Partly allowed

Kumkum Devi v. Divisional Manager the New India Assurance Company Limited

Jharkhand HC18 May 2023MA/30/2019

Case brief

AI extract

What is this about?

High Court modified a motor accident compensation award by enhancing the consortium head from Rs.40,000 to Rs.3.2 lakh per claimant, resulting in a total award of Rs.15,85,520, while affirming the 6% interest rate based on the deceased's age and absence of contrary evidence.

What did the court decide?

Insurance Company directed to pay Rs.15,85,520 with simple interest at 6% per annum from the date of filing; Registrar General directed to remit deposited amounts.

Kumkum Devi Vs Divisional Manager the New India Assurance… — Insurance | Jharkhand HC (2023)

¶1

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No.204 of 2019

¶3

------

¶4

(Against the Judgment and Award dated 06.10.2018 passed by Learned District Judge-VIII-cum-MACT, Dhanbad, passed in Motor Accident Claim Case No.274 of 2017)

¶5

Divisional Manager, The New India Assurance Company Ltd., B.P. Agarwala Building, Dhansar, P.O. Dhansar, P.S. Bank More, District Dhanbad, represented through its Dy. Manager and Incharge, T.P. Claims Hub, The New India Assurance Co. Ltd., Ranchi Division, Sethi Corporate, 2^nd Floor, P.P. Compound, Ranchi, P.O. and P.S. Hindpiri, District Ranchi, Jharkhand.

¶6

.... …. Opposite Party No.2/Appellant

¶7

Versus

¶8

(1) Kumkum Devi, wife of Late Bibhuti Bhushan Choudhary,

¶9

(2) Doli Kumari, W/o Niraj Kumar, D/o Late Bibhuti Bhushan Choudhary,

¶10

(3) Puja Kumari daughter of Late Bibhuti Bhushan Choudhary,

¶11

(4) Neha Priya, daughter of Late Bibhuti Bhushan Choudhary,

¶12

(5) Shubham Kumar, son of Late Bibhuti Bhushan Choudhary,

¶13

(6) Satyam Kumar, son of Late Bibhuti Bhushan Choudhary, (Minor Plaintiff No.6 being guided and represented by his natural guardian, mother Plaintiff No.1/Respondent No.1)

¶14

(7) Basanti Devi, wife of Ram Narayan Choudhary,

¶15

(8) Ram Narayan Choudhary, son of Late Hari Prasad Choudhary, (All are resident of Sadhobad, Tola- Barwadih, P.O. Kharni, P.S. Barwadda, District Dhanbad (Jharkhand)

¶16

.... …. Plaintiffs/Applicants/Respondents

¶17

(9) Sadan Sharma, son of Late Ambika Singh, resident of Chanakya Nagar, K.G. Ashram, Saraidhela, P.O. & P.S. Saraidhela, District Dhanbad, Jharkhand (Owner of the offending vehicle No. JH10S-0816)

¶18

.... …. Opposite Party No.1/Respondent

¶19

¶20

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶21

With

¶22

M.A. No.30 of 2019

¶23

------

¶24

(1) Kumkum Devi, W/o Late Bibhuti Bhushan Choudhary, aged 47 yrs

¶25

(2) Doli Kumari, W/o Sri Niraj Kumar d/o Late Bibhuti Bhushan Choudhary, aged about 31 years,

¶26

(3) Puja Kumari D/o Late Bibhuti Bhushan Choudhary, aged 23 years

¶27

(4) Neha Priya, D/o Late Bibhuti Bhushan Choudhary, aged 22 years

¶28

(5) Shubham Kumar, S/o Late Bibhuti Bhushan Choudhary, aged 20 yrs

¶29

(6) Satyam Kumar, S/o Late Bibhuti Bhushan Choudhary, aged 16 yrs

¶30

(7) Basanti Devi, W/o Sri Ram Narayan Choudhary, aged 73 years

¶31

(8) Ram Narayan Choudhary, S/o Late Hari Prasad Choudhary, aged 75 yrs

¶32

(Minor appellant no.6 is being guided and represented by his natural guardian mother appellant no.1 who has no adverse interest against him)

¶33

All are resident of Sadhobad, Tola Barwadih, P.O. Kharni, P.S. Barwadda, Dist. Dhanbad (Jharkhand)

¶34

.... …. Applicants/Appellants

¶35

Versus

¶36

(1) Divisional Manager, The New India Assurance Company Limited, B.P. Agarwalla Building, P.O. Dhansar, P.S. Bank More Dist.- Dhanbad.

