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1 M.A. No. 210 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.210 of 2013
------ 1. Gulapi Pramanik W/o late Subodh Chandra Pramnik 2. Chanparani Pramanik, D/o late Subodh Chandra Pramnik 3. Ajay Kumar Pramanik, S/o late Subodh Chandra Pramnik 4. Kalipada Pramanik, S/o late Subodh Chandra Pramnik 5. All are residents of village- Jorishya, P.O.-Charinda, P.S.-Ghatshila, District- Singhbhum East
.... .... …. Appellants
Versus 1. M/s Economic Carriers Hemsing Bagan, Kartarsingh Building, New Kalimati Road, P.O. & P.S.- Sakchi, Jamshedpur, District- East Singhbhum 2. The New India Assurance Company Ltd. Divisional Office, Kamani Centre, P.O. & P.S.- Bistupur, Jamshepdpur, Distt. East Singhbhum.
.... .... .... Respondents
------ For the Appellant : Ms. Swati Shalini, Advocate
For the Respondents : Mr. Alok Lal, Advocate
P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------
By the Court:- 1. Heard the parties. 2. This appeal has been preferred against the judgment and award dated 15.03.2013 passed by the District Judge-I-cum-Motor Vehicle Accident Claims Tribunal, East Singhbhum Jamshedpur in Compensation Case No.158 of 2006 by which the learned Tribunal in an application filed under section 166 of Motor Vehicles Act, 1988, directed the opposite party no.2-Insurance Company to pay compensation amount of Rs.10,12,000/- to the appellants-claimants within three months from the date of the judgment failing which, the opposite party no.2 was directed to pay simple interest at the rate of 6% from filing of the application. 3. The brief facts of the case is that the deceased Subodh Chandra
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Pramanik aged about 48 years was working in UCIL Ltd, Jadugora as a helper and he died in a motor vehicle accident on 25.07.2006 being hit by the offending trailer. 4. It is submitted by Ms. Swati Shalini, learned counsel for the appellants that the appellants have agitated several grounds in the appeal but the appellants confine their arguments only for enhancing the compensation amount, and do not press the other grounds taken in the appeal memo. It is next submitted by Ms. Swati Shalini, learned counsel for the appellants that as the gross salary of the deceased was Rs.17,503/- in the month of July, 2006 as per Ext. 4, which is the salary slip, learned Tribunal erred by assessing the income of the deceased as Rs.9,500/-. Relying upon the judgment of Hon’ble Supreme Court of India in the case Yerramma & Ors. vs. G. Krishnamurthy & Anr. reported in (2014) 15 SCC 65, paragraph no.15 of which reads as under :- “15. The gross salary drawn by the deceased at the time of his death as per salary slip produced on record was Rs 26,000 per month and after deducting 10% towards income tax, net income comes to Rs 23,400 per month. Thus, the annual income of the deceased would be Rs 2,80,800. Deducting ¼th of this amount towards his personal expenses by applying the principle as laid down by this Court in Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , the balance amount comes to Rs 2,10,600 [Rs 2,80,800 - Rs 70,200 (¼th of Rs 2,80,800)]. Therefore, the loss of dependency of the appellants by applying the appropriate multiplier of 11, according to the rules laid down by this Court in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] comes to Rs 23,16,600 (Rs 2,10,600 × 11).”
It is further submitted by Ms. Shalini that the monthly income of the deceased should have been assessed as Rs.17,500/- less the 10% towards the income tax. It is next submitted by Ms. Shalini that the
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learned Tribunal had awarded a meager amount of Rs.12,000/- under the conventional head instead of awarding Rs.70,000/- as per the principle of law settled in the case of National Insurance Company Limited Vs. Pranay Sethi & Others, reported in, (2017) 16 SCC 680. It is then submitted by Ms. Shalini that, keeping in view the fact that there were four dependents of the deceased at the time of his death, in view of paragraph no.30 of Sarla Verma (SMT) And Others v. Delhi Transport Corporation And Another reported in (2009) 6 SCC 121, the learned Tribunal ought to have deducted 1/4th of the net income of the deceased towards his personal expenses. It is next submitted by Ms. Shalini that keeping in view that the deceased was aged about 48 years and was under a permanent employment under a public sector undertaking, 30% of the income should have been added towards future prospects in view of principle of law settled in the case of National Insurance Company Limited Vs. Pranay Sethi & Others (supra). Hence, it submitted that the amount of compensation be enhanced accordingly. 6. Mr. Alok Lal, learned counsel for the respondent-insurance company on the other hand defended the impugned judgment and award passed by the learned Tribunal and submitted that as the claimants have not explained each of the individual entries which totaled up to the gross salary by examining any official of UCIL, the learned Tribunal has rightly assessed the income to be Rs.9,500/-. It is next submitted by Mr. Alok Lal, learned counsel for the respondent-insurance company that though the insurance company has neither filed an appeal nor any cross-objection yet in exercise of power under Order 41 Rule 33 of the Code of Civil Procedure, the respondent-insurance company be given the right to recover the compensation amount from the owner of
