The Commissioner of Income Tax -VI vs. Madrasi Chakkar Beedi Factory Pvt Ltd.,

IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction) M.A. No. 387 of 2013 ----- Divisional Manager, National Insurance Co. Ltd., Ranchi …… Appellant

Versus 1. Chinta Devi, W/o Late Mosafir Prasad Yadav 2. Deepak Kumar Sinha, S/o D.L. Prasad ……Respondents ----- CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) ----- For the Appellant

: Mr. Ganesh C. Jha, Advocate For the Respondent no.1 : Mr. Sanjay Kr. Pandey, Advocate …... 11/Dated: 08/01/2021. 1. Heard, learned counsel for the parties. 2. Appellant- National Insurance Co. Ltd. has preferred this appeal against judgment/award dated 30.05.2013 passed by learned District & AddI. Sessions Judge-II cum Motor Vehicle Accident Claims Tribunal, Koderma in Claim Case No.37 of 2010 whereby the claimant has been awarded excess compensation by computing wrong calculation by the learned Tribunal. 3. Learned counsel for the appellant- Insurance Company has submitted that without deducting the income tax component of the salary of the deceased, learned Tribunal has calculated the compensation and wrongly deducted towards the personal and living expenses of the deceased without considering the actual number of dependents upon the deceased in view of the judgment passed by the Hon'ble Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 30. 4. Learned counsel for the appellant- Insurance Company has further submitted that learned Tribunal has wrongly calculated the awarded amount to the tune of Rs.48,70,659/- along with interest @ 6% per annum from the date of filing of the claim application till the date of its realization within two months, failing which the claimant is entitled to recover the awarded amount through process of court with a penal interest @ 9% per annum from the date of filing of claim application. 5. Learned counsel for the appellant- Insurance Company, Mr. G.C. Jha has submitted that provision of the penal interest is not available in the Act, as such, learned Tribunal has wrongly computed the compensation amount. 6. Learned counsel for the respondent no.1, Mr. Sanjay Kumar Pandey has submitted that though no appeal has been preferred by the claimant for enhancement of the award but the claim application cannot be assailed on the ground of quantum of compensation, as such, this Court may dismissed the appeal preferred by the Insurance Company.

-2- 7. Learned counsel for the appellant in support of his submission referred the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 para 8 and has submitted that, this Court may consider the fair and just compensation. The judgment of the Hon’ble Apex Court in the case of Ranjana Prakash (supra) para 8 is profitably quoted hereunder:- “8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.” 8. Learned counsel, Mr. G.C. Jha for the appellant- Insurance Company has also assailed the impugned award on the ground of contributory negligence. The learned Tribunal has not considered the same as FIR and Charge-sheet has already been filed against the offending vehicle (truck) bearing registration no. JH02N-2607, as such, the same is being assailed herein before this Hon'ble Court. 9. The admitted case of the claimant is as follows:- That deceased- Mosafir Prasad Yadav was riding his motorcycle wearing halmet and was going from Koderma to Bishunpur on his motorcycle on NH 31 when the truck bearing registration no. JH02N-2607 which was coming from Rajauli collided with the motorcycle near Jamsoti Nala in the District of Koderma on 19.06.2010 at about 2:30 P.M. and deceased- Mosafir Prasad Yadav died on the spot. It appears that deceased- Mosafir Prasad Yadav was a teacher in Utkarmit Middle School, Block- Pusahan, Jainagar, District- Koderma and was getting monthly salary of Rs.26,661/-. The age of the deceased has been considered by the learned Tribunal on the basis of postmortem report as 45 years and deceased left behind his dependents as wife (1) Chinta Devi and four sons namely, (2) Anuj Kumar, (3) Randhir Kumar, (4) Manish Kumar and (5)Ashish Ranjan and two unmarried daughters namely, (6) Arti Kumari and (7) Neha Kumari, as such, family of the deceased comprises of seven dependents. 10. Since the contributory negligence has been assailed before this Court, but no evidence has been brought on record by the appellant, as such, the finding