¶37

(2) Sadan Sharma S/o Late Ambika Singh, r/o Chanakya Nagar, K.G. Ashram, P.O., P.S. Saraidhela, Dist. Dhanbad, (Jharkhand) .... …. Opposite Parties/Respondents

¶38

¶39

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶40

For the Appellants	: Mr. Ganesh C. Jha, Advocate (In M.A. No.204 of 2019) Mr. Nikhil Ranjan, Advocate (In M.A. No.30 of 2019)
For the Respondents	: Mr. Nikhil Ranjan, Advocate
	Mr. Ranjan Kumar, Advocate
	(In M.A. No.204 of 2019)
	Mr. Ganesh C. Jha, Advocate
	Mr. Ranjan Kumar, Advocate
	(In M.A. No.30 of 2019)

¶41

P R E S E N T

¶42

HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶43

------

¶44

By the Court : - Heard the parties.

¶45

Both these Miscellaneous Appeals have been preferred against the Judgment and Award dated 06.10.2018 passed by Learned District JudgeVIII-cum-MACT, Dhanbad, in Motor Accident Claim Case No.274 of 2017 whereby and where under the learned tribunal has awarded in total a sum of Rs.13,05,520/- along with interest @ 6% per annum from the date of filing of the case i.e. 10.11.2017 and directed the defendant No.2- The New India Assurance Company Limited to pay compensation amount to the claimants within a period of sixty days from the date of the order and gave liberty to the defendant No.2- Insurance Company to recover the amount paid by it to the claimants from the opposite party No.1- owner of the vehicle through the process of the court.

¶46

The brief facts of the case is that on 27.09.2017 at about 11:00 pm when the deceased- Bibhuti Bhushan Choudhary was coming from Barwadda, the offending tanker bearing registration No. JH-10S-0816 being rashly and negligently driven, dashed him and the body of the deceased came under the wheel of the offending tanker and Bibhuti Bhushan Choudhary sustained injuries and died of such injuries at the spot. In connection with the accident, Rajganj P.S. Case No.41 of 2017 was registered. It is stated that the deceased- Bibhuti Bhushan Choudhary was

¶47

¶48

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶49

the Secretary of Zila Parishad Member- Sri Ashok Kumar Singh and was getting a salary of Rs.19,600/- per month and the deceased was aged about 50 years on the date of accident.

¶50

The defendant No.1- owner of the vehicle, in his written statement, challenged the maintainability of the claim petition and further pleaded that since the offending tanker at the time of accident was insured by the defendant No.2- Insurance Company, hence, the defendant No.2Insurance Company is liable to pay the compensation to be awarded; by way of indemnification.

¶51

The defendant No.2- Insurance Company, in its written statement, pleaded that the driver of the tanker was not having a valid driving license at the time of accident and the deceased was not aged about 50 years nor his income was Rs.19,600/-. The Insurance Company also denied that the deceased was working as a Secretary of Zila Parishad Member.

¶52

On the basis of the rival pleadings of the parties, the learned tribunal framed the following six issues:-

¶53

(1). Is the claim application as framed and filed maintainable?

¶54

(2). Have the applicant got valid cause of action for the claim?

¶55

(3). Whether the deceased Bibhuti Bhushan Choudhary died in vehicular accident caused by Tanker bearing registration No. JH-10S-0816?

¶56

(4). Is there any violation of the terms and conditions of insurance policy issued by O.P. No.2?

¶57

(5). Whether the applicant is entitled for amount of compensation, if so, from whom and to what extent?

¶58

(6). To what relief/reliefs applicant is entitled for?

¶59

In support of their case, the claimants examined four witnesses and also proved the documents marked Ext.1 to 4 and eleven documents were marked as “X” series for identification being X to X/10 while one witness was examined by the defendant No.2 besides the defendant No.2 proved three documents marked as Ext. A to C and one newspaper cutting was marked Y for identification.