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the vehicle as if the issue no.v has not been properly answered by the learned Tribunal. Hence, it is submitted that the impugned award do not warrant any interference so far as the quantum of compensation awarded to the claimants and this appeal being without any merit be dismissed. 7. Having heard the rival submissions made at the bar and after going through the materials in the record, as the respondent-insurance company has not filed any appeal nor any cross-objection, this Court is not inclined to enter into the finding of the learned Tribunal in respect of issue no.v as the same is not the subject matter of this appeal and further as this appeal has been filed by the claimants and the only ground agitated is that enhancement of the compensation. It is not relevant so far as the claimants-appellants are concerned, as to whether the respondent insurance company is given the right to recover the same from the owner and it cannot be said that determination of issue no.v is germane to determine the issue as to whether the quantum of compensation awarded by the tribunal to the claimants be enhanced or not. Moreover it is a settled principle of law that the object sought to be achieved by conferment of power under order XLI, rule-33 of the Code of Civil Procedure, 1908 of passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court; on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. Thus the overriding consideration is achieving the ends of justice but also it is to be kept in mind that wider the power, higher the need for caution and care
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while exercising the power. So usually the power under Order XLI, Rule 33 of the Code of Civil Procedure, 1908 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow; as has been held by the honourable Supreme Court of India in the case of Banarsi v. Ram Phal, (2003) 9 SCC 606, paragraph-15 of which reads as under: 15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former
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relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41. (Emphasis Supplied)
Hence, the sole point for determination which crop up in this appeal for consideration is: (i) Whether the amount awarded to the claimants be enhanced?
So are as the sole point of determination is concerned, this Court is of the considered view that undisputedly, the salary slip of the deceased of the previous month of his death has been filed and has been marked Exhibit. The entire contents of the said Exhibit are to be read in evidence. The individual heads under which the incomes of the deceased in the relevant month that is July, 2006 has categorically been mentioned in that salary slip marked Ext. 4. Under such circumstances, in view of the settled principle of law that the gross salary of the deceased less the income tax is to be considered as the net income of the deceased as already mentioned in the foregoing paragraphs of this judgment, this Court is of the considered view that the learned Tribunal erred by assessing the income of the deceased as Rs.9,500/- per month and in view of the aforesaid evidence in the record, this Court assesses the monthly income of the deceased as Rs.17,500/- that is Rs.2,10,000/- per annum. Now adding 30% towards future prospects, in view of the settled principle of law in the case of National Insurance Company Limited Vs. Pranay Sethi & Others (supra), the amount being Rs.2,10,000 plus Rs.63,000/- which would be Rs.2,73,000/-. Now deducting 10% towards income tax, the income being Rs.2,73,000/- minus Rs.27,300/- which comes to Rs.2,45,700/-. Keeping in view the undisputed fact that the deceased was having four dependents, in view of the settled principle of law in the case of Sarla Verma (SMT) And
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Others v. Delhi Transport Corporation And Another (supra), the learned Tribunal erred by deducting 1/3rd of the income towards personal expenses of the deceased. This Court is of the considered view that the learned Tribunal ought to have deducted 1/4th of the income of the deceased towards his personal expenses and thus deducting 1/4th of the amount towards personal expenses of the deceased in view of four dependents, the annual contribution to the family being Rs.2,45,700/- minus Rs.61,425/- which would come to Rs.1,84,275/-. Now multiplying the aforesaid amount with multiplier 13, in view of the settled principle of law in paragraph no.41 of Sarla Verma (SMT) And Others v. Delhi Transport Corporation And Another (supra), keeping in view that the deceased was aged 48 years, being Rs.1,84,275/- x 13, the total amount comes to Rs.23,95,575/- and adding Rs.70,000/-under conventional head, the total amount comes to Rs.24,65,575/-. So this Court is of the considered view that the claimants are entitled to total compensation amount of Rs.24,65,575/- with simple interest there on at the rate of 6% per annum. The sole point of determination is answered accordingly. 9. At this, Mr. Alok Lal, learned counsel for the Insurance Company submits that the insurance company has already paid Rs.10,12,000/- with simple interest at the rate of 6% per annum, which is not disputed by the learned counsel for the appellants. 10. In view of the discussions made above, the respondent no.2 is directed to pay the remaining amount of Rs.14,53,575/- with simple interest thereon at the rate of 6% per annum from the date of this Judgment to the appellants-claimants within three months from the date of this Judgment. 11. The impugned judgment and award is modified to the
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aforesaid extent. 12. Let a copy of this Judgment along with Lower Court Records be sent back to the concerned Tribunal forthwith. 13. In the result, this appeal is disposed of with the aforesaid modification.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 22nd June, 2022 AFR/ Sonu-Gunjan/-