Partly allowed

Br.Manager, Oriental Insurance v. Dharamlal Deshi Dharmlal Deh

Jharkhand HC21 Jan 2019MA/56/2011

Case brief

AI extract

What is this about?

High Court modified the Motor Accident Claim Tribunal award, enhancing compensation by rejecting one-third personal expense deduction for the unmarried deceased, confirming no deduction for holidays, and applying statutory multipliers from National Insurance Co. Ltd. v. Pranay Sethi.

What did the court decide?

Compensation enhanced to Rs. 7,00,400/- plus interest at 6% p.a.; 50% deduction for personal expenses ordered; future prospects set at 40%.

Br.Manager, Oriental Insurance Vs Dharamlal Deshi Dharmlal Deh — Insurance | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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M. A. No. 56 of 2011

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The Branch Manager, Oriental Insurance Company Limited, Bhagalpur Branch, P.S. + P.O. & District – Bhagalpur, Bihar … … Appellant/Respondent no. 2 Versus

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Dharamlal Deshi alias Dharmlal Dehri, son of Shibu Dehri, resident of village – Amirjola, P.O. + P.S. – Amrapara, District – Pakur;

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… … Respondent/Claimant

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Smt. Sarda Devi wife of Shri Amlindu Jha, resident of village – Lukluki, P.S. + P.O. & District – Godda, Jharkhand … … Respondent/respondent no. 1

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Ms. Rita Kumari, Advocate For the Resp. No. 1 : Mr. Pradeep Kumar Deomani, Advocate : Mr. Ashish Mohan, Advocate For the Resp. No. 2 : None ---

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13 /21.01.2019

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1. Heard Ms. Rita Kumari, counsel appearing on behalf of the appellant.

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2. Heard Mr. Pradeep Kumar Deomani and Mr. Ashish Mohan counsels appearing on behalf of claimant that is respondent no. 1.

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3. Nobody appears on behalf of respondent no. 2 in the instant case (Smt. Sarda Devi).

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4. Counsel for the appellant submits that inspite of valid service of notice upon the owner of the vehicle, namely Smt. Sarda Devi, she has not chosen to appear before this Court.

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5. This appeal has been filed against the award dated 02.11.2010 passed by the Court of District Judge-cum Motor Vehicle Accident Claim Tribunal, Pakur in M.V.A.C. Case No. 53 of 2008, whereby the learned Tribunal has been pleased to direct payment of compensation amount of Rs. 4,49,200/along with interest (beside ad-interim compensation of Rs. 50,000/-) to the claimant on account of

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the death of his son Vinod Dheri in a road accident by the offending vehicle bearing registration no. JH 17B- 1387.

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6. Counsel for the appellant submits as under:

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A. The brief facts of the case is that the deceased aged about 18 years, was working as cleaner in the offending vehicle bearing registration no. JH 17B – 1387.

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B. As there was traffic jam at Amrapara road on 25.06.2008, the deceased was sleeping by the side of the road and when the jam was cleared, the driver of the vehicle rashly and negligently drove the vehicle without taking any notice that the deceased was sleeping by the side of the road. The deceased was run over by the vehicle and he sustained grievous injury. Thereafter, He was taken to primary health centre, Amrapara but he died there. Accordingly, the police registered an F.I.R. as Amrapara Case No. 29 of 2008 under Section 279 and 304-A of the Indian Penal Code and after investigation submitted the charge-sheet under the said Sections.

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C. The only claimant in this case, i.e. the father of the deceased, filed his claim for compensation before the learned court below and upon issuance of notice, the owner of the vehicle namely Sarda Devi appeared and filed her written statement. It was contended that the deceased expired due to his own fault and the driver was having a valid driving license. It was also submitted that the driver of the vehicle was not made a party to the proceeding. The vehicle had a valid road permit and insured with Oriental Insurance Company Limited which was valid from 31.12.2007 to 30.12.2008 covering the date of accident on 25.06.2008. It was contended by the respondent no. 2 (Smt. Sarda

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Devi) that the deceased was being paid Rs. 3,000 per month and as the vehicle was insured, it was for the insurance company to make payment of the compensation.

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D. The Oriental Insurance Company Limited also appeared and filed written statement and contended that the claimant was not the eye-witness to the alleged occurrence and there was no proof to show that the death of the deceased has resulted pursuant to accident arising out of use of vehicle bearing registration no. JH 17B- 1387. A plea was also taken that the deceased was sleeping by the side of the road at night, so, deceased was himself guilty of contributory negligence. The insurance company totally denied its liability to pay compensation.

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E. Upon appearance for the parties the following issues framed by the learned Court below:-

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A. Whether the claim petition as framed is maintainable?

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B. Whether the claimant has valid cause of action for filing the claim petition?

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C. Whether the driver had a valid and effective license at the time of accident?