¶60

The learned tribunal first took up issue No.(3) and considering the testimony of the witness particularly the P.W.2 who is the eye-witness to the occurrence, came to the conclusion that the deceased- Bibhuti Bhushan Choudhary died in a motor vehicle accident due to rash and negligent driving of the driver of the offending tanker.

¶61

¶62

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶63

The learned tribunal next took up issue No.(4) and held that the driver of the offending vehicle was not having a driving license to drive vehicles carrying goods of hazardous nature. Hence, the same amounts to violation of the terms and conditions of the insurance policy.

¶64

The learned tribunal next took up issue No.(5) and on the basis of the age of the deceased mentioned in the post-mortem report, assessed the age of the deceased to be 50 years. The tribunal further considered that though the P.W.4 has stated that the deceased was a Secretary and from the Income-Tax Returns filed by the P.W.4, it appears that the annual income of the P.W.4 was Rs.13,00,000/- to Rs.14,00,000/- per annum but no evidence was brought on record that the deceased was appointed as a Personal Secretary except the oral evidence of P.W.4 and it appeared to the tribunal that P.W.4 was not in a condition to pay a salary of Rs.19,600/per month to the deceased and though as a Member of Zila Parishad he was not given any privilege for having a Secretary and the fact that the P.W.4 did not give any appointment letter to the deceased but taking into consideration that the deceased was a prominent person of the locality as is evident from the paper cutting marked “Y” for identification, the learned tribunal assessed the income of the deceased to be Rs.9,000/- per month and after deducting one-fifth towards personal expenses, the annual contribution after deduction worked out to Rs.86,400/-. Since the age of the deceased was 50 years, 10% of the income was added towards future prospect and the multiplier of 13 was applied. The learned tribunal further awarded Rs.40,000/- under the head ‘loss of consortium’ and Rs.15,000/- towards ‘loss of estate’ and another Rs.15,000/- towards funeral expenses and arrived at the final amount of compensation of Rs.13,05,520/-.

¶65

Mr. G.C. Jha- learned counsel for the appellant in M.A. No.204 of 2019 submits that the learned tribunal erred in assessing and appreciating the evidence in the record in its proper perspective. It is next submitted by Mr. Jha that the P.W.4 did not bring any document to show the appointment of the deceased as his Secretary and as the learned tribunal itself has arrived at the conclusion that it is difficult to believe that the deceased was employed as a Personal Secretary of a Member of Zila

¶66

¶67

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶68

Parishad being the P.W.4, erred in assessing the income of the deceased at Rs.9,000/- per month only on the ground that he was a man of prominence on the basis of a newspaper cutting marked Y for identification; which was not even proved and brought into evidence. It is next submitted by Mr. Jha that the learned tribunal erred in assessing the age of the deceased merely on the basis of the post-mortem report. Hence, it is submitted that the quantum of compensation awarded by the learned tribunal be reduced.

¶69

Learned counsel for the appellant of M.A. No.30 of 2019 on the other hand submits that the learned tribunal erred in assessing a meagre amount of Rs.9,000/- as the monthly income of the deceased. It is then submitted that the learned tribunal erred by taking into consideration the income of the deceased and his various L.I.Cs. and savings. It is further submitted by the learned counsel for the appellant of M.A. No.30 of 2019 that the learned tribunal erred in allowing only 10% of the established income towards future prospect and the same ought to have been 15%. It is then submitted that the learned tribunal erred in granting compensation @ 6% per annum only which should have been 12% per annum. Learned counsel for the appellant of M.A. No.30 of 2019 relies upon the judgment of the Hon’ble Supreme Court of India in the case of United India Insurance Co. Ltd. vs. Satinder Kaur alias Satwinder Kaur and Others reported in (2021) 11 SCC 780 and submits that the tribunal ought to have allowed spousal consortium of Rs.40,000/- to the claimant No.1, parental consortium of Rs.40,000/- each to the claimant Nos.2 to 6 and failure consortium of Rs.40,000/- each to the claimant Nos.7 and 8. Hence, it is submitted that the amount of compensation awarded, be modified accordingly.

¶70

Learned counsel appearing for the owner of the vehicle submits that he has nothing to submit in these appeals. 14. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the following points crop up for determination in this appeal:-

¶71

(i) Whether the amount of compensation awarded by the learned tribunal is proper and if not then what should be the compensation to be awarded?

