Jharkhand High Court
The Divisional Manager vs Mariyam Hansda & Others on 9 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 299 of 2018
........
The Divisional Manager, The New India
Assurance Co. Ltd. ..... ..... Appellant
Versus
Mariyam Hansda & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellant : Mr. D.C. Ghosh, Advocate.
For the Respondents : None.
........
03/09.08.2021.
Heard, learned counsel for the appellant, Mr. D.C. Ghosh.
Appellant - The New India Assurance Co. Ltd. has preferred
this appeal against the award dated 10.11.2017 passed by learned
Principal District Judge-cum-Motor Vehicle Accident Claim Tribunal,
Pakur in M.A.C.C. Case No. 11/2015, whereby the claimants namely,
(1) Mariyam Hansda, wife of Late Bariyar Marandi, (2) Gini Marandi,
daughter of Late Bariyar Marandi, (3) Mini Marandi, daughter of Late
Bariyar Marandi, (4) Doli Marandi, daughter of Late Bariyar
Marandi, (Claimant nos. 2 to 4 being the minor represented through
their mother and natural guardian claimant no. 1 Mariyam Hansda),
(5) Prithivi Marandi @ Pirthi Marandi, son of Late Charan Marandi
and (6) Suhagini Hembrom, wife of Prithivi Marandi @ Pirthi
Marandi, being the parents of the deceased, have been awarded
compensation to the tune of Rs. 11,73,000/- along with interest @ 7%
per annum from the date of filing of the claim case i.e. 25.03.2015 till
the date of indemnifying the award to be paid within 45 days from the
date of award, failing which interest @ 9% per annum shall be paid
on net payable amount.
Learned counsel for the appellant, Mr. D.C. Ghosh has
assailed the impugned award on the ground that as per the claim
application itself, it appears that deceased along with his son
Devidhan Marandi and other family members were standing at the
left side of the road near Devpur Bridge due to some defect in the
motorcycle and they were waiting for passenger vehicle. In the
meantime, Tempo bearing registration No. JH-16A-5191 rashly and
negligently coming in high speed dashed Bariyar Marandi and his
son Devidhan Marandi and other family members due to which all of
them sustained injuries, they were taken to Sadar Hospital, Pakur,
where in course of treatment Bariyar Marandi and Devidhan
Marandi died of the injuries. On the fardbeyan of informant, Pirtho
Marandi, Hiranpur P.S. Case No.38/2014 has been registered and
after investigation charge-sheet has been submitted against the driver
of the tempo bearing registration No.JH-16A-5191 under Sections
279, 337, 338, 427, 304(A) of the IPC.
Learned counsel for the appellant has further submitted that
the offending Tempo bearing registration No.JH-16A-5191 was duly
insured before the Branch of New India Assurance Company
Limited vide Policy No.5129103113020000010 for the period from
05.12.2013 to 04.12.2014. This is an admitted position.
Learned counsel for the appellant has further submitted that
the Insurance Company has assailed the impugned award only on the
ground that as per the First Information Report, the deceased was
trevelling on motorcycle with entire family and two persons among
them have died. The learned Tribunal has not considered the issue
with regard to contributory negligence, as such, this court may
consider the same.
Learned counsel for the appellant has further submitted that
there is delay of 73 days in preferring the appeal and for condonation
for same, I.A. No.2154/2020 has been preferred on the ground that
while processing the file for preferring an appeal such period have
elapsed, as such, the same may be condoned and notice may be
issued to the claimants.
Considering the submission of the appellant and perusal of the
impugned award and looking into the fact and circumstances of the
case, it appears that it is not the case that the deceased was going on
motorcycle, rather the deceased was standing along with his family
member including his son Devidhan Marandi, who also lost his life
in the same accident, as his motorcycle was out of order and they
were waiting for the passenger vehicle. The Insurance Company has
not taken any plea with regard to contributory negligence in the court
below nor any issue was framed and as such, the learned Tribunal
has also not given any finding on the same.
Considering the same, it is not a case of contributory
negligence, as there is no evidence on record, in view of the
judgment passed by the Hon'ble Apex Court in the case of of
Ramchandra Vs. Regional Manager United India Insurance
Company Limited reported in 2013 12 SCC 84 (Para-26). Para-26 of
aforesaid judgment is profitably quoted hereunder:-
"26. Hence, at the stage of appeal before the High Court, we
find no legal justification for the High Court to leave it open to
the insurance company to realize the amount of compensation
beyond Rs.32,091/- from the insured/owner as the plea of the
respondent/insurance company although was that the claimant is
not entitled to any compensation beyond the extent of liability
under the Workmen's Compensation Act and the respondent /
insurance company had not taken the alternative plea either
before the tribunal or the High Court that in case the claimant is
held entitled to compensation beyond the extent of liability under
the Workmen's Compensation Act, the same was not payable as
no extra premium was paid by the insured/owner under the policy
of insurance. The insurance company had failed to raise any plea
before the courts below i.e. either the Motor Accident Claims
Tribunal or the High Court and it did not even contend that in
case the claimant is entitled to any compensation beyond what
was payable under the Workmen's Compensation Act, it is the
insured owner who was liable to pay as it had no contractual
liability since the insured/owner of the vehicle had not paid any
extra premium. Thus, this plea was never put to test or gone into
by the Motor Accident Claims Tribunal since the insurance
company neither took this plea nor adduced any evidence to that
effect so as to give a cause to the High Court to accept this plea
of the insurance company straight away at the appellate stage."
Considering the material brought on record, no case is made
out to interfere by this Court in an appeal preferred by the Insurance
Company so far contributory negligence is concerned.
Accordingly, without going into the compensation awarded by
the learned Tribunal, the appeal preferred by the Insurance Company
is hereby dismissed.
I.A. No.2154/2020 is hereby closed.
The statutory amount deposited by the appellant at the time of
preferring the appeal shall be remitted to the learned Tribunal within a
period of four weeks from today by the learned Registrar General of
this Court, so as to indemnify the part of the award to the claimants
and the balance amount of award as awarded by the learned Tribunal
shall be indemnified to the claimants by the Insurance Company within
a reasonable period as the accident is of dated 18.04.2014.
(Kailash Prasad Deo, J.)
Sunil/-
