…..... The New India Assurance Company Ltd. … v. Beronika Tirkey & Others
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction) M.A. No. 101 of 2018 …..... The New India Assurance Company Ltd. …. ..... Appellant Versus Beronika Tirkey & Others …. ..... Respondents WITH M.A. No. 442 of 2018 …..... Beronika Tirkey & Others …. ..... Appellants Versus Sushila Devi & Others …. ..... Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellant For the Resp. Nos. 1 to 3 : Mr. Nikhil Ranjan, Advocate. …......... : Mr. Ganesh Chandra Jha, Advocate. For the Appellants For the Respondent No. 3 : Mr. Ganesh Chandra Jha, Advocate. [M.A. No. 101 of 2018] : Mr. Nikhil Ranjan, Advocate. [M.A. No. 442 of 2018] The matters are being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that the audio and video qualities are good. 12/12.04.2023. ........ Heard, learned counsel for the appellant-The New India Assurance Company Limited, Mr. Ganesh Chandra Jha, who has preferred M.A. No. 101/2018 against the award dated 08.09.2017 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No. 287/2012, whereby the claimants namely, (1) Beronika Tirkey, W/o Late Sidheshwar Gope, (2) Jai Prakash Gope, Son of Late Sidheshwar Gope and (3) Ravi Gope, Son of Late Sidheshwar Gope, all resident of Village – Piska Railway Station, P.O. & P.S. - Nagri, District – Ranchi, have been awarded compensation to the tune of Rs. 28,23,930/- to be paid within 30 days from the date of the award along with interest @9% per annum from the date of admission of claim application under Section 166 of the Motor Vehicles Act i.e. 05.01.2013 till realization of the awarded amount. Learned counsel for the appellant has submitted that another appeal has been preferred by the claimants vide M.A. No. 442/2018, 2 which is being represented by learned counsel for respondents of present appeal, Mr. Nikhil Ranjan. Learned counsel for the appellant has further submitted that owner of the offending vehicle namely, Sushila Devi, Wife of Ghanshyam Mahato, resident of Lohra Toli, Katamukhi,Pithoria, P.O. and P.S. - Pithoria, District – Ranchi has been represented in both the appeals by learned counsel, Mr. Dilip Kumar Jaiswal, though he is not present today. Learned counsel for the appellant has further submitted that this Court has recorded the grounds taken by the Insurance Company vide order dated 06.07.2021, which may profitably be quoted hereunder: “Mr. Ganesh C. Jha, learned counsel for the appellant- Insurance Company (in M.A. No.101 of 2018) has assailed the impugned Award on the ground that tax component of the salary of the deceased, namely, Sidheswar Gope has not been deducted by the learned Tribunal whose earning has been considered by the learned Tribunal to the tune of Rs.22,244/- per month including basic pay, grade pay, HRA, D.A. and transport allowance, out of these, transport allowance of Rs.1320/- was provided to the deceased for his personal expenses for travelling for official purposes and it is not part of his income after its deduction, the learned Tribunal has considered income of the deceased as Rs.20,924/- per month and annual income as (Rs.20,924/- X 12) Rs.2,51,088/- which was a taxable income at the time of accident i.e. on 06.07.2012, as up to Rs.2 Lacs there was tax exemption, but Rs.51,088/- was a taxable income @10%, as such, Rs,5108.80 was not deducted by the learned Tribunal. Mr. Ganesh C. Jha, learned counsel for the Insurance Company has assailed the impugned award on another ground that interest has been awarded @9% per annum from the date of admission of claim application, which ought to have been @7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons vs. UP State Road Transport Corporation, reported in 2008(4) JCR 79 SC. Mr. Ganesh C. Jha, learned counsel for the Insurance Company has further submitted that right of recovery has not been mentioned /referred in the operative part of the impugned 3 Award under the heading of “Order”, which ought to have been made.” Learned counsel for the appellant has further submitted that though the learned Tribunal has considered at Page-12 of the impugned order that “Further, O.P. No. 3 (New India Assurance Company Limited) has to right to recovery for the said amount against O.P. No. 1 namely, Sushila Devi, owner of the offending vehicle at the material time of the accident, but the same has not been incorporated in the impugned award passed by the learned Tribunal, as such, the same may be recorded in the impugned award or may be made part of the impugned award, as no counter affidavit has been filed by the Owner of the Vehicle, who is represented by learned counsel, Mr. Dilip Kumar Jaiswal. Learned counsel, Mr. Nikhil Ranjan, appearing for the appellants / claimants in M.A. No. 442/2018 has submitted that under the conventional head, less amount has been paid to the tune of Rs.45,000/- i.e. Rs.25,000/- for funeral expenses, Rs.10,000/- for loss of estate and Rs.10,000/- for loss of consortium, which ought to have been Rs. 70,000/- i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (paragraph-59.8), as there is enhancement appeal preferred by the claimants vide M.A. No. 442/2018. Learned counsel, Mr. Nikhil Ranjan, appearing