Partly allowed

Mina Devi v. Suman Kumar Singh

Jharkhand HC8 Aug 2023MA/111/2019

Case brief

AI extract

What is this about?

High Court of Jharkhand allowed this miscellaneous appeal partly. Upholding the Tribunal's assessment of the deceased's income, the Court enhanced the loss of consortium compensation from Rs. 40,000 to Rs. 1,20,000, directing the insurer to pay an additional Rs. 80,000.

What did the court decide?

Enhanced loss of consortium to total Rs. 1,20,000; total compensation increased to Rs. 11,58,000 with interest at 7% per annum.

Mina Devi Vs Suman Kumar Singh — Medical Negligence | Jharkhand HC (2023)

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M.A. No. 111 of 2019

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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M.A. No.111 of 2019

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Mina Devi age about 39 years, w/o late Basudev Yadav

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Jitendra Kumar Yadav, age about 17 years 10 month

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Janki Kumari age about 16 year 8 month The appellant no.2, is minor son and appellant no.3 is minor daughter of deceased Basudev Yadav, both minor appellants are being represented through their mother and natural guardian i.e. Mina Devi (appellant no.1 herein)

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All are resident of Village- Pahridi, Post- Sahara & P.S. Taljhari, Dist. Dumka (Jharkhand). At present R/o Mohalla- Aliganj, P.O. Pakur, P.S. Pakur (T), Dist. Pakur (Jharkhand)

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.... .... …. Appellants

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Versus

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Suman Kumar Singh, s/o Girish Prasad Singh, resident of VillageMaheshpur Bazar, C/o Birbal Mandal, P.O. & P.S.- Maheshpur, Dist. Pakur, At present at P.O. & P.S.- Krishnpuri, Dist. Deoghar (Jharkhand)

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The Divisional Manager, Oriental Insurance Company Ltd. (of Dist. Pakur, Dumka, Sahebganj, Deoghar, Godda, Bhagalpur etc.,) Divisional Office, Meghmalhar Building R.B.S.S.S. Road, Bhagalpur, P.O, P.S. & Dist. Bhagalpur (Bihar) PIN No. 812001

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.... .... .... Respondents

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For the Appellants : Mr. Yasir Arafat, Advocate : Mr. Arvind Kr. Lall, Advocate For the Respondents : Mr. Manish Kumar, Advocate : Mr. Lalit Yadav, Advocate

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:-

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Heard the parties.

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This miscellaneous appeal has been filed under Section 173 of Motor Vehicle Act against the judgment and award dated 10.10.2018 passed by the District Judge-I-cumMotor Accidents Claims Tribunal, Pakur in Motor Vehicle Accident Claim Case No. 69 of 2017 by which the learned

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M.A. No. 111 of 2019

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Tribunal has awarded a sum of Rs.10,78,000/-.

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The brief fact of the case is that on 22.05.2014 when the deceased- Basudeo Yadav @ Bahudeo Pd. Yadav @ Basudev Pd. Yadav was in his truck which was parked, the offending truck being rashly and negligently driven by its driver bearing Registration No. JH15F/9311 dashed the truck of the deceased standing beside the road and due to severe attack, the deceased- Basudeo Yadav @ Bahudeo Pd. Yadav @ Basudev Pd. Yadav got severely injured and died on the driving seat itself.

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The postmortem examination of the deceased was conducted wherein his age has been mentioned as 38 years. The matter was investigated and final form was submitted by police stating that the case to be a clueless one.

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The opposite party no.1-owner of the vehicle in his written statement admitted that he is the owner of the truck of which the deceased was the driver but the truck was insured with the opposite party no.2-insurance company. The opposite party no.2 does not dispute the insurance policy.

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In support of their case, the claimants examined two witnesses being the C.W.1- Mina Devi who is the widow of the deceased and C.W.2- Mahabir Prasad Yadav who is the eyewitness to the occurrence. Besides the oral evidence, the claimants have proved the documents which have been marked Ext. 1 to 15.

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C.W.1 has stated about the death of her husband in the

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said accident. She went to the place of occurrence after getting information about the accident. The monthly salary of her husband was Rs.15,000/-. C.W.2 has also stated in detail about the accident. He has also stated that the deceased was earning Rs.15,000/- per month apart from the daily allowance ( khuraki ). In his cross-examination, he has stated that he does not remember the offending truck.

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On the basis of the rival pleading of the parties, the

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learned Tribunal settled the following six issues:-

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(I) Whether the claim petition, as framed, is maintainable?

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(II) Whether the claimants have valid cause of action? (III) Whether the deceased Badudeo Yadav died due to rash and negligent driving of unknown offending vehicle?

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(IV) Whether the vehicle No. JH15F/9311 at the time of alleged accident was insured with OP No.2?

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(V) What monthly income of the deceased was?

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(VI) Whether the claimants are entitled to get compensation as claimed?

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The learned Tribunal first took up issue no. (III) and

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after considering the evidence in the record decided the said issue in favour of the claimants and against the opposite parties. The learned Tribunal next took up issue no.(IV) and came to the conclusion that the vehicle was insured with the

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opposite party no.2-insurance company. The learned Tribunal next took up issue nos. (V) and (VI) together and assessed the age of the deceased to be 38 years and in the absence of any documentary proof and the fact that no documentary proof in support of the income of the deceased

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has been brought on record; assessed the income of the deceased to be Rs.6,000/- per month. Deducted 1/3^rd towards his personal expenses and added 40% towards future prospects and applied the multiplier 15 and added Rs.40,000/- as loss of consortium and Rs.15,000/- each towards funeral expenses and loss of estate and directed the insurance company to pay Rs.10,78,000/- with interest thereon at the rate of 7% per annum.

