The Commissioner of Income Tax IV, vs. Parnika Constructions P. Ltd.,

IN THE HIGH COURT OF JHARKHAND AT RANCHI [Civil Miscellaneous Appellate Jurisdiction] M.A. No. 73 of 2014 1. Most. Mira Devi 2. Ranu Kumari 3. Gopal Oraon .... .. ... Appellants Versus 1.Krishna Munda 2. Mohan Choudhary 3. New India Insurance Company Ltd. .. ... ... Respondents ........... CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) ......... For the Appellants : Mr. Prabhat Kr. Sinha, Advocate. For the Resp. no.3 : Mr. Alok Lal, Advocate For the Resp. no.2 : Mr. Sudhansu Kumar Deo, Advocate .......... 09/12.02.2021. I.A. No.602 of 2021 Learned counsel for the appellants has further submitted that Interlocutory Application for condonation of delay has been filed with memo of appeal in the year, 2014, but the same remains pending before this Court, which was instituted as I.A. No.602 of 2021. Learned counsel for the appellants has further submitted that there is delay of 66 days in preferring the appeal and for condonation of the same, I.A. No.602 of 2021 has been preferred. The reason for delay has been explained at paras 5, 6, 7 and 8 of the Interlocutory Application. Learned counsel for the Insurance Company, Mr. Alok Lal has submitted that impugned award passed by the learned Tribunal has already been indemnified to the claimants and there is delay of 66 days in preferring the appeal, as such, this Court should not condone the delay and this Court may also consider that such delay has occurred because of non-filing of the Interlocutory Application, which has been filed in the year, 2021. From the record, it appears that I.A. has already been filed in the year, 2014 itself at the time of the filing of the appeal but the number has been allotted by the Registry of the Court in the year, 2021. After hearing learned counsel for the parties, looking into the facts and circumstances of the case, the delay of 66 days in preferring the appeal is condoned as no counter affidavit has been filed by the Insurance Company and the reason assigned by the appellants is acceptable to the court. Accordingly I.A. No. 602 of 2021 is allowed. M.A. No. 73 of 2014 1. Heard, learned counsel for the parties.

-2- 2. The instant Miscellaneous Appeal has been preferred by the appellants/claimants, namely, 1. Most. Mira Devi, 2. Ranu Kumari (minor) and 3. Gopal Oraon (minor) for enhancement of the award dated 10.09.2013 passed by learned 5th District Judge-cum- Presiding Officer, Motor Vehicle Accident Claims Tribunal, Hazaribagh in Claim Case No. 58 of 2005, whereby the claimants have been awarded compensation to the tune of Rs.1,87,000/- along with interest @ 6% per annum with effect from 10.09.2009 payable by the New India Insurance Co. Ltd. Amount of Rs.50,000/-, if already paid by the Insurance Company shall be deducted. If the Insurance Company shall not indemnify the award within one month shall be liable to pay penal interest @ 9% till realization. 3. The 50% of awarded amount shall be paid to the wife and 50% of awarded amount to both the minors/claimants, namely, Ranu Kumari and Gopal Oraon, which shall be deposited in monthly income scheme (MIS) in a nationalized bank or at post-office. 4. Learned counsel for the appellants, Mr. Prabhat Kumar Sinha has submitted that deceased (Ajodhya Oraon @ Budheshwar Oraon), husband of Mira Devi and father of both minors, Ranu Kumari and Gopal Oraon died in an accident on 03.01.2003 by a Dumper bearing registration No.JH-02B-9571 at the age of 26 years. As per the case of the claimants, the deceased was engaged in local hotel business and he was earning a sum of Rs.5,000/- per month, but the learned Tribunal has wrongly considered the income of the deceased to be Rs.15,000/- per annum i.e. Rs.1250/- per month. 5. Learned counsel for the appellants, Mr. Prabhat Kumar Sinha has fairly submitted that though the deceased died at the age of 26 years, but the learned Tribunal has wrongly used multiplier of 18 instead of 17 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 42. 6. Learned counsel for the appellants has further submitted that deduction towards personal and living expenses as 1/3rd has rightly been granted by the learned Tribunal 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. 7. Learned counsel for the appellants has further submitted that neither future prospect nor the medical expenses has not been granted. The future prospect to the tune of 40% has not been granted in view of the judgment passed by Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017)

