Jharkhand High Court
Divisional Manager vs Ritu Jaiswal on 6 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 41 of 2021
With
I.A. No. 4425 of 2021
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Divisional Manager, M/s Reliance General
Insurance Company Limited, Bokaro .... Appellant(s)
Versus.
1. Ritu Jaiswal
2. Aradhya Jaiswal
3. Achhat Atish Jaiswal
4. Shanti Devi
5. Mukesh Kumar
6. Santosh Kumar Mahato ... Respondent(s).
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CORAM: HON'BLE MR. JUSTICE ANANDA SEN.
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For the appellant(s): Mr. Amit Kumar Das, Advocate.
For the Respondent(s):
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04/06.12.2021: This Miscellaneous Appeal has been filed under Section 173 of the
Motors Vehicles Act, by the appellant- M/s Reliance General Insurance Company
Limited challenging the award dated 14.12.2020 passed by the District Judge-I-
cum-Motor Vehicles Accident Claims Tribunal, Bokaro in Motor Accident Claim
Case No. 14 of 2015.
2. The counsel for the appellant-Insurance Company submits that the
Tribunal has awarded exorbitant compensation amount of Rs.1,39,80,400/-. He
further submits that the quantum of compensation is on the much higher side on
the facts of the case. He also submits that the deceased was a businessman and
the impact of his death on the business has not been assessed by the tribunal.
He also submits that after the death of a businessman, if it is seen that the
business is continuing and there is no loss then the claimants are not entitled for
this exorbitant amount of compensation. In support of his contention, counsel for
the appellant relies upon the judgment of the Hon'ble Supreme Court in the case
of Rani Gupta and Ors. Vs. United India Insurance Company Ltd and Ors.
reported in (2009) 13 SCC 498. By referring the aforesaid judgment, he submits
that the Hon'ble Supreme Court held that the impact of death of a businessman
has to be considered while assessing the compensation amount, but in the
instant case, this aspect has not been considered, thus the award needs to be
set aside. He further submits that there was contributory negligence on the part
of the deceased, that being so, the claimants are not entitled for the amount,
which has been assessed by the tribunal. As per him, the Tribunal should have
apportioned the liability between the deceased and the offending vehicle and
proportionate amount should have been deducted, on the ground that there is
contributory negligence on the part of the deceased. These are the only grounds
which the counsel for the appellant-Insurance Company has raised by
challenging the award.
3. I have heard the counsel for the appellant and have gone through
the entire lower court records.
4. The deceased riding his motorcycle bearing registration No. JH 09F
7412, was going to Jhariya where his godown was situated. He was a
businessman and was dealing in liquor. When he reached near a Petrol Pump at
NH 32, a Truck bearing registration No. JH 09U 0316, which was being driven in
rash and negligent manner, dashed the motorcycle, as a result of which, the
deceased died on the spot. An FIR being Pindrajora P.S. Case No. 66/2014
under Sections 279, 304-A and 427 IPC was lodged. It is the case of the
claimants i.e. widow-wife, two minor children and the mother (who is also a
widow) was dependent upon the deceased. The deceased was aged about 33
years and was a businessman dealing in liquor and his income was
Rs.1,00,000/- per month. His business was duly licensed by the Government. It
is further the case that the offending vehicle i.e. the truck was duly insured with
the appellant-Insurance Company, thus the claimants are entitled for the
compensation amount.
5. The owner of the vehicle appeared and filed his show-cause/written
statement stating that the vehicle was duly insured vide policy No.
2410542334000390, which was valid from 9.2.2014 to 8.2.2015, thus the
Insurance Company is liable to satisfy the award.
6. The Insurance Company appeared and admitted the fact that the
offending vehicle i.e. the truck was insured. A plea was taken that the driver was
not having the valid driving licence.
7. From pleadings of the parties, seven issues were framed by the
tribunal. Issue No. 3 is in respect as to whether the death occurred because of
rash and negligent driving of the truck bearing registration No. JH 09U 0316.
Issue No. 4 is in respect of contributory negligence on the part of the deceased
and the driver of the offending vehicle. Issue No. 5 is in respect of the validity of
driving licence of the driver of the offending truck. Further issue framed relates to
what should be the compensation amount.