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Learned counsel for the appellants relied upon the judgment of Hon’ble Supreme Court of India in the case of Kala Devi & Ors. vs. Bhagwan Das Chauhan & Ors. dated 31.10.2014 in Civil Appeal No. 9972 of 2014 wherein, in the facts of that case, the Hon’ble Supreme Court of India taking into consideration that a driver in Himachal Pradesh on an average earns Rs. 9,000/- per month as per Minimum Wages Act and in the absence of documents, assessed the income to be Rs.9,000/- per month, it is submitted by the learned counsel for the appellants that the learned Tribunal erred by assessing the income to be Rs.6,000/- and should have assessed the income at least Rs.9,000/- per month.

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It is next submitted by the learned counsel for the appellants that the interest at the rate of 9% ought to have been awarded by the learned Tribunal. It is then submitted by the learned counsel for the appellants that the learned Tribunal ought not to have given a direction to deposit 60% of the awarded amount in the fixed deposit for five years

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M.A. No. 111 of 2019

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and withdrawal of the amount shall be permitted subject to financial need from time to time. It is further submitted by the learned counsel for the appellants that since there are three dependents, loss of consortium of Rs.1,20,000/- ought to have been awarded by the learned Tribunal instead of Rs.40,000/-. Hence, it is submitted that the impugned judgment and award be modified by enhancing the compensation.

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Learned counsel for the respondents on the other hand defends the impugned judgment and award and submits that the fact of Kala Devi & Ors. vs. Bhagwan Das Chauhan & Ors. (supra) is not applicable to the facts of the case because in that case, as document was brought on record that in Himachal Pradesh as per the Minimum Wages Act, a driver on an average earns Rs.9,000/- per month hence, the Hon’ble Supreme Court of India in the absence of any document assessed the income of the driver to be Rs.9,000/but in State of Jharkhand as per the minimum wages, the amount is considerably low and hence, the learned Tribunal has rightly assessed the income of the deceased to be Rs.6,000/-. It is further submitted by the learned counsel for the respondents that in that case, Hon’ble Supreme Court of India deducted 20% of the income towards income tax. So the net income was Rs.7,200/- and here the learned Tribunal has not deducted any income tax even though it added 40% of the income towards future prospects. Hence, it is

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M.A. No. 111 of 2019

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submitted that there is no justifiable reason to interfere with the income of the deceased. It is next submitted by the learned counsel for the respondents that in the absence of any evidence brought on record by the appellants-claimants regarding the rate of interest that was prevalent in the bank on the date of accident or on the date of the award, the learned Tribunal has rightly awarded interest at the rate of 7% per annum and there is no justifiable reason to interfere with the same. Hence, it is submitted that this appeal being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials in the record, the following point for consideration that cropped up in this appeal is :- (i) “Whether the quantum of compensation awarded to the appellants-claimants be enhanced?”

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Now coming to the facts of the case, after going through the materials in the record, this Court finds that there is absolutely no document in the record to suggest the financial status of the deceased. His bank account or asset particulars have not been brought on record to enable the learned Tribunal to make the assessment of his financial status. Besides, there is no document in the record regarding income of the deceased. It is common knowledge that in view of hilly terrain in Himachal Pradesh, the driver has to be a more skillful then the driver who drives the vehicle in the plains like the State of Jharkhand and there is

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no material brought on record to suggest as to what was the minimum wages of the drivers in the State of Jharkhand. Moreover, unlike the case of Kala Devi & Ors. vs. Bhagwan Das Chauhan & Ors. (supra), the learned Tribunal has not deducted any income tax of the deceased, who arrived at the lesser net income. Hence, under such circumstances, this Court is of the considered view that keeping in view the evidence in the record, the income of the deceased assessed by the learned Tribunal to be Rs.6,000/- per month in the year 2014 appears to be just and proper and does not warrant any interference by this Court.

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So far as the contention of the learned counsel for the appellants regarding the rate of interest awarded is concerned, it is crystal clear that the rate of interest is to be awarded on the corresponding rate of interest awarded by the banks on the relevant date but this Court after perusal of the record finds that no evidence or material was brought on record by the appellants-claimants as to what was the rate of interest of the bank prevalent at the relevant time. Hence, under such circumstances, this Court do not find any plausible reason to interfere with the rate of interest awarded by the learned Tribunal.

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So far as the loss of consortium is concerned, the Hon’ble Supreme Court of India in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru reported in (2018) 18 SCC 130 has held that each of the dependents of

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the deceased must get compensation of Rs.40,000/- each.

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Now coming to the facts of the case, there are three dependents. So Mina Devi must get spousal consortium of Rs.40,000/- whereas Jitendra Kumar Yadav and Janki Kumari being the son and daughter of the deceased are entitled to get Rs.40,000/- each as filial consortium. Thus, the claimants are entitled to total consortium of Rs.1,20,000/- but only Rs.40,000/- has been awarded by the learned Tribunal.

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Hence, this Court is of the considered view that the total amount of compensation is to be enhanced by Rs.80,000/-. The sole point for determination is answered accordingly.

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In view of the discussions made above, the impugned judgment and award dated 10.10.2018 passed by the District Judge-I-cum-Motor Accidents Claims Tribunal, Pakur in Motor Vehicle Accident Claim Case No. 69 of 2017 is modified by directing the opposite party no.2- Divisional Manager, Oriental Insurance Company Limited to pay a sum of Rs.11,58,000/- with simple interest thereon at the rate of 7% per annum from the date of claim application to till the date of actual payment less the amount already paid to the claimants from the date of this order.

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The claimants are at liberty to make appropriate application before the learned Tribunal for release of the fixed deposit amount if there is any such exigency and upon

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such application being filed, the learned Tribunal is directed to consider the same forthwith.

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