-3- recorded by the learned Tribunal is affirmed by this Court as the deceased was travelling on his motorcycle wearing helmet and FIR and charge-sheet have been filed only against the offending truck bearing registration no. JH02N-2607. 11. The monthly income of the deceased from service as a teacher in Utkarmit Middle School, Block- Pusahan, Jainagar, District- Koderma to the tune of Rs.26,661/- is multiplied by 12, which comes to Rs.3,19,932/- per annum, but in view of the judgment passed by the Hon’ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 para 59.4 component of tax ought to have been deducted and it has been deducted herein which comes to the tune of Rs.16,000/-, thus the income remains as Rs. 3,03,932/-. Because of the size of the family and the number of the dependents to be seven, the personal and individual living expenses of the deceased is deducted as 1/5th in view of the judgment of Sarla Verma (Supra). Thus, the income comes to Rs.2,43,146/- for consideration of computation of compensation. The deceased died at the age of 45 years and as per the judgment passed by the Hon'ble Apex Court in the case of Sarla Verma (Supra) at para 42, multiplier of 14 is applicable for the deceased aged between 41-45 years, as such, this Court considers it to be 14. Thus, total amount comes to Rs.2,43,146/- x 14 = Rs.34,04,014/-. 12. Further since the deceased had a permanent job and he falls in the category of 40 to 50 years, in view of the judgment passed by the Apex Court in the Case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 at para 59.3, future prospect of the deceased should be 30%, meaning thereby, Rs.34,04,044/- + Rs.34, 04,044/- x 30% [=Rs.10,21,213/-] = Rs.44,25,257/- + Rs.70,000/- under the conventional head in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) at Para 59.8 (for the loss of Estate Rs.15,000/-, for loss of consortium Rs.40,000/- and for funeral expenses Rs.15,000/- is to be given), then total compensation comes to Rs.44,95,257/- 13. As such, compensation of Rs.44,95,257/- along with interest @ 7.5% in view of Section 171 MV Act and in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, reported in 2008 (4) JCR 79 SC, which shall be paid to the claimants along with interest @ 7.5% from the date of filing of the claim application till the date of realization within a reasonable period. The amount already paid under Section 140 MV Act, if any, shall be deducted from the aforesaid amount.

-4- 14. The new calculation chart would be as follows :- Income Rs.26,661/- per month Annual Income Rs.26,661/- X 12 = Rs.3,19,932/- minus Rs.16,000/- (as Tax component) = Rs.3,03,932/- 1/5th deduction towards personal and living expenses Rs.3,03,932/- minus Rs.3,03,932/- x 1/5th = Rs.2,43,146/- Multiplier as 14 Rs.3,03,932/- x 14 = Rs.34,04,044/- Future Prospect @ 30% Rs.34,04,044/- + Rs.34,04,044/- x 30% [Rs.10,21,213/-] = Rs.44,25,257/- Conventional Head Rs.70,000/- Total

Compensation Amount Rs.44,25,257/- + Rs.70,000/- = Rs.44,95,257/-. 15. Accordingly, the impugned judgment of award is set aside. 16. The instant Misc. Appeal stands allowed. 17. The statutory amount deposited for preferring the appeal to the tune of Rs.25,000/- shall be remitted to the Court below by the learned Registrar General of this Court within a period of four weeks. 18. The entire amount shall be disbursed in the account of wife (Chinta Devi) of the deceased and she will file an affidavit on behalf of her minor children as well as she will also produce the affidavit on behalf of their major children that the entire amount is being paid to wife (Chinta Devi) of the deceased for all the dependents which shall be apportioned amongst them. 19. It has been submitted that out of compensation of Rs.44,95,257/-, the Insurance Company in compliance of order dated 13.01.2017 passed by this Court has deposited Rs.20,00,000/- before the learned Tribunal, as such, the balance amount shall be paid to the claimants within a reasonable period, as the accident is of dated 19.06.2010.

(Kailash Prasad Deo, J.) sandeep/R.S/