-3- 16 SCC 680 at para 59.4, as deceased died below the age of 40 years. 8. Learned counsel for the appellants has further submitted that under the conventional head less amount has been paid i.e. Rs.5,000/- for loss of consortium and Rs.2,000/- for funeral expenses which ought to have been Rs.70,000/- (loss of Estate Rs.15,000/-, loss of consortium Rs.40,000/- and funeral expenses Rs.15,000/-) in view of judgment of Pranay Sethi (supra) at para 59.8. 9. Learned counsel for the appellants, Mr. Prabhat Kumar Sinha has submitted that deceased (Ajodhya Oraon @ Budheshwar Oraon) sustained injury on 03.01.2003 at 05.30 P.M. and he was treated at Central Coalfields Limited hospital at Nai Saria, Hazaribagh for one day and ultimately succumbed to the injury on 04.01.2004 at 11:00 A.M. 10. Learned counsel for the appellants has further submitted that no medical expense has been paid though the claimants has asserted that a sum of Rs.3 lacs has been spent on treatment upon the deceased. 11. Learned counsel for the appellants has further submitted that no such pleading has been made in the claim application nor any voucher/medical bill has been Exhibited, but the claimant, C.W.-1 (Most. Mira Devi) has categorically stated as per para 6 of the impugned judgment that she had spent Rs.3,00,000/- (Rupees Three Lac) on the medical treatment of her husband. 12. As such, this Court considering the ratio laid down by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 may consider the same in a benevolent legislation for just and fair compensation on this count of medical expenses. 13. Learned counsel for the appellants has placed reliance upon the judgment passed by the Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 19, which is profitably quoted hereunder:- “...........The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added.” 14. Learned counsel for the appellants has also placed reliance upon the judgment passed by the Apex Court in the case of Bangalore Metropolitan Transport Corporation vs. Sarojamma & another, reported in (2008) 5 SCC 142 at paras 6 to 9, which are profitably quoted hereunder:- “6. Section 163-A of the Act was inserted by Act 54 of 1994 with effect from 14.11.1994. For invoking the said provision, it is not necessary for a claimant to establish any act of negligence on the part of the driver. It is not necessary even to plead that the death had occurred owing to any wrongful act or neglect or

-4- default of owner of the vehicle. 7. Quantum of compensation is to be determined in terms of Schedule II appended thereto. In terms thereof, apart from the amount of compensation as provided for therein only funeral expenses, loss of consortium (if beneficiary is the spouse), loss of estate, medical expenses, would be payable. 8. As Schedule II provides for a structured formula, ordinarily, the same has to be adhered to. The structured formula itself stipulates reduction of income of the deceased by one-third in consideration of the expenses which he would have incurred towards maintaining himslef, had he been alive. 9. Whereas in determining an application for grant of compensation under Section 166 of the Act, the Tribunal may be entitled to find out actual loss of damages suffered by the claimants, the formula having not envisaged such a contingency, we are of the opinion that ordinarily one-third should be deducted from the income of the deceased and not the half thereof. For determining the amount of compensation, the most relevant factor, therefore, is the income of the deceased. He was a tutor. He was admitted in the Army Teachers Training Institute. He had the requisite potential of becoming a teacher. His income, thus, having been estimated at Rs.3000 p.m. cannot be said to be on a very high side.”

50,000.00 3,00,000.00 (iv) Pain and suffering and mental agony 3,00,000.00 (v) Cost of attendant from the date of accident till he remains alive 2,00,000.00

Total 8,08,052.00 19,91,702.00 24. In view of the enhancement made by us, we do not consider it necessary to modify the rate of interest awarded by the High Court i.e. 6% from the date of the application i.e. 24.08.1999 to the date of payment which will also be payable on the enhanced amount of compensation.”

