Jharkhand High Court
Reliance General Insurance ... vs Rabiya Khatoon on 13 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 232 of 2016
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Reliance General Insurance Company Limited ... Appellant(s)
-Versus-
1. Rabiya Khatoon
2. Drakhsha Anjum
3. Md. Mahboob Alam
4. Afifa Nikhat
5. Kahksha Anjum
6. Md. Farhan Alam.
7. Md. Mehrab
8. Md. Sidique Hassan .. Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Appellant(s): Mr. Amit Kr. Das, Advocate.
For respondent Nos. 7 and 8: M/s Ananu Banerjee and Suman
Kumar, Ghosh, , Advocates.
For the claimants: Mr. Nikhil Ranjan, Advocate.
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07/13.12.2021: 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 01.3.2016 passed by the District Judge-IV-
cum-Motor Accident Claim Tribunal, Bokaro in T.M.V.Case No. 81 of 2011.
2. The counsel for the appellant-Insurance Company submits that
Rs.6,00,000/- has been granted by the Tribunal to the claimant No. 1 and
claimant Nos. 2 to 6 at the rate of Rs.1,00.000/- each under the head of loss of
consortium and loss of love and affection to the wife and minor children
respectively. He further submits that in view of judgment passed in the case of
National Insurance Company Limited Vs. Pranay Sethi & Others reported in
(2017) 16 SCC 680, the aforesaid amount of compensation under the head of
loss of consortium and loss of love and affection is too excessive. He also
submits that the deceased was a businessman and there is nothing on record to
suggest that the business of the deceased was closed because of his death, thus
the compensation is on the much higher side. He further submits that there is
contributory negligence on the part of the deceased as there was head on
collision between a Dumper and the motorcycle of the deceased, thus the
compensation should be apportioned and reduced proportionately. These are
the only two grounds addressed by the counsel for the appellant in this appeal.
3. Counsel for the claimants submits that though on account of loss of
consortium and loss of love and affection, Rs.6,00,000/- has been granted, but in
the instant case, no future prospect has been awarded. Since the deceased was
aged about 45 years, 25% enhancement should be granted on account of future
prospect, thus the amount of compensation is not excessive which has been
awarded under the conventional head. He further submits that so far as
business aspect is concerned, there is cogent evidences which suggest that the
deceased was running poultry-farm and his business has come to end due the
death of the deceased. He further submits that because of closure of the poultry
farm the Pickup Vans bearing registration Nos. JH10S 2061, JH09H 8168 and
JH09P 7445 are also not in use. On the point of contributory negligence,
counsel for the claimants also submits that there is no evidence on record to
suggest that the deceased was negligent. He further submits that the
chargesheet and the FIR will clearly suggest that it was the driver of offending
Dumper bearing registration No. JH 02K2786 was responsible for the accident.
He further submits that the aforesaid finding is also arrived at by the Tribunal and
there is no cogent ground to interfere with the same.
4. After hearing the counsel for the parties, I have gone through the
entire lower court records. The deceased, on 26.7.2011, had gone to
Chandrapura for his personal work and while he was returning by his
motorcycle , a Dumper bearing registration NO. JH 02K 2786, which was being
driven rashly and negligently, dashed the motorcycle of the deceased, resulting
grievous injury and ultimately the deceased died. Bermo P.S. Case No. 82/2011
for the offence under Sections 279 and 304-A IPC was lodged against the owner
and the driver of the aforesaid Dumper. The police after investigation, filed
chargesheet against the driver of the said offending Dumper.
5. The claimants, who are the wife and five minor children of the
deceased, filed a claim application. It is the case of the claimants that the
deceased was a businessman and was doing the business of Poultry farm and
was earning Rs.25,000/- per month. The claimants are claiming compensation
impleading the appellant-Insurance Company as the insurer of the offending
vehicle. The appellant-Insurance Company appeared before the Tribunal and
opposed the claim of the claimants on the ground of contributory negligence etc.
The driver and owner of the offending vehicle denied the fact of the accident but
admitted that the Dumper (offending vehicle) was duly insured with the Reliance
General Insurance Company Limited. The insurance policy was valid for the
period from 28.2.2011 to 27.2.2012 i.e. the period when the accident had taken
place. Thereafter, the Tribunal has framed six issues, which are as follows:-
(i) Whether the suit is maintainable in its present form?
(ii) Whether the plaintiff is entitled for compensation and form
whom and to what extent?
(iii) Whether the Dumper bearing No JH 02K-2786 had valid
insurance policy, fitness and permit at the time of accident?
(iv) Whether the driver of the Dumper had valid driving licence
at the time of accident?
(v) Whether the deceased died due to rash and negligently
driving of driver of dumper bearing No. JH 02K 2786?
(vi) Whether the plaintiff is entitled for any other relief or
relief(s)?