8. The claimants produced six witnesses. Large number of documents
were exhibited, which include the income tax return of assessment year 2012-13,
2013-14 and 2014-15, the banks' passbook and statements of accounts,
documents in respect of motorcycle, the driving licence of the deceased, licences
of Excise Department , Government of Jharkhand, FIR, which was instituted after
the accident. Several documents were marked "X" for identification and those are
the birth certificate of minor children of the deceased, documents in respect of
offending vehicle including its permit tax token, fitness certificate, driving licnece
of the driver of the offending truck, death certificate of the deceased and the
postmortem report etc.
9. The Tribunal after assessing the income of the deceased and
applying the multiplier concluded that the claimants are entitled for compensation
amount to the tune of Rs.1,39,80,400/- and thus awarded the aforesaid amount.
10. Considering the grounds, which have been taken, I feel that it is not
necessary to deal with the issues as to how the accident has occurred and also
the issues in respect of multiplier, dependency etc. The Insurance Company has
challenged the quantum of compensation on the ground that the same is
exorbitant and the impact of the death of the deceased on his business has not
been assessed by the tribunal properly while awarding the compensation.
11. On query, it has been admitted by the Insurance Company that the
business of the deceased was a sole proprietorship business. The Income Tax
Return and other documents clearly show that the business was in the name of
the deceased- Arun Atish Kumar. The licence, which was issued by the Excise
Department, Govt. of Jharkhand is also in the name of deceased -Arun Atish
Kumar. This fact clearly shows that the deceased was the sole proprietor of the
business and the said business was not a partnership business nor a company.
Thus, the entire income, which was earned from the business, was that of the
deceased. From Ext.18/1, I find that the licence was given to him by the Excise
Department, Govt. of Jharkhand and the yearly licence fee was of Rs.30,00,000/-
and monthly fees was of Rs.2,50,000/-. This licence was issued on 31.3.2011.
Similarly, another licence which was issued on 31.3.2012 i.e. Ext.18/3 also
suggests that he was granted the aforesaid licence on yearly fees of
Rs.60,20,000/- and monthly fess of Rs.5,01,667/-. Further, another licence was
issued on 31.3.2012, which suggests that the same was issued to the deceased
on payment of yearly fees of Rs.54,48,225/- with monthly fees of Rs.4,54,019/-.
These documents clearly suggest that the deceased was a successful
businessman and was doing the business of liquor and the same was duly
licensed by the Government of Jharkhand and he was paying huge licence fees.
The passbooks and the statement of accounts of several banks of the deceased
also clearly suggest that there was huge transaction on regular basis.
12. Further, I find that the Tribunal while assessing the income of the
deceased has taken into consideration the income tax returns. It is the claim of
the claimants that the deceased was earning Rs.1,00,000/- per month. The
yearly income of the deceased in the financial year 2012-13 was Rs.12,08,561/-,
for the financial year 2013-14, it was Rs.9,29,300/- whereas for the financial year
2014-15, it was Rs.3,65,050/-. Be it noted that the deceased died on 18.11.2014
i.e. during the aforesaid financial year. The tribunal while calculating the income
of the deceased also deducted the income tax component of the deceased and
concluded that the amount of Rs.69,000/- should be considered as monthly
income of the deceased. The tribunal, thereafter, proceeded accordingly. The
tribunal deducted 1/4th on account of personal expenses of the deceased and
applied "16" as multiplier and thereafter, awarded compensation on account of
future prospect. On conventional head, Rs.70,000/- was awarded. After taking
into consideration all these components, Rs.1,39,80,400/- has been awarded as
total compensation amount, which the claimant are entitled to. I find no illegality
in the aforesaid assessment.
13. It is the contention of the appellant-Insurance Company that the
impact of the death on the business of the deceased should have been
considered by the Tribunal while assessing the compensation amount, but the
same has not been done. The Hon'ble Supreme Court in the case of Rani Gupta
(Supra) in paragraph 24 has held that what was the actual loss of dependency to
the family was his contribution to run the business. It has also been held that the
amount of compensation, therefore, was required to be determined keeping in
view that factor in mind.
