Allowed

Kudni Orain v. The Branch Manager Reliance General Insurance Company Ltd. And Anr.

Jharkhand HC22 Nov 2019MA/329/2017

Case brief

AI extract

What is this about?

High Court enhanced motor accident compensation award allowing 40% for future prospects, reducing personal expense deduction to one-third where dependents existed, upholding 30% contributory negligence, and correcting interest rate to 7.5% per Mannat Johal judgment.

What did the court decide?

Enhanced compensation award calculated at Rs.6,34,430 with 7.5% interest directed to be paid by Insurance Company after deducting amounts already paid.

Kudni Orain Vs The Branch Manager Reliance General… — Motor Accident Claims | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Civil Miscellaneous Appellate Jurisdiction)

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…...

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M.A. No. 328 of 2017

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Gava Orain, W/o Late Chamu Oraon

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Kusma Kumari, D/o Late Chamu Oraon (minor)

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Raju Oraon, S/o Late Chamu Oraon

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All R/o Village- Gargaon, P.O. Gargaon, P.S. Itki, Distt. Ranchi (appellant no.2 is the daughter of appellant no.1 and is being respondent by her)

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…… Appellants

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Versus

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The Branch Manager, Reliance General Insurance Company Ltd. JD Corporate Office No.3, 1^st Floor, Opposite Mahabir Tower, Main Road, Ranchi P.O. G.P.O., P.S. Kothwali, District- Ranchi

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Sukha Singh, S/o Narendra Singh, R/o Near Gurudwara, Wai Kelapur Yavatmal, Tatibandh, Raipur (C.G.) P.O. & P.S. Tatibandh Distt- Raipur, Chhattisgarh (Owner of Truck No.- CG-04E-6174) ……Respondents

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With

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M.A. No. 329 of 2017

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Kudni Orain, W/o Late Bande Oraon …… Appellant

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Versus

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The Branch Manager, Reliance General Insurance Company Ltd. JD Corporate Office No.3, 1^st Floor, Opposite Mahabir Tower, Main Road, Ranchi P.O. G.P.O., P.S. Kothwali, District- Ranchi

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Sukha Singh, S/o Narendra Singh, R/o Near Gurudwara, Wai Kelapur Yavatmal, Tatibandh, Raipur (C.G.) P.O. & P.S. Tatibandh Distt- Raipur, Chhattisgarh (Owner of Truck No.- CG-04E-6174) ……Respondents

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….. CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Appellants : Mr. Nikhil Ranjan, Advocate For the Respondents : Mr. Amit Kumar Das, Advocate Mrs. Swati Salini, Advocate

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11/Dated: 22/11/2019

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1. Both Miscellaneous Appeals have been preferred by respective claimants against the common award dated 19.01.2017 in Motor Accident Claim Case No.04 of 2010 and Compensation case No.05 of 2010 respectively passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi, as such, are being heard together and disposed of by this common judgment.

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2. Admitted facts of the case between the parties are that on 07.10.2009 at 05:45 P.M., Binod Oraon and Anil Oraon both deceased along with their associate namely Budhu Oraon were going to village- Chachgura from their house at Village- Gargaon, P.S.- Itki, District- Ranchi on a motorcycle, while they reached Village- Gargaon on N.H. 23 Ranchi-Gumla Road, met an accident with truck bearing Registration No.CG-04E-6174, coming from opposite direction. Anil Oraon died on spot. The two injured namely, Binod Oraon and Budhu Oraon were shifted at RIMS, Ranchi subsequently during

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treatment Binod Oraon also died. Budhu Oraon has sustained some injuries but this Court is not aware about his claim application. The postmortem report of both the deceased Binod Oraon and Anil Oraon have been brought on record vide P.M. Report nos.1774 of 2009 and 1775 of 2009 dated 08.10.2009. Police has lodged a case vide Itki P.S. Case No.29/09 dated 07.10.2009 against driver of the truck bearing registration No. CG-04E-6174 for the offence under Sections 279, 337, 338 and 304A of IPC. After investigation the police submitted charge-sheet against driver Najar Singh vide charge-sheet No.33/09 dated 31.10.2009, under Sections 279, 337, 338 and 304A IPC. Both the deceased- Binod Oraon and Anil Oraon were unmarried and in the age group of 19 years at the time of their death.

