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Judgment
,
Both the miscellaneous appeals i.e. M.A. No. 360/2013 and M.A. No. 361/2013 are arising out of the same accident in which two set of claimants,
vide Claim Case No. 25/2004 and Claim Case No. 28/2004 came before this Court for enhancement of the Award, as such, both the appeals are",
being heard together. I.A. No. 3930 of 2014 in M.A. No. 360 of 2013 Learned counsel for the appellants has submitted that there is delay of 02 days,
in preferring the appeal and for condonation of the same, I.A. No. 3930 of 2014 has been filed and the reasons has been assigned in the interlocutory",
application.,
Since no counter affidavit has been filed in the limitation petition, even though learned counsel for the Insurance Company has appeared, the delay in",
filing the appeal is hereby condoned.,
I.A. No. 3930 of 2014 is allowed.,
M.A. No. 360 of 2013 M.A. No. 360/2013 has been preferred by the claimants namely, Abdul Karim and Jamila Khatoon for enhancement of the",
Award dated 22.08.2013 passed by learned Additional Claim Tribunal, 3rd, Chatra in Claim Case No. 25/2004, whereby compensation for the death of",
Amna Khatoon, aged about 18 years, has been awarded to the tune of Rs. 1,62,000/- (out of which amount of Rs. 50,000/- has already been paid",
under Section 140 Motor Vehicles Act) against the Oriental Insurance Company Limited within one months from the date of Award, failing which the",
Insurance Company shall have to pay 8% simple interest on the said amount with riding clause to recover the same from the owner of the truck in,
question.,
Learned counsel for the appellants has submitted that daughter of both the claimants died in a motor accident at the age of 18 years by a mini truck,
bearing registration no. JH-02B-3894, which was registered in the name of Naushad Alam, son of Md. Samsuddin, resident of Village - Patha, P.O. -",
Simariya, P.S. - Simariya, District- Chatra.",
Learned counsel for the appellants has submitted that the deceased died at the age of 18 years, leaving left behind her father and mother. She was a",
vegetable seller, but the learned Tribunal has wrongly considered the income of the deceased to be Rs. 3,000/- in absence of any documentary",
evidence brought on record, contrary to the judgment passed by the Apex Court passed in the case of of Chameli Devi & Others Vs. Jivrail Mian &",
Others reported in 2019 (4) TAC 724 (SC), where the Apex Court in absence of any documentary evidence has considered the income of Carpenter",
to be Rs. 5,000/- per month.",
Learned counsel for the appellants has further submitted that the age of the deceased Amna Khatoon was 18 years, as such multiplier of 18 was",
applicable in view of Judgment passed by Apex Court in the case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr. reported in,
(2009) 6 SCC 121 (Para-42), but the learned Tribunal has wrongly used multiplier of 9 considering the age of the claimants.",
Learned counsel for the appellants has further submitted that the future prospect of the deceased, who is vegetable seller has not been considered by",
learned Tribunal, in view of recent judgment passed in the case of Kirti & Anr. Etc. Vs. Oriental Insurance Company Limited in Civil Appeal Nos.",
19-20 of 2021 decided on 05.01.2021, future prospect is applicable and also in view of the judgment passed by the Apex Court in the case of National",
Insurance Company Ltd. Vs. Pranay Sethi and Ors. (paragraph- 59.4) reported in (2017) 16 SCC 680, future prospect at the rate of 40% is applicable",
in the case of deceased Amna Khatoon, who is a self-employed, died below the age of 40 years.",
Learned counsel for the appellants has further submitted that the learned Tribunal has not considered the conventional head in view of the judgment,
passed by the Apex Court in the case of Pranay Sethi and Ors. (Supra) (paragraph-59.8), 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 love and affection.",
Learned counsel for the appellants has further submitted that though simple interest @ 8% has been granted, but not from the date of filing of the",
claim application, rather after one month from the date of the award i.e. 22.08.2013, if compensation amount is not paid by the Insurance Company, as",
such, this Court may allow the interest from the date of filing of the claim application.",
Learned counsel for the Insurance Company has submitted that following the principle of judgment passed by the Apex Court in the case of Oriental,
Insurance Co. Ltd. Vs. Nanjappan & Others reported in (2004)13 SCC 224, the learned Tribunal has given right of recovery in favour of the",
