Allowed

Aseema Rani Sen v. Ms Cosmos Merchantile Pvt. Ltd. Ic Vivek Kejriwal

Jharkhand HC2 Mar 2023MA/72/2020

Case brief

AI extract

What is this about?

In a motor accident claim appeal, the High Court enhanced compensation awarded to dependants of a deceased employee. The Court increased the deceased's monthly income assessment and calculated total compensation at Rs.17,71,000/-, including conventional head damages.

What did the court decide?

Compensation enhanced to Rs.17,71,000/-; Respondent 2 directed to pay distribution to Appellants within three months.

Aseema Rani Sen Vs Ms Cosmos Merchantile Pvt. Ltd… — Motor Accident Claims | Jharkhand HC (2023)

¶1

¶2

M.A. No. 72 of 2020

¶3

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶4

M.A. No.72 of 2020

¶5

Aseema Rani Sen, aged about 41 years, w/o late Sajal Kumar Das

¶6

Subhechcha Das, aged about 17 years, d/o late Sajal Kumar Das

¶7

Jadu lal Das, aged about 89 years, s/o late Dwarika Mohan Das

¶8

Rekha Rani Das, aged about 79 years, w/o Jadu lal Das (Claimant no.2 is minor represented through his natural guardian, mother- claimant no.1)

¶9

All are resident of A/76, Ambedkar Nagar, Near Sindri Railway Station, Rohraband Check Post, P.O. & P.S.- Sindri, Dist.- Dhanbad, Jharkhand

¶10

.... .... …. Appellants

¶11

Versus

¶12

M/s Cosmos Merchantile Pvt. Ltd., I/c Vivek Kejriwal, S/o late Pradip Kumar Kejriwal, Holding NO.64, ‘O’ Road, Bistupur, P.O. & P.S.Bistupur, Jamshedpur, Dist.- East Singhbhum (Jharkhand)

¶13

M/s IFFCO Tokio General Insurance Company Ltd., through its legal Manager, 42/A, Shakespeare Sarani, 3^rd Floor, Flat No.3A, Express Tower, P.O. & P.S.- Park Street, Kolkata- 700077 (West Bengal)

¶14

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

¶15

------

¶16

For the Appellant : Mr. Rajiv Kumar Karan, Advocate For the Respondents : Mr. Ashutosh Anand, Advocate : Mr. Rohan Mazumdar, Advocate

¶17

P R E S E N T

¶18

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶19

------

¶20

By the Court:-

¶21

Heard the parties.

¶22

This miscellaneous appeal is directed against the judgment and award dated 20.11.2019 passed by the learned District Judge-XII-cum-Motor Accident Claims Tribunal, Dhanbad in Motor Accident Claim Case No.22 of 2017 by which the learned Tribunal under Sections 166 of the Motor Vehicle Act has awarded a compensation of Rs.10,15,000/- to the claimants.

¶23

The brief facts of the case is that on 25.03.2016 at 12:45

¶24

¶25

M.A. No. 72 of 2020

¶26

pm while the deceased Sajal Kumar Das was coming by his cycle, the offending vehicle dashed him; as a result of which he received serious injury and was taken to hospital, where he was declared dead. In connection with the occurrence, Sindri (Goushala) P.S. Case No.29 of 2016 has been registered for the offence punishable under Sections 279/337/338/304A of Indian Penal Code. It is stated that the offending vehicle was insured with the defendant no.2respondent no.2- M/s Iffco Tokio General Insurance Company Ltd. It is stated that the deceased was aged 39 years at the time of his death and was a permanent employee of M/s United Electrical Construction under Fertilizer Corporation of India Limited and was getting monthly salary of Rs.9,000/-.

¶27

In support of their case, the claimants examined five witnesses and proved documents which have been marked Ext. 1 to 5 besides other documents which has been marked X to X/5 for identification.

