The Branch Manager vs Umesh Turi
2021 Latest Caselaw 1662 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Civil Miscellaneous Appellate Jurisdiction)
                          M.A. No. 244 of 2018
                               ......

The Branch Manager, The New India Assurance Co. Ltd., Giridih ...... Appellant Versus

1. Umesh Turi

2. Suresh Turi

3.Om Prakash Turi

4.Soni Kumari

5. Raju Turi

6. Laxmi Devi

7. Munil Yadav

8. Sadanand Pathak . .......Respondents

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

      For the Appellant                    : Mr. G.C. Jha, Advocate
      For the Respondents                  :
                                -----
05/Dated: 07/04/2021.

Heard, learned counsel for the appellants, Mr. G.C. Jha. The New India Assurance Co. Ltd. has preferred this appeal against the award dated 04.01.2018 passed by learned District Judge-II-cum- M.A.C.T., Giridih in Motor Accident Claims Case No.33 of 2013 whereby the claimants namely, 1. Umesh Turi, 2, Suresh Turi, 3, Om Prakash Turi, 4, Soni Kumari, 5, Raju Turi and 6. Laxmi Devi have been awarded compensation to the tune of Rs.34,79,419/- along with simple interest @ 6% per annum from the date of filing of the claim application i.e. 14.06.2013 till the realization of the amount of compensation from O.P. No.3 i.e. New India Assurance Co. Ltd. If the said amount is not paid within a period of 60 days from the date of order the interest shall be charged @ 9% per annum after the expiry of 60 days.

Learned counsel for the appellant, Mr. G.C. Jha has submitted that fact of the case is that on 01.01.2013 at about 06:30 P.M. the deceased (Binwa Devi) along with her son-in-law Kunju Bihari Turi were coming on a motorcycle from Beniadih and as soon as they reached near C.C.L. D.A.V. School then a truck bearing registration No.JH-09D-1479 dashed the motorcycle by rash and negligent driving due to which Binwa Devi fell down from the motorcycle and the truck crushed her due to which she died at the spot.

Learned counsel for the appellant has further submitted that though it is head on collision between the truck and motorcycle but the claimants have not impleaded, the owner and driver of the motorcycle as party in the claim application.

Learned counsel for the appellant has further submitted that it was a head on collision between the truck and motorcycle but no amount has been deducted by the learned Tribunal on the ground of contributory negligence.

Learned counsel for the appellant has further submitted that income has been wrongly considered by the learned Tribunal inclusive of electrical and other monetary benefits given to the deceased, who was a labourer of C.C.L., who died at the age of 45 years.

Learned counsel for the appellant has further submitted that if the compensation amount is not paid within a period of 60 days along with interest @ 6% per annum from the date of award then after 60 days of the award the interest shall be charged @ 9% per annum.

Learned counsel for the appellant has further submitted that this Court has examined the records and has considered the judgment passed by the Apex Court in the case of Khenyei vs. New India Assurance Co. Ltd. & Ors., reported in AIR 2015 SC 2261 corresponding SCC 2015 (9) SCC 273, the Apex Court has dealt with that issue in para 17 which reads as follows:-

"17 The question also arises as to the remedies available to one of the joint tort feasors from whom compensation has been recovered. When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor. Thus, it would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them."

(emphasis supplied) The same has again been reiterated in para 22 reads as follows:-

"22. What emerges from the aforesaid discussion is as follows: 22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

22.2. In the case of composite negligence, apportionment of compensation between two tort feasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3. In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tort feasor can recover the amount from the other in the execution proceedings.

22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."

Having heard learned counsel for the appellant and perusing the materials brought on record and considering the judgment relied upon by the learned counsel for the appellant, the question of the maintainability on the ground that another vehicle, which met with an accident has not been made party is not sustainable in the eyes of law as agitated by the appellant- Insurance Company.

So far contributory negligence is concerned, no evidence has been brought on record by the Insurance Company and only on the pleading in the written statement, the issue cannot be decided which has not been agitated before the learned Tribunal.

So far the income of the deceased is concerned, the learned Tribunal has rightly considered the same, 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 59.4 whereby only the tax component is to be deducted, which has been done by the learned Tribunal in the present case.

So far the interest is concerned, since the interest ought to have been granted @ 7.5% per annum from the date of filing of the claim application, which has been granted @ 6% per annum from the date of filing till 60 days of the award, failing which 9% has been awarded after 60 days of the award, this Court is not inclined to interfere with the same as interest @ 7.5% per annum from the date of filing of the claim application as passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation, reported in (2008) 4 JCR 79 SC is the consistent view of this Court, but considering the rate of interest to be @ 6% from the date of filing till the 60 days of the award and if the amount is not paid within 60 days of award the interest is @ 9%, this Court is not inclined to interfere with the same.

Accordingly, the instant Miscellaneous Appeal being devoid of merit is hereby dismissed.

I.A. No.4080 of 2018 is hereby closed.

The statutory amount deposited by the appellant- Insurance Company shall be remitted to the learned Tribunal/Executing Court by the learned Registrar General of this Court within a period of four weeks from today, which shall be indemnified to the claimants and the balance amount of award as passed by the learned Tribunal shall be indemnified by the Insurance Company within a reasonable time as the accident took place on 01.01.2013.

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