Insurance Company and against the owner of the vehicle as owner of the vehicle even after notice has not appeared before the learned Tribunal and,
as such, the right of recovery which has been given by the learned Tribunal may be kept untouched by this Hon'ble Court.",
Learned counsel for the Insurance Company has further submitted that the victim died at unmarried stage, leaving behind her parents, but under",
deduction towards personal and living expenses, the learned Tribunal has deducted 1/3rd, which ought to have been 50% of the income of the",
deceased, in view of the judgment passed by the Apex Court passed in the case of Sarla Verma (Smt.) (Supra) (Para-30).",
Learned counsel for the Insurance Company has further submitted that initially the claimants have preferred an appeal for the compensation to the,
tune of Rs. 5,00,000/-, but suo moto they have amended the claim and demanded Rs. 2,00,000/-, as such, they cannot be paid more than what they",
have claimed.,
Learned counsel Mr. Amit Kumar, for the Owner of the offending vehicle namely, Nausad Alam, has submitted that right of recovery has been given",
in favour of the Insurance Company, as the owner has not produced any document before the learned Tribunal, as such he has nothing to say on this",
issue, as the deceased was gratuitous passenger on the said truck on the date of occurrence, such Issue No. 5 has been decided against the owner of",
the vehicle, but no appeal has been preferred by the owner of the vehicle against the award, whereby right of recovery has been given in favour of the",
Insurance Company.,
Considering the rival submission of the parties and looking into facts and circumstances of the case, since this Court is not inclined to accept the",
argument of learned counsel for the Insurance Company that claimants cannot prefer an appeal for enhancement of the award, if their claim for",
compensation is low and that cannot be granted, rather this Court considered the judgment of Ranjana Prakash & Others Vs. Divisional Manager &",
Another reported in 2011 (14) SCC 639, where this Court has to look that compensation awarded to the claimants shall be just and fair compensation,",
as such, this Court consider the factual aspects of the matter.",
Amna Khatoon deceased and one Md. Nasim along with other villagers were travelling towards Bagra on the truck bearing registration no. JH-02B-,
3894 to meet their relatives on the occasion of Bakrid festival. The said truck turned turtle near Geruwa Village due to which Md. Nasim and Amna,
Khatoon sustained injury and died. An F.I.R. has been lodged being Chatra Sadar P.S. Case No. 36/2004 corresponding to G.R.No. 112/2004,
registered under Sections 279,337, 338, 304-A I.P.C. After investigation, charge- sheet has been submitted vide No. 46/2004 on 29.02.2004. From the",
factual aspect of the matter, it appears that the deceased Amna Khatoon was aged about 18 years and at the time of accident, she was unmarried and",
left behind her parents, Abdul Karim and Jamila Khatoon and as such, this Court consider the income of the deceased to be Rs. 5,000/- in absence of",
any documentary evidence following the ratio laid down by the Apex Court in the case of Chameli Devi (Supra).,
Income,"Rs. 5,000/- per month
Annual Income,"Rs. 5,000/- x 12 = Rs. 60,000/-
40% future prospect,"Rs. 60,000/- + Rs. 24,000/- = Rs. 84,000/-
50% deduction towards personal and living expenses,"Rs. 84,000/- x 50/100 = Rs. 42,000/-
Total Income,"Rs. 84,000/- - Rs. 42,000/- = Rs. 42,000/-
Multiplier of 18 (as the deceased was in the age group
of 15-20 years)","Rs. 42,000/- x 18 = Rs. 7,56,000/-
Conventional Head,"Rs. 70,000/-
Total Compensation Amount,"Rs. 7,56,000/- + Rs. 70,000/- = Rs. 8,26,000/-
Interest,"RS. 8,26,000/- along with S.I. @ 7.5% from the date
of filing of the claim application till the date of actual
payment in view of judgment of Apex Court passed in
the case of Dharampal and Sons Vs. U.P. State Road
Transport Corporation reported in 2008 (4) JCR 79
(SC).
Income,"Rs. 5,000/- per month
Annual Income,"Rs. 5,000/- x 12 = Rs. 60,000/-
40% future prospect,"Rs. 60,000/- + Rs. 24,000/- = Rs. 84,000/-
1/3rd deduction towards personal and living expenses,"Rs. 84,000/- x 1/3 = Rs. 28,000/-
Total Income,"Rs. 84,000/- - Rs. 28,000/- = Rs. 56,000/-
Multiplier of 18 (as the deceased was in the age group
of 21-25 years)","Rs. 56,000/- x 18 = Rs. 10,08,000/-
Conventional Head,"Rs. 70,000/-
Total Compensation Amount,"Rs. 10,08,000/- + Rs. 70,000/- = Rs. 10,78,000/-
Interest,"RS. 10,78,000/- along with S.I. @ 7.5% from the date
of filing of the claim application till the date of actual
payment in view of the judgment passed by the Apex
Court in the case of Dharampal and Sons Vs. U.P.
State Road Transport Corporation reported in 2008 (4)
JCR 79 (SC).