¶72

(ii) Whether the interest awarded by the learned tribunal @6% per

¶73

¶74

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶75

annum is proper?

¶76

So far as the first point for determination is concerned, after going through the materials available in the record it is crystal clear that there is no documentary evidence brought on record by any of the parties regarding the income of the deceased. Though the P.W.4 has stated that the deceased was working as a Secretary of him but as the payment of salary of the deceased was not reflected in the Income-Tax Returns of the P.W.4 nor the P.W.4 could produce any appointment letter of the deceased. A paper cutting which was marked as Ext. Y for identification was produced in the learned tribunal wherein it has been mentioned that the deceased was a renowned journalist of Barwadih; which shows that at best the deceased was having acquaintance of the P.W.4. Perusal of the claim petition also reveals that there is over-writing in the place of monthly income of the deceased in paragraph-29 of the claim petition. Under such circumstances and facts of this case assuming that the deceased was a block level journalist, in the absence of any document regarding educational qualification of the deceased, any particulars of bank account to show what was his income or any other relevant material, the assessment of monthly income of the deceased to be Rs.9,000/- appears to be proper.

¶77

So far as the future prospect is concerned, it is crystal clear from the judgment of the Hon’ble Supreme Court of India in the case of National Insurance Co. Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680 , paragraph 59.4 of which reads as under:-

¶78

“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.”

¶79

that in case the deceased was self-employed or on a fixed salary and was below the age of 40 years with a fresh evidence in this regard that the deceased has not attained the age of 40 years, 40% of the established income should be added as future prospect and if the deceased is between

¶80

¶81

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶82

the age of 40 to 50 years i.e. 40 years but not attained the age of 50 years, the addition under the heading of future prospect should be 25% of the established income and when the deceased was between the age of 50 to 60 years, the addition under the heading future prospect should be 10% of the established income. Under such circumstances, since the age of the deceased is 50 years from the post-mortem report, the addition of 10% towards future prospect as made by the learned tribunal do not warrant any interference in exercise of the appellate jurisdiction by this Court. But in view of the judgment of Hon’ble Supreme Court of India in the case of United India Insurance Co. Ltd. vs. Satinder Kaur alias Satwinder Kaur and Others (supra), under the heading consortium, the eight claimants ought to have been awarded Rs.40,000/- each i.e. claimant No.1 ought to have been awarded spousal consortium of Rs.40,000/- and in respect of claimant Nos.2 to 6, parental consortium of Rs.40,000/- x 5 = RS.2,00,000/and in respect of claimant Nos.7 and 8 filial consortium of Rs.40,000/- x 2 = Rs.80,000/-.

¶83

Under such circumstances, this Court is of the considered view that only under the head of loss of consortium, the learned tribunal ought to have awarded Rs.3,20,000/- instead of Rs.40,000/- already awarded. So, the total compensation amount is to be enhanced by Rs.2,80,000/- i.e., the claimants are entitled to the compensation amount of Rs.15,85,520/- The first point for determination is answered accordingly.

¶84

So far as the second point for determination regarding the interest awarded by the learned tribunal is concerned, neither of the parties have brought any evidence in the record as to what was the interest payable by the banks on the date of occurrence or on the date of filing of claim application. Under such circumstances, this Court is of the considered view that there is no justifiable reason to interfere with the award of interest as made by the learned tribunal. The second point for determination is answered accordingly.

¶85

In view of the discussions made above, the impugned judgment and award is modified by directing the defendant No.2- appellant- Insurance Company to pay the sum of Rs.15,85,520/- to the claimants with simple interest thereon @ 6% per annum as awarded by the learned tribunal.

¶86

¶87

M.A.No.204 of 2019
with
M.A.No.30 of 2019

¶88

At this stage, Mr. G. C. Jha, learned counsel for the appellant submits that the entire awarded amount has already been deposited by the appellant- Insurance Company and part of the same has already been disbursed to the claimants and the appellant- Insurance Company is ready and willing to deposit the remaining amount also. In view of such submissions made, the learned tribunal is directed to release the already deposited amount in favour of the claimants.

¶89

The Registrar General of this Court is directed to remit the statutory amount of Rs.25,000/- if any, deposited by the appellant of M.A. No.204 of 2019 to the learned tribunal for payment of the same to the claimants as well.

¶90