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3. Two separate claim applications have been filed before the learned Tribunal; One by dependents of Binod Oraon namely, Gava Orain, W/o Late Chamu Oraon being a widow- mother, Kusma Kumari, D/o Late Chamu Oraon being a minor sister and Raju Oraon, S/o Late Chamu Oraon being a brother of the deceased- Binod Oraon as Motor Accident Claim Case No.04/2010. Whereas the compensation case No.05 of 2010 has been preferred by Kudni Orain, W/o Late Bande Oraon widow mother of the deceased- Anil Oraon and Dhurup Oraon, S/o Late Bande Oraon- brother of the deceasedAnil Oraon.

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4. In both claim applications, the claimants have submitted that earning of the deceased were Rs.4,000/- per month, working as labourer but due to sudden death, they have been deprived of such income and also love and affection apart from the monetory support given by the deceased.

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5. From perusal of the record, it is admitted that offending vehicle Truck bearing registration No. CG-04E-6174 was insured before the respondentReliance General Insurance Company Ltd., Ranchi Branch vide policy No.2405792334001730 valid for the period from 17.05.2009 to 16.05.2010 and other condition of Section 149(2) M.V. Act was complied by the driver and owner of the vehicle.

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6. Undisputed fact is that, vehicle was duly insured before the Reliance General Insurance Company Ltd., as such, Reliance General Insurance Company Ltd., has already indemnified the compensation amount awarded by the learned Tribunal with interest @ 9% per annum from the date of filing of the application. Claimants of both applications have preferred two separate Miscellaneous Appeals for enhancement of the award, vide M.A. No.328 of

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2017 by the dependents of deceased- Binod Oraon and M.A. No.329 of 2017 by the dependents of deceased- Anil Oraon.

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7. Learned counsel, Mr. Nikhil Ranjan appearing for the appellants/claimants in both Miscellaneous Appeals has assailed the impugned award on four grounds:-

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(i) Future prospect of the deceased has not been considered by the learned Tribunal,

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(ii) The contributory negligence has been wrongly considered by the learned Tribunal by deducting the compensation amount by 30% though no evidence of contributory negligence has been brought on record nor any copy of the FIR instituted upon the surviving injured- Budhu Oraon nor the seizure list of motorcycle has been brought on record, as such, deduction is bad in law and thus findings recorded by the learned Tribunal is contrary to the materials brought on record.

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(iii) Deduction towards the personal and living expenses has been made as 50% of the income, in view of the judgment of the Apex Court in Sarla Verma (SMT) and Others vs. Delhi Transport Corporation and Another reported in (2009) 16 SCC 121 . Learned counsel for the appellants has submitted in this regard that the subsequent judgment of the Hon'ble Apex Court in Magma General Insurance Co. Ltd. vs. Nanu Ram, reported in 2018 SCC OnLine SC 1546 the Hon'ble Apex Court has held that personal expenditure of an unmarried person will depend upon size of the family and the said judgment has also taken note of the judgment of Sarla Verma (SMT) and Others (Supra) in its sub-para 8.2 of para 10 which is profitably quoted hereunder:

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This issue has been dealt with in paragraph 32 of the judgment in Sarla Verma (supra) wherein this Court took the view that where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third, as contribution to the family will be taken as two-third.

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Considering that the deceased was living in a village, where he was residing with his aged father who was about 65 years old, and Respondent No.2 - an unmarried sister, the High Court correctly considered them to be dependents of the deceased, and made a deduction of 1/3rd towards personal expenses of the deceased. The judgment of the High Court is, therefore, affirmed on this count.”

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8. Learned counsel for the appellant has further submitted that no amount of compensation has been given under the heading for loss of consortium which

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is Rs.40,000/- in view of the judgment of National Insurance Company Ltd. vs. Pranay Sethi and Ors., reported in (2017) 16 SCC 680 and Rs.15,000/- as loss of Estate and Rs. 15,000/- as funeral expenses, as such Rs.70,000/- under conventional head has not been computed by the learned Tribunal, as such the order for enhancement may be passed.

