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IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.198 of 2011
------ 1. Smt. Sunita Choudhary 2. Aman Choudhary 3. Smt. Radha Choudhary
.... .... …. Appellants
Versus 1. Md. Akhtar 2. The Oriental Insurance Co. Ltd. .... .... .... Respondents
With
M.A. No.185 of 2011
------ The Oriental Insurance Co. Ltd.
.... .... …. Appellant
Versus 1. Smt. Sunita Choudhary 2. Aman Choudhary 3. Radha Choudhary
.... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Mr. Arvind Kumar Lall, Advocate (In M.A. No. 198 of 2011)
Mr. Alok Lal, Advocate (In M.A. No. 185 of 2011) For the Respondents : Mr. Alok Lal, Advocate (In M.A. No. 198 of 2011)
Mr. Arvind Kumar Lall, Advocate (In M.A. No. 185 of 2011)
CAV ON : 01.04.2022
PRONOUNCED ON 10 . 05. 2022
The claimants have preferred the M.A. No.198 of 2011 for enhancement of compensation awarded in Compensation Case No.178 of 2003. The Insurance Company has preferred M.A. No. 185 of 2011 against the Judgment and award of compensation, wherein the liability for paying compensation has been fixed on it. Both the appeals arise out of the same case, they have been heard together and shall be disposed of by the common judgment. 2. On 02.05.2003, the deceased Sanjay Kumar Choudhary while driving a motorcycle bearing Registration No.BR-14J-3431 met with an accident with a Marshall Jeep bearing Registration No.OR-09D-5786. The deceased sustained fatal injuries in the accident and died thereafter. As per the claimant’s case, the accident took place due to rash and negligent driving by the driver of the Marshall Jeep. The deceased was having a monthly income of Rs.30,000/- at the time of accident from transport business. 3. The learned Tribunal recorded a finding on Issue Nos. III & VI of contributory negligence on the part of the deceased and since the owner and insurer of the motorcycle had not been impleaded as a party, therefore, 50% of the awarded compensation amount was directed to be paid by the
owner/insurer of the offending Jeep. It has been held that it was a case of head on collision and the driver of both the vehicle were equally liable for the accident. The learned Tribunal computed a total compensation of Rs.10,50,000/- and directed the 50% of the amount i.e. Rs.5,25,000/- with interest at the rate of 6% per annum from the date of the admission of the claim case to be paid by O.P. No.2-Oriental Insurance Company Ltd., the insurer of the Jeep. 4. M.A. No.198 of 2011 has been preferred mainly on the ground that the deceased was having a monthly income of Rs.30,000/- whereas the Tribunal has assessed the income to Rs.10,000/- per month and despite the evidence brought on record by the claimants of Rs.30,000/-. Further, 1/3rd has been deducted on the personal living expense instead of 1/4th. The deceased was aged 34 years but multiplier of 13 has been taken in place of applicable 17 to deceased group. It is also argued that as per the evidence on record, it was not the case of contributory negligence rather the accident took place due to rash and negligent driving by the driver of the offending Jeep. 5. M.A. No. 185 of 2011 has been preferred by the Insurance Company, on the ground that the Tribunal erred while accepting Rs.10,000/- as the monthly income of the deceased without any documentary evidence in support of it. In the absence of documentary evidence the compensation should have been awarded by taking notional income of the deceased. 6. Coming to the evidence on the factum of accident, Hatia P.S. Case No.71/2003 was registered under Sections 279/304A of the I.P.C. against the driver of the Marshall Jeep bearing Registration No.OR-09D-5786 on the basis of the statement of the informant Rajan Kumar Choudhary recorded on the same day of the accident. It has been stated in the F.I.R. (Exhibit 5) that his brother Sanjay Kumar Choudhary while he was on way on motorcycle was dashed by the Marshall Jeep which was being driven rashly and negligently resulting in fatal injuries to his brother. Police on investigation, found the case true and submitted charge-sheet (Exhibit 6) against the driver of the Jeep Mokhtar Alam. A.W. 2-Suraj Narayan Choudhary has claimed himself to be the eye witness to the accident. He has deposed that he saw that one person coming from the side of Ranchi to Tipudana on his motorcycle was dashed by a Marshall Jeep coming at high speed from the opposite direction. It has been claimed by him that the Jeep was being driven rashly and negligently. A.W. 3- Birendra Kumar Singh has also supported the claimant’s case and deposed that