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D. Whether the deceased died due to rash and negligent driving of the vehicle?

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E. Whether the vehicle was insured at the time of the accident?

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F. Whether the terms and conditions of the insurance policy violated by the driver of the vehicle?

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G. Whether the Claimant is entitled to get compensation as claimed, if so, to what extent?

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H. Whether the owner or the insurer of the vehicle is liable to pay compensation?

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F. The issues were decided in favour of claimant and the counsel for the appellant has assailed the impugned award by raising two points :-

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a. The learned court below did not frame any issue regarding contributory negligence of the deceased.

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b. The deceased was admittedly an unmarried person having only one claimant i.e. his father, accordingly, the deduction to the extent of 50% on the income assessed should have been allowed on account of personal expenses of the deceased instead of only 1/3^rd of the income assessed.

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G. Counsel for the appellant submits that although no witnesses have been examined on behalf of the insurance company, but the aforesaid aspect of the matter was required to be taken care of by the learned court below.

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7. Counsel appearing on behalf of the claimant on the other hand submits that there is no dispute that the deceased was about 18 years of age, who was working as a cleaner in the offending vehicle. He submits that the insurance company had totally denied its liability to make payment of any compensation and had contended that it was for the claimant to prove that the deceased had expired on account of accident arising out of vehicle involved in this case. He further submits that issue has been framed by the learned court below wherein a point has been raised regarding entitlement of the claimant to get compensation as claimed, if so, to what extent. Accordingly, the extent of compensation as indicated in issue itself, indicates that the matter has been considered in entirety by appreciating the materials on record.

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8. Counsel for the claimant further submits that although the claimant had not filed any separate appeal, but from the perusal of the impugned order, it is a fit case for exercise of power under Order XLI Rule 33 of the Code of Civil Procedure for the purposes of awarding just and fair compensation, which has not been awarded by the learned court below in as much as the compensation awarded is in direct conflict with the various judicial pronouncements made by the Hon’ble Supreme Court including the judgment passed by the Hon’ble Supreme Court reported in (2013) 9 SCC 54 (Rajesh & Ors. Vs. Rajbir Singh & Ors.) wherein the Hon’ble Supreme Court has held that multiplier of 18 to be taken in case of death of a person between 15 to 20 years of age, for the purposes of amount of compensation but in the impugned award multiplier has been taken as 16. Counsel for the claimant further submits that so far as conventional heads are concerned namely loss of estate, loss of consortium and funeral expenses, nothing has been awarded. He submits that in the case of National Insurance Company Limited vs. Pranay Sethy (supra) , the amount has been quantified as Rs. 15,000/-, Rs. 40,000/and Rs. 15,000/- respectively. He also indicates that so far as the future prospects are concerned, the issue has been settled by the Hon’ble Supreme Court in the aforesaid judgment itself that an addition of 40% of the established income of the deceased towards future prospects is required to be granted, even when the deceased was self-employed or on a fix salary. It was left to the parties to adduce evidence to establish that it would be unfair and inequitable.

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9. Accordingly, the counsel further submits that the deceased was merely 18 years of age and his future

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prospects ought to have been added to his salary, which has been totally ignored by the learned court below.

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10. He further submits that the learned lower court has recorded a finding that the deceased was earning Rs. 4,500/- per month, but erroneously calculated the salary for each date dividing it by 30 and excluded the amount to the extent of 4 rest days and reduced the monthly income by 4 days and calculate it at Rs, 3,900/- per month. He submits that such approach of the learned Tribunal is unknown in as much as once the monthly income is established, the amount has to be calculated on the basis of monthly income and no further deduction on account of rest days is permissible under law.

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11. Accordingly, the counsel further submits that the impugned judgment passed by the Motor Vehicle Accident Claim Tribunal is perverse and the amount of compensation may be reconsidered and awarded to the respondentclaimant in exercise of power under Order XLI Rule 33 of the Code of Civil Procedure. He submits that so far as the contributory negligence is concerned, the learned court below has categorically held that the accident had occurred due to rash and negligence act of the offending vehicle and based its findings on the certified copy of the report of police, which does not call for any interference. Admittedly, there is no eye witness to the occurrence. He further submits that otherwise also the vehicle is supposed to run on the road and if a person is sleeping by the road side no contributory negligence can be attributed, if he died out of an accident by a vehicle which moved leaving the road itself.

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12. After hearing counsels for the parties and after considering the materials on record this Court finds as follows: -

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(a) Admittedly, the deceased was 18 years of age who was working as a cleaner in the offending vehicle bearing registration no. JH 17B – 1387 and he expired on account of an accident by the said vehicle. During the course of argument counsel for the appellant has argued only on two points, firstly, the learned court below did not frame any issue on the point of contributory negligence and secondly the deduction on account of personal expenses of the deceased ought to have been taken to the extent of of 50%, as the only claimant of the deceased is his father and deceased was unmarried.

