Kartikanand Jha vs The Oriental Insurance Company ...
2021 Latest Caselaw 1659 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 617 of 2018
                          ........

Kartikanand Jha                          .... ..... Appellant
                              Versus

The Oriental Insurance Company Limited & Others .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant : Mr. Rajendra Prasad, Advocate. For the Respondent No. 1 : Mr. Alok Lal, Advocate.

........

05/07.04.2021.

Heard, learned counsel for the appellant, Mr. Rajendra Prasad and learned counsel for the Oriental Insurance Company Limited, Mr. Alok Lal.

Learned counsel for the appellant has submitted that the owner of the offending bus bearing registration no. JH-15D-5365 has preferred this appeal against the award dated 23.08.2018 passed by learned District Judge-V-cum-Motor Vehicle Accident Claims Tribunal, Deoghar in Motor Vehicle Accident Claims Case No. 10/2020, whereby claimants namely, (1) Jahid Mian, S/o Late Turabali Mian and (2) Sakina Khatoon, W/o Jahid Main, have been awarded compensation to the tune of Rs. 3,18,000/- along with interest @ 6% per annum from the date of filing of the claim application i.e. from 05.07.2010 to be paid within 60 days from the date of award, failing which claimants will be entitled to get interest @ 9% per annum and compensation shall be distributed among the claimants @ 50% each. The amount already paid under Section 140 of the Motor Vehicles Act shall be deducted from the total amount.

Learned counsel for the appellant has assailed the impugned award on the ground that Issue No. (4) Whether at the alleged time of accident, the Star Bus bearing registration no. JH-15D-5365 was covered under valid Insurance Policy?

The same has been decided by the learned Tribunal in favour of the owner considering the Policy to be valid, but at the last, the learned Tribunal has fastened the liability upon the owner of the bus instead of the Insurance Company.

Learned counsel for the appellant has further submitted, that the learned Tribunal has considered the deceased Mustakim Ansari to be gratuitous passenger, who was travelling on the roof top of the vehicles and thus fastened the liability upon the owner of the vehicle, but has failed to consider the Judgment passed by the Full Bench of this Court in the case of Giriraj Prasad Agarwal & Others Vs. Parwati Devi & Others reported in (2005) 2 JCR 523.

Learned counsel for the appellant has further submitted that in the case of North-East Karnataka Road Transport Corporation Vs. Vijaya Laxmi & Others reported in (2012) 3 JCR 405, the Full Bench of Karnataka High Court has directed the Division Bench to consider the quantum of compensation.

Learned counsel for the Insurance Company has submitted that the appellant has not only assailed the technical question which has already been adjudicated by the learned Tribunal, but also the quantum of compensation in absence of any appeal preferred by the claimants.

Learned counsel for the Insurance Company has referred the judgment of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639. Para-8 of the aforesaid judgment 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 owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an

appeal by the claimants seeking enhancement of compensation.

Learned counsel for the Insurance Company has submitted that though the issue No. (4) has been decided by holding that the offending vehicle was duly insured before the Oriental Insurance Company, but while fastening the liability upon the owner, the learned Tribunal has adjudicated Issue No. (5) against the insured; i.e. Whether on 21.11.2019 at around 4:00 p.m. because of rash and negligent driving of the driver of the Star Bus bearing registration no. JH-15D-5365 road accident took place, in which Mustakim Ansari travelling on the roof of the bus fell down on the road and died.

Learned counsel for the Insurance Company has submitted that the Full Bench judgment of this Court in Giriraj Prasad Agarwal (Supra) has been considered by the Apex Court in Civil Appeal No. 2421/2008, whereby the appeal has been disposed of with a direction with leaving the question of law to be decided in appropriate case, as such, the said judgment is not of any help to the owner of the offending Bus i.e. appellant, but in other judgments passed by the Apex Court in the case of Pappu Vs. Vinod Lamba reported (2018) 3 SCC 208 and Amrit Paul Singh and Another Vs. Tata AIR General Insurance Company Limited and Others reported in (2018) 7 SCC 558, this issue has already been decided by the Hon'ble Apex Court, that such passengers are gratuitous passengers and the same is considered to be violation of terms and conditions of the Policy, as such, the learned Tribunal has rightly fastened the liability upon the owner of the offending vehicle, which does not require any interference by this Court.

Learned counsel for the Insurance Company has further submitted that though the appellant has sought deduction in the quantum of compensation on the ground of contributory negligence, but no evidence has been brought on record contrary to the material adduced before the learned Tribunal, that accident took place because of rash and negligent driving of the driver of the offending Bus.

This Court has examined the judgment passed by the Apex Court in the case of Ranjana Prakash (Supra). No appeal has been preferred by the claimants for enhancement of the award, but it appears that learned Tribunal has granted less amount of compensation under different heads. The learned Tribunal has not considered the future prospect of the deceased in view of the judgment passed by the Apex Court in the case of Kirti & Anr. Vs. Oriental Insurance Company Limited reported in 2021 SCC Online SC 3 as well as National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (paragraph-59.4) as well as less amount i.e. only Rs. 30,000/- has been awarded under the conventional head contrary to the judgment passed by the Apex Court passed in the case of Pranay Sethi (supra) (Para-59.8).

Accordingly, this Court in absence of any appeal preferred by the claimants cannot enhance the compensation, as such, the appeal preferred by the appellant - Owner of the Bus is accordingly dismissed.

The statutory amount deposited by the appellant shall be remitted to the learned Tribunal within four weeks from today by the learned Registrar General of this Court for indemnifying part of the award. The balance amount shall be indemnified by the Insurance Company in terms of the award passed by the learned Tribunal within a reasonable time as the occurrence is of dated 21.11.2009.

(Kailash Prasad Deo, J.) Sunil/-