14. Considering the judgment of the Hon'ble Supreme Court, I have
gone through the evidence adduced. Claimant Witness No. 1- Sandeep Kumar
stated that all the applicants were dependent upon the deceased and the
deceased was a businessman having the business of liquor, which was duly
licensed by the Government of Jharkhand. He also stated in cross- examination
at para-35 that the income tax return for the financial year 2014-15 was filed after
the death of the deceased. In para-37, he has categorically stated that after the
death of the deceased, his business came to an end. In para-38, he further
stated that he was helping the deceased in business as he is the nephew of the
deceased. These are the statements of Claimant Witness No. 1 during cross-
examination, which clearly suggest that the business of the deceased came to an
end after his death. This Court finds that the death of the deceased had a fatal
impact on his business also as the business of the deceased was closed after his
death. Thus, there was huge loss to the family of the deceased. Considering the
aforesaid facts, I find that there is no illegality committed by the Tribunal in
awarding the said compensation amount.
15. Now the second ground, which has been urged is the contributory
negligence. This issue has already been dealt with by the Tribunal as Issue No.
4. The Tribunal while dealing with Issue No. 4 has held that there was consistent
evidences that the Truck bearing registration No. JH 09U 0316 dashed with the
motorcycle of the deceased. The tribunal also held that the truck was being
driven in rash and negligent manner. The plea of contributory negligence has
been advanced by the Insurance Company and when such plea is taken by the
Insurance Company, the burden is also upon the Insurance Company to prove
the same. Be it noted here that the Insurance Company has not adduced any
evidence to prove the fact of contributory negligence. The Tribunal also
considered the aforesaid fact and held that in absence of positive evidence from
the side of the Insurance Company, it cannot be held that there was contributory
negligence on the part of the deceased in the instant case. Thus, the Tribunal
has answered the aforesaid issue against the Insurance Company. Accordingly, I
find no illegality in the aforesaid finding of the Tribunal in absence of any
evidence.
16. So far as validity of driving licence of the driver of the offending truck
is concerned, I find that the Tribunal has answered the said issue in paragraph
13 of the Award and held that Santosh Kumar was the driver of the offending
truck having valid driving licence, which was valid from 2.6.2003 to 29.6.2032.
The photocopy of the said driving licence was marked as X/15 for the purpose of
identification. The onus in respect of driving licence was duly discharged by the
claimants. If the Insurance Company was of the view that the licence was not
proper or was not valid or was fake, they should have led evidence as the onus
shifted upon them. Once the copy of the licence was produced before the
Court/Tribunal, the Insurance Company should have led the evidence, but the
Insurance Company did not lead any evidence rather from the nature of
arguments advanced, I find that it is not the case of the Insurance Company that
the driving lience was fake.
17. Considering what has been held above, I do not find any ground to
interfere with the impugned Award dated 14.12.2020 passed by the District
Judge-I-cum-Motor Vehicles Accident Claims Tribunal, Bokaro in Motor Accident
Claim Case No. 14 of 2015. Since no other ground(s) has been raised, I am not
dealing with any other aspect than those which have been raised herein above.
18. I find no merit in this appeal. Accordingly, this appeal is dismissed.
19. The Insurance Company is directed to satisfy the award along with
interest.
20. At this stage, it has been informed by the counsel for the appellant-
Insurance Company that cheque(s)/draft(s) has been deposited with the
Certificate Officer, Bokaro in Certificate Case No. 03/2021-22 as a certificate
proceeding was initiated. He submits that he may be permitted to take back the
aforesaid cheque(s)/draft(s) so that the awarded amount of compensation may
be disbursed to the claimants before the Lok Aadalat, scheduled to be held on
11.12.2021.
21. Considering the aforesaid submission, I direct the appellant-
Insurance Company to take back the cheque(s)/draft(s), which has been
deposited with the District Certificate Officer, Bokaro in Certificate Case No.
03/2021-22 and pay the entire awarded amount of compensation along with
interest to the claimants before the National Lok Aadalat, scheduled to be held
on 11.12.2021.
I.A. No. 4425/2021
This application has been filed for staying the execution of the
impugned Award as well as further proceedings of Certificate Case No. 03/2021-
22, pending in the court of learned Certificate Officer, Bokaro, during pendency of
the instant appeal.
Since the main appeal stood dismissed, this interlocutory application
is also dismissed.
Anu/-CP-2 (ANANDA SEN, J.)