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(b) Accordingly, this Court finds that there is no dispute before this Court that the offending vehicle was insured and the accident had taken place from the offending vehicle.

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(c) This Court further finds that the insurance company did not lead any evidence although in the written statement, on the one hand, they denied the accident from the offending vehicle and on the other hand, alleged that the deceased himself was guilty of the contributory negligence, but no evidence was led by the insurance company much less on the point of contributory negligence of the deceased.

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(d)This Court further finds that although no specific issue was framed before the learned court below on the point of alleged contributory negligence of the deceased, but certainly specific issue was framed as to whether the claimant was entitled to get compensation as claimed, if so, to what extent.

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(e) This Court finds that the deceased was alleged to have been sleeping by the side of the road and not on the road. The finding of the learned court below that the accident had taken place out of rash and negligent act of the

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driver of the vehicle is interalia, based on the certified copy of the report of the police and there is no eyewitness to the occurrence. Accordingly this Court of the considered view that no contributory negligence could have been attributed to the deceased. The learned court below after considering the materials on record held that the deceased had died due to rash or negligent driving of the vehicle. Admittedly, the driver was having a valid driving license and the vehicle was also covered by the insurance policy. Accordingly, the contention of the appellant that there was contributory negligence on the part of the deceased is hereby rejected.

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(f) The other contention of the counsel for the appellant is that the deceased was unmarried person accordingly the deduction on account of his personal expenses ought to have been to the extent of 50% and not one-third as awarded by the learned court below.

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(g)This Court further finds that no argument has been advanced by the claimant on this point and this plea of the appellant insurance company is in consonance with the law laid down by the Hon’ble Supreme Court vide judgement reported in (2009) 6 SCC 121 (Sarla Verma (SMT) & Ors. Vs. Delhi Transport Corporation & Anr. ) Para 30 to 32 , followed in the judgement of Reshma Kumari( para 43.6) and has been affirmed by the Hon’ble supreme court in the case of (2017) 16 SCC 680 (National Insurance Co. Ltd. Vs. Pranay Sethi and Ors.). Para 31 of judgement reported in (2009) 6 SCC 121 (Sarla Verma (SMT) & Ors. Vs. Delhi Transport Corporation & Anr. ) reads as follows: -

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“Where the deceased was a bachelor and the

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claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally,

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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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13. Accordingly this court finds that deduction on account of personal expenses of the deceased, who was admittedly a bachelor, ought to have been to the extent of 50% and not one third as held by the learned court below. 14. So far as the contention of the claimant in regard with erroneous quantification of compensation is concerned, this Court finds it fit to exercise power under Order XLI Rule 33 of the Code of Civil Procedure for the purposes of doing complete justice between the parties although, no appeal as such has been filed by the claimant. The quantification of just and fair compensation is as follows:-

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(a) So far as the income of the deceased is concerned, this Court finds that the learned court below has given specific finding that the deceased was earning Rs. 4,500/per month, but the learned court below went ahead to deduct his salary to the extent of 4 days (holidays in the month) and calculated the monthly salary on the basis of 26 days in a month and arrived at a figure of Rs. 3,900. This Court is of the considered view that when admittedly, the deceased was an employee of the truck

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owner, there was no occasion to deduct any further amount from the monthly income of the deceased. Accordingly, this Court finds that the monthly income of the deceased ought to have been taken at Rs. 4,500/- per month as assumed by the learned court below and no further deduction on account of any holiday was called for under the facts and circumstances of this case for arriving at just and fair compensation to the claimant.

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(b) So far as the personal expenses of the deceased are concerned, the same ought to have been deducted by 50% in view of the ratio of the case of Sarla Verma (supra) as already held above and accordingly the amount for the purposes of compensation comes to Rs. 2250/- per month (50% of Rs.4500/-).

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FUTURE PROSPECTS

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(c) So far as the future prospects are concerned, it has been held by the Hon’ble Supreme Court in the judgment reported in (2017) 16 SCC 680 (National Insurance Co. Ltd. Vs. Pranay Sethi and Ors.) that the future prospects in connection with the deceased aged below 40 years can be taken to be 40% in case the deceased is having fixed salary or self employed. In the concluding para 59 of the said judgement in para 59.3 and 59.4 it has been held as follows:-

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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.

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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.

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15. Considering the facts of this case, this Court finds that admittedly the deceased was an employee of the truck owner of the truck involved in this case and accordingly it can be safely said that he was working on a fixed salary. Accordingly, considering the age of the deceased, which was admittedly 18 years, 40% of his income is taken as loss on account of future prospects.