Four witnesses were examined on behalf of the claimants and
several documents were also exhibited as evidence on their behalf. The
Insurance Company did not produce any evidence.
6. The tribunal thereafter held that the Dumper bearing Registration
NO. JH02K 2786 is liable for the accident as the same was being driven rashly
and negligently. The Tribunal, thereafter considering the income of the deceased
as Rs. 20,000/- per month and after deducting Rs.5000/- on account of personal
expenses as well as applying '13' as multiplier, assessed the compensation
amount as Rs.23,40,000/-. The tribunal further granted Rs.6,00,000/- on account
of loss of consortium and loss of love and affection and Rs.25,000/- as funeral
expenses. Thus total Rs.29,65,000/- has been awarded by the Tribunal as
compensation amount to the claimants. The aforesaid award has been
challenged by filing this appeal before this Court, by the Insurance Company.
7. The two issues, which fall for consideration in this appeal
considering the grounds taken by the appellant are that:-
(i) Whether there is contributory negligence on the part
of the deceased or not in the instant case?
(ii) Whether the quantum of compensation as assessed
by the Tribunal is exorbitant?
8. To consider the aforesaid issues, I have gone through the award as
well as lower court records including the evidences led by the parties. After the
accident, an FIR being Bermo P.S. Case No. 82/2011 for the offence under
Sections 279 and 304A IPC was instituted, which is Ext.1. In the said FIR, it has
been clearly mentioned that due to rash and negligent driving of the Dumper, the
accident had occurred. The chargesheet is Ext.-2. The police investigated Bermo
P.S. Case No. 82/2011 and concluded that it is the driver of the Dumper, who is
responsible for the accident and thus, chargesheet was submitted against him.
This fact, prima facie, suggests that it is the driver of the dumper, who was at
fault and responsible for the said accident. Further in para 4 of cross-
examination, P.W.4, Rajendra Singh deposed that he had seen the occurrence.
In para 9 of his examination-in-chief, he stated that due to rash and negligent
driving of Dumper bearing registration No. JH02K 2786, the accident had taken
place. Thus from the aforesaid oral and documentary evidence, I find that it was
the driver of the offending Dumper who was at fault and due to rash and
negligent driving of the said offending Dumper, the accident had occurred. There
is nothing on record to suggest that the deceased was at fault and he had
contributed in the said accident. If the Insurance Company has taken plea that
there was contributory negligence on the part of the deceased, they ought to
have rebutted the aforesaid evidence, but they have failed to do so. Thus, in view
of the failure on the part of the Insurance Company to produce any evidence to
rebut the case of the claimant, I am of the opinion that there is no evidence on
the part of the Insurance Company to suggest that there was contributory
negligence on the part of the deceased. Accordingly, I find no illegality committed
by the Tribunal while answering the plea of contributory negligence.
9. So far as quantum of compensation is concerned, I find from the
impugned award that on the ground of loss of consortium and love and affection,
total Rs.6,00,000/- has been awarded to the claimants. No doubt, this amount is
exorbitant in view of the judgment passed in the case of Pranay Sethi (supra),
but the fact which cannot be lost sight of is that no compensation on account of
future prospect has been awarded by the tribunal in the instant case.
10. The claimant and P.W.2 (Mahboob Alam), who is one of the sons of
the deceased in his examination-in-chief, in para 9 and 14 has categorically
deposed that after the death of the deceased, the entire business has been
closed down and it is very difficult to them to survive. The Insurance Company
has not brought any evidence on record to controvert the aforesaid fact.
11. Considering the income of the deceased i.e. Rs.20,000/- per month
(which is also not challenged in this appeal), the dependency of Rs.5000/- is
deducted and applying the multiplier "13", which is the correct multiplier applied, I
find that the Tribunal has assessed the loss to be Rs.23,40,000/- and this amount
is not in dispute. Over and above the aforesaid amount, this Court is of the
opinion that the claimants are entitled for compensation on account of future
prospect, which should have been 25% of the income of the deceased as the
deceased was about 45 years at the time of accident. If 25% income of the
deceased is calculated under the head of future prospect, the amount will come
to Rs.5,85,000/-. If Rs.70,000/- is added on account of conventional head, the
amount of Rs.6,55,000/- has to be paid. Thus the total amount comes to
Rs.23,40,000/- + 6,55,000/- = Rs.29,95,000/-.
12. In this case, total amount of compensation assesses by the Tribunal
is Rs.29,65,000/-.
13. At this stage, counsel for the claimants submits that the claimants
have not filed any application for the balance amount of Rs.30,000/-, nor is
making any claim.
14. Considering what has been held above, I find no merit in this appeal.
Accordingly, this appeal is dismissed.
15. The Insurance Company is directed to satisfy the award along with
interest which should be paid within six weeks.
16. The Statutory amount deposited by the appellant-insurance
Company be refunded to them.
Anu/- (ANANDA SEN, J.)