¶28

So far as the income of the deceased is concerned, P.W.1 in paragraph nos.6 and 7 and P.Ws.2, 3 and 4 in their respective paragraph nos.8 and 9 of their oral testimony which was filed in shape of affidavit have stated that the deceased was an employee of M/s United Electrical Construction under Fertilizer Corporation of India Limited and was earning a salary of Rs.9,000/- but P.W.5 proved the salary certificate of the deceased- Sajal Kumar Das and the

¶29

¶30

M.A. No. 72 of 2020

¶31

same was marked Ext. 1. P.W.5 stated that the income of the deceased was Rs.10,000/-. He proved the salary certificate of the deceased which was marked Ext. 1 as per which the income of the deceased was Rs.10,000/- per month. In his cross-examination the P.W.5 inter alia stated that he can file Income Tax Return to show about the salary given to his employees and that the payment of staff are made on vouchers.

¶32

The Tribunal on the basis of the evidence came to the conclusion that the claimants are the dependants of the deceased. The tribunal also held that the offending vehicle was insured by the opposite party no.2- M/s Iffco Tokio General Insurance Company Ltd. and the deceased- Sajal Kumar Das died on 25.03.2016 due to the accident caused by the offending vehicle. On the basis of the copy of the postmortem report marked Ext. 5, the learned Tribunal assessed the age of the deceased to be on the date of the accident as 39 years. The learned Tribunal considered that as P.W.5 has not filed any Income Tax Return of the employer of the deceased nor the voucher on which payment has been made is filed hence, the income of the deceased as stated by the claimants appears to be not correct; in view of the inconsistencies occurring in the evidence of plaintiff’s witness and not filing of necessary documents and assessed the income of the deceased as Rs.5000/- per month and arrived at the said compensation by applying the multiplier

M.A. No. 72 of 2020

Mr. Rajiv Kumar Karan, learned counsel for the appellants submits that in view of the overwhelming evidence in the record that the income of the deceased is Rs.9,000/- as pleaded and proved by P.Ws.1 to 4 and the P.W.5 having proved the salary certificate which show that the deceased was earning Rs.10,000/- per month which has been marked Ext. 1 without objection wherein inter alia , it has been mentioned that the deceased was working as an electrician since 10 years; the learned Tribunal has arbitrarily assessed the income of the deceased to be Rs.5,000/- per month. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Rajwati @ Rajjo & Ors. vs. United India Insurance Company Ltd. & Ors. reported in 2023 (1) JBCJ 66 [SC] paragraph no.20 of which reads as

¶38

under :-

¶39

“20. In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit 19) and pay slip (Exhibit 20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. The said documents are conclusive proof of the income of the deceased and were also corroborated by the statements of the deceased’s wife (Appellant No. 1 herein) and his co-workers. As such, the High Court was not justified in assessing the income of the deceased at Rs.4,836/per month on the basis of minimum wages fixed by the State at the relevant time. Resultantly, we affirm the findings of the Learned Tribunal so far as they relate to assessing the deceased’s income at Rs.11,225/- per month on the basis of aforementioned two documents. Annual income of the deceased, therefore, amounts to, Rs.11,225/- x 12 = Rs.1,34,700/-..” (Emphasis supplied)

¶40

¶41

M.A. No. 72 of 2020

¶42

It is submitted by the learned counsel for the appellant that non-consideration of the Ext. 1 by the learned Tribunal merely on the ground that the Income Tax Return of a witness was not produced by the claimants or the vouchers have not been produced by the claimants even though there is absolutely no suggestion given by the witness concerned that the witness did not have Income Tax Return or the voucher; is arbitrary. It is then submitted that the learned Tribunal ought to have assessed the income of the deceased to be Rs.10,000/-hence the amount of compensation be enhanced by way of modification of the impugned judgment and award.

¶43

Learned counsel for the respondent no.1 does not contest the contention of the learned counsel for the appellants.