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MULTIPLIER

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(d) So far as multiplier is concerned, in the case reported in (2017) 16 SCC 680 (National Insurance Co. Ltd. Vs. Pranay Sethi and Ors.) , at Para Nos. 42, 43 and 44 it has been held as under :-

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“ 42. As far as the multiplier is concerned, the Claims Tribunal and the courts shall be guided by Step 2 that finds place in para 19 of Sarla Verma read with para 42 of the said judgment. For the sake of completeness, para 42 is extracted below:

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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, Trilok Chandra and Charlie), 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

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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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43. In Reshma Kumari, the aforesaid has been approved by stating, thus:

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“37. … It is high time that we move to a standard method of selection of multiplier, income for future prospects and deduction for personal and living expenses. The courts in some of the overseas jurisdictions have made this advance. It is for these reasons, we think we must approve the Table in Sarla Verma for the selection of multiplier in claim applications made under Section 166 in the cases of death. We do accordingly. If for the selection of multiplier, Column (4) of the Table in Sarla Verma is followed, there is no likelihood of the claimants who have chosen to apply under Section 166 being awarded lesser amount on proof of negligence on the part of the driver of the motor vehicle than those who prefer to apply under Section 163-A. As regards the cases where the age of the victim happens to be up to 15 years, we are of the considered opinion that in such cases irrespective of Section 163-A or Section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed. This is to ensure that the claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the 1988 Act. In all other cases of death where the application has been made under Section 166, the multiplier as indicated in Column (4) of the Table in Sarla Verma should be followed.”

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44. At this stage, we must immediately say that insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and “income” means

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actual income less the tax paid. The multiplier has already been fixed in Sarla Verma which has been approved in Reshma Kumari with which we concur.”

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In the instant case, in view of the aforesaid judgement the multiplier would be 18.

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FUNERAL EXPENSES

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(e) So far as the funeral expenses are concerned, there is no dispute that the same would be to the extent of Rs. 15,000/- as per the judgement passed by Hon’ble Supreme court reported in (2017) 16 SCC 680 (National Insurance Co. Ltd. Vs. Pranay Sethi and Ors.) .

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LOSS OF ESTATE

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16. Further compensation on account of loss of estate of the deceased would be at Rs. 15,000/- in view of the judgment passed by the Hon’ble Supreme Court reported in (2017) 16 SCC 680 (National Insurance Co. Ltd. Vs. Pranay Sethi and Ors.) .

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17. This Court further finds that nothing has been awarded to the claimant on account of loss of estate, loss of consortium and funeral expenses which has been duly quantified by the Hon’ble Supreme Court in the judgment of Pranay Sethy at Rs. 15,000/-, 40,000/- and Rs. 15,000/respectively. Accordingly, the claimant is entitled to further amount of Rs. 15,000/-, 40,000/- and Rs. 15,000/respectively on account of loss of estate, loss of consortium and future expenses.

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18. The amount of compensation is calculated as follows:

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Age of the deceased 18 years, Yearly income	Rs.
(4,500 X 12)	54,000/-
(Future Prospects) 40% of Rs. 54,000/-	Rs.

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	21,600/-
Loss of earning per year	Rs. 75,600/-
50% deduction towards personal expenses of	Rs.
the deceased.	37,800/-
(50% of 75,600/-)

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Multiplier of	Rs. 37,800/- X 18	Rs. 6,80,400/-
18 as
deceased was
aged about
18 years
(unmarried male)
Loss of		Rs. 40,000/-
Consortium
Loss of Estate		Rs. 15,000/-
Funeral		Rs.15,000/-
Expenses
	Total	Rs. 7,50,400/-
Amount		Rs.50,000/-
Already Paid
by way of interim compensation
Remaining amount		Rs.7,00,400/-

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19. So far as the interest is concerned, the claimant would be entitled to interest on the differential amount of the assessed compensation @ 6% per annum from the date

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of filing of this appeal i.e. 15.03.2011 till payment by the appellant.

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20. So far as the amount which was already awarded by the learned court below, i.e. Rs.4,49,200/-, the appellant would be entitled to payment of interest on the said amount as already awarded by the impugned award .

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21. In view of the aforesaid findings, the impugned award is hereby modified by way of enhancement of compensation and is directed to be paid by the appellant to the claimants upon proper identification before the learned court below. The statutory deposit is directed to be remitted to the learned court below for its payment to the claimant.

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22. Accordingly, this appeal is disposed of.

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23. Pending I.A.s, if any, are stands dismissed as not pressed.

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(Anubha Rawat Choudhary, J.)

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Mukul

Br.Manager, Oriental Insurance v. Dharamlal Deshi Dharmlal Deh

Case brief

What is this about?

What did the court decide?

Br.Manager, Oriental Insurance v. Dharamlal Deshi Dharmlal Deh

Case brief

What is this about?

What did the court decide?

What the court decided

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