accident took place due to rash and negligent driving by the driver of the Marshall Jeep. No contrary evidence has been led on behalf of the opposite parties. The witnesses have consistently stated that the accident took place due to rash and negligent driving by the driver of a Marshall Jeep. The claimant’s case is also supported by the F.I.R. and charge-sheet filed against the driver of the Jeep. On these evidences, I find that accident took place due to rash and negligent driving of the Jeep. The learned Tribunal drew an inference of contributory negligence contrary to the evidence on record, on the reasoning it was a case of head on collision therefore it was a case of contributory negligence. I am of the view that such an inference cannot be drawn in all events merely because there was a frontal collision between the two vehicles. Rash and negligent driving of a vehicle depends on different factors, including the road condition, volume of traffic, speed of the vehicle the site plan of the place where the accident took place. In a civil proceeding the degree of proof is not as high as that in a criminal case. Here in the FIR, conclusion of the investigation as well the eye-witness account, all suggest that it was the Marshall Jeep which was being driven rashly and negligently which resulted in the accident. In the absence of any contrary evidence, the finding of contributory negligence, is not sustainable and is accordingly, set aside. 7. On the quantum of compensation, it is the case of the claimants that the deceased was in the transport business and had a monthly income of Rs.30,000/-. No document has been filed in support of the monthly income. Matter for consideration is whether the learned Tribunal was right to assess the income to Rs.10,000/- as the monthly income. It is argued on behalf of the Insurance Company that no document has been filed to show that the deceased owned any transport business. Learned counsel on behalf of the claimants argue that documentary evidence in all cases can not be insisted as the evidence of income. Reliance has been placed on 2008(2) TN MAC 261 (SC) wherein it has been held that other documents in support of income can be accepted to throw light on the income even though Income Tax returns of assessment orders not found. In this case in absence of concrete proof of income, the Tribunal assessed the income on the basis of notional income of Rs.15,000/- and the Hon’ble Apex Court was pleased to remit the matter to the Tribunal to pass the order afresh after reconsidering these documents.
For income assessment of a deceased one paper cannot be relied fully and different evidence is to be considered to draw an idea of the status of life of the deceased. One documentary evidence may not in all cases tell the whole story about the financial status and income of a person. The evidence of witnesses also needs to be scrutinized carefully as there is at times a tendency to exaggerate the income for a higher compensation. Here in the present case the deceased was a young man aged about 34 years supporting his wife, minor child and his parents. He was Master of Commerce in first division (Ext3), had a driving license (Ext 8) of motor cycle and LMV. There are LIC policy in his name on record of the case though not formally proved. The witnesses have stated that he was in transport business. Considering all these evidences, I am of the view that there was no error on part of the learned Tribunal, to accept Rs.10,000/- as the monthly income of the deceased.
Taking Rs.10,000/- as the monthly income, 34 as the age of the deceased, the final compensation amount shall work out as under:- Annual Income Rs.10,000/- x12 Rs. 1,20,000/- Annual dependency after deducting 1/3rd on the living and personal expenses of the deceased Rs. 80,000/- Taking multiplier of 16 considering the age of the deceased to 34 years Rs. 80,000/-x 16 = Rs 12,80,000/- Future Prospect @ 40% Rs. 5,12,000/- Conventional head Rs. 77,000/- Total Rs. 18,69,000/-
The claimants shall, therefore, be entitled to compensation of Rs. 18,69,000/- with interest at the rate of 7.5% per annum on the compensation amount from the date of filing of claim application from the Oriental Insurance Company O.P. No.2, before the Court below. The Insurance Company is, accordingly, directed to make payment of the compensation amount to the Tribunal within a month of this order. The Tribunal shall pay the compensation amount to the claimants in the manner given below: A. 60% of the total compensation amount to be paid to claimant no.1 B. 20% of the compensation amount to be paid to claimant nos.2 jointly with claimant no.1. C. 20% of the compensation amount to claimant no.3
M.A. No. 198 of 2011 is allowed as at above whereas, M.A. No. 185 of 2011 is dismissed. Consequently, I.A. No. 252 of 2021 in M.A. No. 185 of 2011 stands disposed of.
The Insurance Company is permitted to withdraw the statutory amount deposited at the time of filing of the appeal.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 10th May, 2022 AFR / AKT