for the appellants / claimants in M.A. No. 442/2018 has further submitted that interest has been awarded @9% from the date of admission of the claim application i.e. 05.01.2013, as such, interest may not be interfered by this Court, as claim application was filed in the year 2012 itself. Learned counsel for the Insurance Company, Mr. Ganesh Chandra Jha has opposed the same and has submitted that the claim application remains defective and has not been taken because of laches on the part of the claimants, as such interest @9% may not be 4 granted, as the same is quantified @ 7.5% per annum by the Hon'ble Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (12) SCC 208 after considering variation in the rate of interest and this Court has followed the same consistently. Considering the rival submissions of the parties, looking into facts and circumstances of the case as well as perused the impugned award and documents brought on record, it appears to this Court that there is a typographical mistake in the operative part of the impugned award by the learned Tribunal, whereby the right of recovery, which has been granted in favour of the Insurance Company against the owner of the Offending Vehicle has not been incorporated, which is hereby allowed and order to incorporate the same, as no contrary evidence has been brought on record by the Owner of the Offending Vehicle even before this Court. It appears that the first contesting issue is that what is the income of the deceased. Learned counsel for the claimants has submitted that transport allowance of Rs. 1,320/- cannot be deducted while calculating annual income of the deceased, as after the death of the deceased that will be loss in the income of the deceased. This Court is conscious of the legal proposition as considered by the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Others Vrs. Delhi Transport Corporation & Another reported in (2009) 6 SCC 121. (Para-30), the deduction for personal and living expenses though that depends upon the number of dependents, who was left behind by the deceased, but in the present case, the transport allowance is finished on the death of person / employee and thus it can also be considered for deduction under the heading for personal and living expenses of the deceased and thus, the submission made by the learned counsel for the claimants, Mr. Nikhil Ranjan is negated and the submission made by the learned counsel for the Insurance Company, Mr. Ganesh Chandra Jha is appreciated. Accordingly, this Court is of the opinion that from the monthly income of the deceased which was Rs. 22,244/-, the deduction shall 5 be made of Rs. 1,320/-, which will come to Rs. 20,924/- per month. Thus, annual income of the deceased shall be Rs. 20,924/- x 12 = Rs. 2,51,088/-. Since the amount of Rs. 2,00,000/- was exempted from the tax slab at the relevant time, as such, the amount of Rs. 51,088/- was taxable @ 10%, which ought to have been Rs. 5,108.80. Thus, the annual income of the deceased comes to Rs. 2,51,088/- (-) Rs. 5,108.80 = Rs. 2,45,979.20, which is rounded of as Rs. 2,46,000/- considering the benevolent legislation. Accordingly, this Court is computing the compensation afresh:- Annual Income Rs. 2,46,000/- 30% future prospect as deceased was aged about 49 Years Pranay Sethi (Para-59.4) 1/3rd deduction towards personal and living expenses Sarla Verma (Para-30) Total Income Multiplier of 13 (as the deceased was in the age group of 46-50 years) Sarla Verma (Para-42) Conventional Head Pranay Sethi (Para-59.8) Total Compensation Amount Rs. 2,46,000/- + Rs. 73,800/- = Rs. 3,19,800/- Rs. 3,19,800/- x 1/3 = Rs. 1,06,600/- Rs. 3,19,800/- - Rs. 1,06,600/- = Rs. 2,13,200/- Rs. 2,13,200/- x 13 = Rs. 27,71,600/- Rs. 70,000/- i.e. Rs. 15,000/- as loss of estate, Rs. 40,000/- as loss of consortium and Rs. 15,000/- as funeral expenses. Rs. 27,71,600/- + Rs. 70,000/- = Rs. 28,41,600/- The Insurance Company is directed to indemnify the enhanced amount along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 08.10.2012 till realization of the same. However, the amount which has already been paid under Section 140 of the Motor Vehicles Act to the tune of Rs.50,000/- and the amount of Rs. 18,00,000/- paid by the Insurance Company pursuant to the order dated 18.09.2018 passed by the Coordinate Bench of this Court shall be deducted by the Insurance Company and the balance amount shall be indemnified by the Insurance Company or by the learned Tribunal or by the Executing Court in the bank account of the claimants within a period of 60 days. Learned counsel for the claimants is directed to furnish the bank account of all the three claimants to the learned counsel for the 6 Insurance Company or to the learned Tribunal or to the learned Executing Court within a period of two weeks.
Decision
Accordingly, both the Miscellaneous Appeals are disposed of as both are partly allowed. The statutory amount, which has been deposited by the appellant-Insurance Company at the time of preferring the appeal shall be remitted to the learned Tribunal / learned Executing Court by learned Registrar General of this Court within four weeks from today. Let the L.C.R. be sent down. Sunil/- (Kailash Prasad Deo, J.)