¶44

¶45

Mr. Ashutosh Anand, learned counsel for the respondent no.2 on the other hand defended the impugned judgment and award passed by the learned Tribunal. It is next submitted by Mr. Anand that since there is contradictions between the income of the deceased as mentioned in the claim application and the oral testimony of four witnesses examined by the claimants themselves who have all stated that the deceased was earning Rs.9,000/- per month and in the testimony of P.W.5 as well as Ext.1, where the monthly income of the deceased has been stated to be ₹ 10,000/–. Hence, the learned Tribunal has rightly disbelieved

¶46

¶47

M.A. No. 72 of 2020

¶48

the Ext.1. More so, because the claimants did not file the Income Tax Return of P.W.5 or the voucher by which the P.W.5 used to pay salary to the deceased. Hence, it is submitted that this appeal being without any merit be dismissed.

¶49

Having heard the submissions made at the Bar and after going through the materials in the record, the sole point for determination which crop up in this appeal is:-

¶50

“Whether the amount of compensation awarded by the learned Tribunal is to be enhanced?”

¶51

Now coming to the facts of the case, the learned Tribunal has not assigned any reason as to on what basis it has assessed the income of the deceased to be Rs.5,000/-. True it is that, there is discrepancy in the income as deposed by the P.W.5 and the other four witnesses being P.Ws.1 to 4 as well as the pleadings of the claimants made in the claim application but the fact remains unchallenged as has been categorically mentioned in Ext.1 that the deceased was working as an electrician for a period of more than 10 years and he was the permanent employee of United Electrical Construction; who is a contractor engaged by the Fertilizer Corporation of India on long term basis. Under such circumstances, this Court is of the considered view that the assessment of the income of Rs.5,000/- by the learned Tribunal is on the lower side and erroneous and this Court assesses the monthly income of the deceased as Rs.9,000/per month as claimed in the claim application as well as in

¶52

¶53

M.A. No. 72 of 2020

¶54

the testimony of P.Ws. 1 to 4.

¶55

As the age of the deceased being 39 years is not in dispute, the multiplier applicable is 15 and adding 40% towards future prospects, the monthly income of the deceased to be considered for compensation comes out to Rs.12,600/- per month i.e. Rs.1,51,200/- per year. Deducting 1/4^th towards personal expenses of the deceased, the amount comes out to Rs.1,13,400/-. Applying the multiplier 15, the amount comes out Rs.17,01,000/-. Adding Rs.70,000/towards the conventional head, the amount comes out to Rs.17,71,000/-.

¶56

So, this Court is of the considered view that the claimants are entitled to total compensation of Rs.17,71,000/out of which Rs.2,63,000/- each to be paid to the appellant nos.3 and 4 respectively, Rs. 5,00,000/- be paid to the appellant no.2 and Rs.7,45,000/- be paid to the appellant no.1 by the respondent no.2-insurance company with interest at the rate as awarded by the learned Tribunal less the amount already paid by the respondent no.2- insurance company, if any.

¶57

The respondent no.2-insurance company is directed to pay the remaining amount within three months from the date of this judgment.

¶58

It is made clear that right to recover which has been given to the respondent no.2-insurance company by the learned Tribunal shall remain intact.

¶59

8 M.A. No. 72 of 2020

¶60

Accordingly, the impugned judgment and decree is modified to the aforesaid extent only.

¶61

In the result, this appeal is allowed on contest but under the circumstances without any costs.

¶62

Let a copy of this Judgment along with the Lower Court Records be sent back to the learned court below forthwith.

¶63

(Anil Kumar Choudhary, J . )

¶64

High Court of Jharkhand, Ranchi Dated the 2^nd March, 2023 AFR/ Sonu-Gunjan/-

Aseema Rani Sen v. Ms Cosmos Merchantile Pvt. Ltd. Ic Vivek Kejriwal

Case brief

What is this about?

What did the court decide?

Aseema Rani Sen v. Ms Cosmos Merchantile Pvt. Ltd. Ic Vivek Kejriwal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Thanu Gope Vs Baleshwar Yadav

Smt Chintamani Devi Vs State of Jharkhand through the Deputy Commissioner

Chaya Singh Vs Sumitra Devi

Ram Prit Ram And Ors. Vs Kaushal Kishore Ram And Ors.

Rezan Topno Vs Sudhar Barjo

Sachidanand Dhar Dubey And Ors. Vs Vishun Deo Ram And Ors.