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9. Learned counsel for the respondent- Insurance Company, Mr. A.K. Das assisted by Mrs. Swati Salini, has submitted that finding recorded by the learned Tribunal with regard to the contributory negligence is apparent from the record itself. Undisputed fact is that both the deceased along with Budhu Oraon were traveling as triple riders on a motorcycle and they met with an accident. They have themselves violated the traffic rules, as such, finding recorded by the learned Tribunal with regard to the contributory negligence on the part of the deceased requires no interference by this Court. Learned counsel for the respondent- Insurance Company has submitted that paragraph 8 at page 8 and 9 of the impugned award reads as follows:

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8. Issue No.3 & 4 – Both these issues are inter-se related regarding negligence of the offending vehicle truck and contributory negligence of the deceased persons, therefore, taken altogether for the sake of convenience. On the pon of both these issue A.W.-3, Sone Lakra stated during his examination-in-cheif that he has seen the occurrence himself, the accident took place on 07.10.09 at about 6.45 P.M. When he was waiting for vehicle to to to Bero standing at the Chowk near hotel and saw that deceased persons riding on the motorcycle were going towards Gargaon, Itaki, offending vehicle truck reggistration No.CG-04E-674 driving rashly and negligently towrds Ranchi from Gumla dside case in wrong side of the road and sashed the motorcycle resulting the persons riding over the motorcycle suffered injuries upon heir person. He run and reached the place of occurrence and identified both the deceased persons as Binod Oraon and Anil Oraon, resident of village- Gargaon who became suffered grievous injuries, people nearby also collected. Anil Oraon died on spot and two other injured persons brought ot the hospital, RIMs, Ranchi where Binod Oraon died during treatment. Driver of the truck fled away leaving the vehicle on spot. Death of both the deceased persons resulted to the alleged accident due to driving the truck registration No. CG-04E—6174 rashly and negligently. This witness has proved that death of both the deceased persons resulted to the alleged vehicular accident due to the driving the offending vehicle truck rashly and negligently.

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Further, during cross examination he stated at para-6 that the accident occurred as head on collision between the two vehicle motorcycle and truck, three persons namely Binod Oraon, Anil Oraona and Budhu Oraon were riding on the said motorcycle and they were aged about 17-18 years. Thus, he has proved also that it is case of head on collision of two vehicles and deceased persons were traveling by the said motorcycle as triple rider which comes in purview of contributory negligence in causing accident.

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Considering the documents Ext. 1,2,3 & 3/1 and also oral evidence as discussed above, I find and hold that death of both deceased persons namely Binod Oraon and Anil Oraon resulted to the alleged vehicular accident driving the offending vehicle truck registration No. CG-04E-6174 rashly and negligently, further, contributory negligence of both deceased persons also have been

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proved, accordingly issue no.3 is hereby decided in favour of the applicants and against O.Ps. but issue no.4 is hereby decided in favour of O.Ps. and against applicants.” (underlined emphasized)

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It shows that it is a case of head-on collision of two vehicles and the deceased persons were traveling on the motorcycle as triple riders, which shows contributory negligence on the part of the deceased.

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10. Learned counsel for the respondent- Insurance Company has further submitted that in the judgment of Sarla Verma (SMT) and Others (Supra) , wherein the Apex Court has held that in a case of bachelor, the personal and living expenses of the deceased ought to have been deducted @ 50% and further in the recent judgment in National Insurance Company Ltd. vs. Mannat Johal and Others, reported in 2019 SCC OnLine SC 578 in Civil Appeal No.4079-4081 of 2019. Reliance has been placed upon paragraph 19 of the judgment National Insurance Company Ltd. (Supra) which has taken note of paras 30 to 32 and para 42 of the Sarla Verma Case.

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19. For completion of the principles above-quoted, appropriate would it to be to take note of paragraphs 30 to 32 as also paragraph 42 in Sarla Verma (supra) which read as under:—

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“30 . Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3^rd ) where the number of dependent family members is 2 to 3, one-fourth (1/4^th ) where the number of dependent family members is 4 to 6, and one-fifth (1/5^th ) where the number of dependent family members exceeds six.

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31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

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32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.