-5- 17. Learned counsel for the appellants has further relied upon the judgment passed by the Apex Court in the case of Kanhsingh and Another vs. Tukaram and Others, reported in (2015) 11 SCC 343 at para 11, which is profitably quoted hereunder:- “11. Further, we award Rs.5,00,190 towards medical expenses incurred towards medical treatment.” 18. Learned counsel for the appellants has also placed reliance upon the judgment passed by the Apex Court in the case of Asha Verman and Others. vs. Maharaj Singh and Others, reported in (2015) 11 SCC 389 at para 16, which is profitably quoted hereunder:- “16. Further, Rs.1,40,000 was spent by the appellant wife for medical purposes of her husband (deceased) during the period of treatment before his death. Accordingly, we award an amount of Rs.1,40,000 towards medical expenses incurred for the treatment of the deceased.” 19. Learned counsel for the appellants has also placed reliance upon the judgment passed by the Apex Court in the case of Reliance General Insurance Company Limited vs. Shalu Sharma & Others, reported in (2018) 2 SCC 753 at para 5, which is profitably quoted hereunder:- “5. The Tribunal has held that the annual income of the deceased (on the basis of the income tax returns for 2010-2011, 2011-2012 and 2012-2013) would be Rs.1,81,500. Adding a component of 25% for future prospects, the income would stand at Rs.2,26,875. Deducting an amount of one-fourth towards personal expenses, the loss of dependency per annum works out to Rs.1,70,156. Applying a multiplier of 14, the total loss of dependency would work out to Rs.23,82,187. The Tribunal has awarded a sum of Rs.3,14,335 towards medical expenses. An addition of Rs.70,000 would be required to be made in terms of the decision in Pranay Sethi on account of the conventional heads of loss of estate (Rs.15,000), loss of consortium (Rs.40,000) and funeral expenses (Rs.15,000). Hence, the total compensation is quantified at Rs.27,66,522 on which the claimants would be entitled to interest @ 9% p.a. from the date of the filing of the claim petition. The apportionment shall be carried out in terms of the award of the Tribunal. We order accordingly.” 20. Learned counsel for the appellants has also placed reliance upon the judgment passed by the Apex Court in the case of Savita and Others. vs. Divisional Manager, reported in (2018) 12 SCC 24 at para 7, which is profitably quoted hereunder:- “7. The Tribunal, however, has granted additional amount towards loss of love and affection, loss of estate, loss of consortium. In view of the recent decision of the Constitution Bench of this Court in National Insurance Co. Ltd. v. Pranay Sethi, the appellants would be entitled for an addition of 40% of the established income of the deceased towards future prospects. The appellants will be also entitled to loss of estate, loss of consortium and funeral expenses at Rs.15,000 (Rupees fifteen thousand), Rs.40,000 (Rupees forty thousand) and Rs.15,000 (Rupees fifteen thousand) respectively. The appellants would also be entitled to an amount towards medical expenses determined by the Tribunal. We are of the considered opinion that to meet the ends of justice it would be appropriate to grant additional aggregate amount of Rs.6,00,000 (Rupees six lakhs) to the

-6- appellants. That will satisfy all the claims put forth by the appellants in all respects.” 21. Learned counsel for the appellants has further submitted that though in some of the cases, Apex Court has considered the medical expenses as just and fair compensation, even without having such pleading in the claim application, but in the present case though there is no pleading in the claim application, but there is evidence of the claimant, C.W.1 (Most. Mira Devi) at para 6 of the impugned judgment about medical expenses, as such, this Court may consider the same. Learned counsel for the appellants has further submitted that interest @ 7.5% per annum ought to have been awarded from the date of filing of the claim application in view of Section 171 MV Act coupled with the judgment passed Hon’ble Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, reported in 2008 (4) JCR 79 SC, which the learned Tribunal has awarded interest @ 6% from 10.09.2009, as such, this Court may enhance the compensation. 22. Learned counsel for the appellants has further submitted that notice was issued to the Insurance Company on 05.02.2018, as such, this Court may grant interest on the enhanced amount @ 7.5% from the date of filing of the claim application. 23. Learned counsel for the Insurance Company, Mr. Alok Lal has submitted that since the Insurance Company was noticed on 05.02.2018, as such, if interest be awarded it may be from the date when the notice has been issued to the Insurance Company. 24. Learned counsel for the Insurance Company, Mr. Alok Lal has further submitted that from perusal of the impugned award, it appears that CW-2 (Umesh Oraon) is an eye witness to the occurrence and has given a contradictory evidence with regard to income of the deceased to be Rs.3,000/- contrary to the evidence of the claimants, as such, this Court may consider the income of the deceased to be Rs.3,000/- as no other evidence has been brought on record with regard to the same. 25. Learned counsel for the respondent, Mr. Alok Lal has placed reliance on the sub-clause (iv) i.e. medical expenses- actual expense incurred before the death supported by the voucher/bills, but not exceeding Rs.15,000/-, mentioned under clause 3 i.e. General damages (in case of death) appended with the second Schedule of the Act, regarding the question of medical expenses. 26. Learned counsel for the respondents has further submitted that since there is no pleading, as such, this Court may not allow any compensation on oral submission in absence of any documentary evidence as contemplated under Schedule-II of the Act.

