceased nor the claimants examined the employer of the deceased. Hence, the learned court below has rightly assessed the income of the deceased to be Rs.15,000/- per 5 M.A. No. 65 of 2008 annum. Hence, it is submitted that there is no justifiable reason to enhance the compensation and this appeal being without any merit be dismissed.

9. Having heard the rival submissions made at the bar and after going through the materials in the record, the sole point for determination cropped up in this appeal for consideration is as under: (i) Whether the amount of compensation awarded by the Tribunal is to be enhanced?

10. After going through the materials in the record, this Court finds that there is no challenge of the oral testimony of both the witnesses examined by the claimants in respect of the fact that the deceased was working as a labourer and was earning Rs.2,100/- per month as stated by them in their examination in chief, in their respective cross-examination, hence the same is accepted to be true. In the absence of any plausible reason not to believe the testimony of the two witnesses examined by the claimants in this case, this Court is of the considered view that the learned Tribunal erred by not accepting the monthly income of the deceased to be Rs.2,100/-. So keeping in view the evidence in the record, this Court assesses the monthly income of the deceased to be Rs.2,100/- and in view of the settled principle of law in the case of National Insurance Company Limited Vs. Pranay Sethi & Others reported in, (2017) 16 SCC 680, paragraph no.59.4 and 59.8 of which reads as under :- “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 6 M.A. No. 65 of 2008 income minus the tax component.

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.” This is a fit case, where the 40% of the income of the deceased is to be added towards future prospects. So this brings the monthly income amount of the deceased to Rs.2940/-. Deducting 1/3rd of the income towards personal expenses of the deceased as the deceased has two dependents, the contribution to his family comes to Rs.1960/- per month that is Rs.23,520/- per annum. It is rightly submitted by the learned counsel for the appellants that keeping in view the age of the deceased is 35 years, the multiplier 16 is to be applied. By multiplying the Rs.23,520/- with 16, the total amount comes to Rs.3,76,320/- and adding 70,000/- under the conventional heads, the total amount comes to Rs.4,46,320/-. The sole point of determination is answered accordingly.

11. It is submitted by the learned counsel for the respondent no.2 that the respondent no.2 has already awarded Rs.1,72,000/- to the claimants. This fact is not disputed by the learned counsel for the appellants.

12. So far as the rate of interest is concerned, in the case of Dharampal & Ors. v. U.P. SRTC, (supra) when the accident took place on 01.09.2004 and the award was passed by the Tribunal on 18.05.2005, it has been observed by the Hon’ble Supreme Court of India in paragraph no.14 that the rate at which the interest is to be awarded would normally depend on the bank rate prevalent at the relevant time. As in the case of Tamilnadu State Transport Corpn. Ltd. vs. S. Rajapriya reported in (2005) 6 SCC 236, the Hon’ble Supreme Court of India taking note of the then prevalent rate of interest on bank deposits directed lowering of the 7 M.A. No. 65 of 2008 interest rate fixed by the Tribunal at the rate of 9% per annum. The Hon’ble Supreme Court of India in Dharampal & Ors. v. U.P. SRTC, (supra) took the judicial note of prevalent rate of interest on bank deposits in the year 2005 and awarded the said interest but coming to the facts of the case, there is absolutely no evidence in the record as to what was the rate of interest on bank deposits in the year 2007 that is on

21.09.2007 when the award of the case was passed. Under such circumstances, this Court is not inclined to accept the prayer to enhance the rate of interest from 6% to 7.5% per annum.

13. Accordingly, the impugned judgment and award is modified by directing the respondent no.2- Insurance Company to pay further sum of Rs.2,74,320/- with interest thereon at the rate of 6% per annum from the date of this judgment to the date of actual payment within three months from the date of judgment.

14. The right to recover the compensation amount after payment of the same to the claimants, as given by the Tribunal to the insurance company is not interfered with by this Court and the same will remain as passed by the learned Tribunal.

16. This appeal is disposed of with the aforesaid modification. The Registrar General of this court, is directed to remit the statutory amount if any, deposited in this appeal to the concerned Tribunal.

17. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith. High Court of Jharkhand, Ranchi Dated the 18th July, 2022 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.)