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42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335], Trilok Chandra [(1996) 4 SCC 362] and Charlie [(2005) 10 SCC 720 : 2005

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SCC (Cri) 1657] ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M- 11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”

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11. Learned counsel for the respondent- Insurance Company has fairly submitted that under the conventional head the amount has not been rightly paid to the claimants which may be corrected but the counsel for the respondent- Insurance Company has raised an objection, that the awarded amount has been satisfied by the Insurance Company considering the quantum of the compensation, though has been saddled with 9% interest which ought have been 7.5% interest in view of the judgment of Dharmpal and Sons Vs. UP State Road Transport Corporation, 2008 (4) JCR 79 SC and the same view has been affirmed by the Apex Court in the recent judgment of National Insurance Company Ltd. vs. Mannat Johal and Others (Supra) where the rate of interest has been considered to be 7.5%.

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12. Heard, learned counsel for the appellants and learned counsel for the respondent- Insurance Company and perused the materials brought on record. The Future Prospect has not been taken note by the learned Tribunal in view of several judgments passed by Hon'ble Apex Court including the recent judgment in the case of Sarla Verma (supra), Pranay Sethi (supra) and Mannat Johal and Ors. (supra), as such, the appellants are entitled for 40% enhancement as Future Prospect. Both the deceased were in the age-group of 19 years, as such, this Court is enhancing the amount by adding 40% as Future Prospect.

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The only dispute between the parties are with regard to the followings:

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(i) deduction of personal and living expenses of a bachelor; (ii) The deduction on account of contributory negligence to the tune of 30% and

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(iii) the compensation awarded with 9% interest instead of 7.5 % from the date of filing of the application.

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From perusal of the same, it appears that 50% deduction as Personal and Living expenses of a Bachelor has been considered by the Hon'ble Apex Court in the case of Sarla Verma (Smt.) (supra) which has been subsequently taken note of by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Mannat Johal and Ors. (supra) .

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So far the first dispute i.e. Deduction of personal and living expenses of the

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deceased being Bachelor of 19 years is concerned, the learned Tribunal, as per the judgment rendered in the case of Sarla Verma (Smt.) (supra) , deducted 50%, but in view of the subsequent judgment in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram , reported in 2018 SCC OnLine Sc 1546 , the Hon'ble Apex Court has considered this aspect of the matter of sub-para 8.2 of para 10 which is profitably quoted hereunder:-

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“8.2 With respect to the issue of deduction from the income of the deceased, the Insurance Company contended that the deduction ought to have been ½, and not 1/3rd, since the deceased was a bachelor. This issue has been dealt with in paragraph 32 of the judgment in Sarla Verma (supra) wherein this Court took the view that where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third, as contribution to the family will be taken as twothird.

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13. Learned counsel for the respondent- Insurance Company has submitted that in the first claim application i.e. Motor Accident Claim Case No.04/2010 subsequent M.A. No.328 of 2017 there are three claimants, the mother, minor sister and a brother whereas in the second claim application i.e. Compensation Case No.5/2010 subsequent M.A. No.329 of 2017 there are two claimantswidow mother and a brother, as such, the amount have been deducted to the tune of 50% as a personal expenses.

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This Court has taken note of the submission of the learned counsel for the appellants as well as respondents and also gone through the judgments by the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. (supra) wherein the Hon'ble Apex Court has considered this aspect of the matter and the same has been considered 1/3^rd as deduction towards personal expenses. The Apex Court in the judgment of Magma General Insurance Co. Ltd. (supra) delivered on 18^th September, 2018, has considered the same point. The Apex Court in the case of National Insurance Company Ltd. Vs. Mannat Johal and Ors. (supra) which was decided on 23^rd April, 2019, but in para-19 where the case of Sarla Verma has been quoted. The Hon'ble Apex Court has taken note of the fact that where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his

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personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.

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Under the aforesaid circumstances, the personal and living expense of the deceased has wrongly been considered as 50%, which ought to have been 1/3^rd as the case of Sarla Verma (supra) also speaks of deduction of 1/3^rd for the family size of 2 to 3. So in the present case also there are three dependents in the first claim case whereas in the second claim case, there are two dependents, as such, co-joint reading of judgment of Sarla Verma (supra), Pranay Sethi (supra) and Mannat Johal and Ors. and Magma General Insurance Co. Ltd. the same is 1/3^rd .