-7- 27. Learned counsel for the respondents-owner and driver of the offending vehicle, Mr. Sudhansu Kumar Deo has submitted that Dumper bearing registration No.JH-02B-9571 was insured before the New India Insurance Co. Ltd. vide policy No.540988/31/03/00928 for the period which covers the date of accident, as such, the Insurance Company may be directed to indemnify the same. 28. It appears that deceased (Ajodhya Oraon @ Budheshwar Oraon) died in a motor vehicle accident caused by Dumper bearing registration No.JH-02B-9571 insured before the New India Insurance Co. Ltd. vide policy No.540988/31/03/00928 for the period in which the accident took place. 29. From the rival contentions of the parties, it appears that the income of the deceased has been claimed by the appellants to be Rs.5,000/- per month from the hotel business and to that effect the evidence of CW-1 (Most. Mira Devi) whereby she has stated that income of her husband was Rs.5,000/- per month from the local hotel business, but no documentary evidence has been brought on record. She has further claimed that Rs.3 lacs has been spent on medical treatment of her husband. 30. From the evidence of CW-2 (Umesh Oraon), it appears that he seems to be eye witness to the occurrence, but his evidence with regard to income is not reliable, who said that deceased (Ajodhya Oraon @ Budheshwar Oraon) used to run a small hotel in the locality having income of Rs.3000/- per month. After going through the materials available on record, for fair and just compensation, this Court rely upon the judgment passed by the Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC, where the income of carpenter has been considered to be Rs.5000/- per month, as such, it would not be proper for this Court to consider the income of the deceased less than Rs.5000/- per month when deceased is himself owner of hotel and his wife has claimed that income of the deceased was Rs.5000/- per month. Umesh Oraon is not the person, who can say about the income of the deceased rather he is eye witness to the occurrence, but not a better witness than the wife of the deceased so far income is considered, as such, following the ratio laid down by the Apex Court in the case of Chameli Devi (Supra), this Court considers the income of the deceased to be Rs.5000/-. 31. Considering the family to be three deduction towards personal and living expenses should be 1/3rd in view of the judgment passed by the Apex Court in the case of Sarla Verma (supra) at para 30 then income comes to Rs.60,000 – Rs.60,000/- x 1/3rd (Rs.20,0000/-) = Rs.40,000/-. 32. Now the future prospect shall be @ 40% in view of the judgment of Pranay Sethi (Supra) at para 59.4. Then total income comes to Rs.56,000/-.

-8- Now it should be multiplied by 17 in view of the age of the deceased as 26 years as held by the Apex Court in the case of Sarla Verma (Supra) at para 42. Now compensation comes to Rs.56,000/- x 17 = Rs.9,52,000/- + Rs.70,0000/- (under the conventional head) in view of the judgment passed by the Apex Court in the case of Pranay Sethi (supra). 33. Upon question of medical expenses incurred by the claimants in treatment of the deceased (Ajodhya Oraon @ Budheshwar Oraon) as pleaded by learned counsel for the appellants, this Court has considered the judgment passed by the Apex Court as referred above and follows the ratio laid by the Apex Court. It appears that, Court has decided the just and fair compensation in a benevolent legislation. It is true that no pleading was made in the claim application nor any vouchers or documents have been brought on record by the claimants, but in her evidence she has stated about the expense of Rs.3 lacs during treatment of her husband before his death, as such, this Court is inclined to accept the contention agitated by the learned counsel for the appellants, but in absence of any documentary evidence, this Court is inclined to grant Rs.10,000/- only as notional medical expenses incurred by the claimants in the treatment of deceased- Ajodhya Oraon @ Budheshwar Oraon before his death. 34. Thus, total amount i.e. Rs.10,32,000/- (Rs.10,22,000/- + Rs.10,000/- towards medical expenses) is the enhanced amount. Out of which Rs.1,87,000/- inclusive of Rs.50,000/- paid under Section 140 MV Act shall be deducted then amount will come to Rs.8,45,000/-. 35. The new calculation chart would be as follows :- Income Rs.5,000/- per month Annual Income Rs.5,000/- X 12 = Rs.60,000/- 1/3rd deduction towards personal and living expenses Rs.60,000/- - Rs.60,000/- x 1/3rd = Rs.40,000/- Multiplier as 17 Rs.40,000/- x 17 = Rs.6,80,000/- Future Prospect @ 40% Rs.6,80,000/- + Rs.6,80,000/- x 40% [Rs.2,72,000/-] = Rs.9,52,000/- Conventional Head Rs.70,000/- Total

Compensation Amount Rs.9,52,000/- + Rs.70,000/- = Rs.10,22,000/-. Deduction under Section 140 of the MV Act Rs.10,22,000/- - Rs.1,87,000/- = Rs.8,35,000/- Medical expense Rs.8,35,000/- + Rs.10,000/- Total

compensation amount Rs.8,45,000/-

-9- 36. The same shall be paid along with interest @ 7.5% from the date of notice by this Court to the Insurance Company i.e. 5.02.2018 as there is delay on the part of the claimants, as such, in view of the Section 171 of the MV Act and there is sufficient reason to hold that such interest shall be paid from the date of issuance of notice to the Insurance Company. 37. Accordingly the instant appeal is allowed in the aforesaid terms. 38. Insurance Company is directed to pay the compensation amount within a reasonable time.

(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi dated 12.02.2021 R.S./ AFR