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14. So far the contributory negligence is concerned, since the deceased have themselves violated the Traffic Rules and it is admitted case of the parties that they were triple riders on a Motorcycle, though no FIR has been instituted against the deceased or the surviving injured, Budhu Oraon by the Police, but the contributory negligence on the part of the deceased cannot be ignored in the instant case. In the case of Sunita and Ors. Vs. Rajasthan State Road Transport Corporation and Anr., reported in 2 019 SCC OnLine SC 195 wherein the Hon'ble Apex Court has relied upon the decision in the case of Mangla Ram Vs. Oriental Insurance Company Limited , reported in (2018) 5 SCC 656 at para-21 as well as in the case of N.K.V. Bros. (P) Ltd. vs. M. Karumal Anmal, reported in (1980) 3 SCC 457 , wherein it has been held that the court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it. Thanks to judicial laxity, that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. In the case of United India Insurance Co. Ltd. v. Shila Datta, reported in (2011) 10 SCC 509 at paras 8 and 10 which are profitably quoted hereunder:-

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“8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petitioner under the Motor Vehicles Act, 1988 a threeJudge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p.518, para 10).

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'10.(ii)The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.

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(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ….(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.

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9.The following further observations available in para 10 of the Report would require specific note : (Shila Datta case, SCC p.519).

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10. … We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry in accordance with the statute.”

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In para 10 of Dulcina Fernandes, the Court opined that nonexamination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability.”

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15. The learned Tribunal has considered the materials while dealing this issue no.4 at para 8 which reads as follows:-

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“ Thus, he has proved also that it is case of head on collision of

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two vehicles and deceased persons were traveling by the said motorcycle as triple rider which comes in purview of contributory negligence in causing accident.

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Considering the documents Ext. 1,2,3 & 3/1 and also oral

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evidence as discussed above, I find and hold that death of both deceased persons namely Binod Oraon and Anil Oraon resulted to the alleged vehicular accident driving the offending vehicle truck registration No. CG-04E-6174 rashly and negligently, further, contributory negligence of both deceased persons also have been proved, accordingly issue no.3 is hereby decided in favour of the applicants and against O.Ps. but issue no.4 is hereby decided in favour of O.Ps. and against applicants.”

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(underlined emphasized)

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This Court is satisfied that the learned Tribunal has rightly deducted 30% as contributory negligence while awarding the compensation.

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16. So far third dispute regarding the interest is concerned, this Court is aware of the judgment passed by the Apex Court in the case of Dharampal (Supra) as well as in the case of Mannat Johal and Ors. (supra) , the same should be 7.5% from the date of institution of the claim case instead of 9%.

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So far consortium is concerned, there is no dispute between the parties that it has not been paid to the claimants as per judgment Pranay Sethi (Supra) which ought to have been Rs.70,000/- altogether, but it has wrongly been given as Rs.35,000/-. As such there should be enhancement of Rs.35,000/more, loss of consortium as Rs.40,000/-, loss of love and affection as Rs.15,000/- and funeral expenses as Rs.15,000/-, which has wrongly been paid under same heading as Rs.35,000/-, as such, under the same heading, it should be Rs.70,000/- though in total Rs.35,000/- has only be paid by the learned Tribunal.

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A fresh chart of calculation is given hereunder :-

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1. Income	=	Rs.4000/- per month
2. Future Prospect	=	(40%) Rs.1600/-
3. Deduction Towards
Personal expenses	=	1/3 of Rs.5600/-, Rs.1867/- per month
4. Total Income	=	Rs.3,733/- per month

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Multiplier = 18 6. Loss of Future Income = Rs.3733/- x 12 x 18 = Rs.8,06,328/7. 30% Less towards =

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contributory negligence Rs.2,41,898/8. Total Income = Rs.8,06,328 – Rs.2,41,898 = Rs.5,64,430/ =

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Total Compensation Rs.5,64,430 + 70,000 = Rs.6,34,430/- and interest @ 7.5 % per annum from the date of institution of claim cases.

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17. The Reliance General Insurance Company is directed to pay the balance amount i.e. enhanced award after deducting the amount already paid to the claimants in their respective appeals.

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18. Both the aforesaid appeals stand allowed on the aforesaid terms with 7.5% interest from the date of filing of the application.

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sandeep/R.S.-

Kudni Orain v. The Branch Manager Reliance General Insurance Company Ltd. And Anr.

Case brief

What is this about?

What did the court decide?

Kudni Orain v. The Branch Manager Reliance General Insurance Company Ltd. And Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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