The Divisional Manager vs Sunaina Devi
2021 Latest Caselaw 471 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    [Civil Miscellaneous Appellate Jurisdiction]
                            M.A. No. 494 of 2019
         The Divisional Manager, National Insurance Company Ltd.... .. ...         Appellant
                                    Versus
         1.Sunaina Devi
         2. Surendra Paswan
         3. Anil Karmali                                           .. ... ... Respondents
                         ...........

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

      For the Appellant              :     Mr. Amresh Kumar, Advocate.
      For the Resp. Nos.1 & 2 :            Mr. Rajiv Anand, Advocate
                         ..........
04/02.02.2021.

             Heard, learned counsel for the appellant.

Nobody appears on behalf of the owner even on repeated calls though name of learned counsel Md. Imtiaz Khan appears in the cause-list.

The instant Miscellaneous Appeal has been preferred by the National Insurance Company Limited against the award dated 25.06.2019 passed by learned Motor Vehicle Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No.132/2016, whereby the claimants namely, Sunaina Devi and Surendra Paswan have been awarded compensation to the tune of Rs.5,23,600/- (out of which amount of Rs.50,000/- has already been paid as interim compensation under Section 140 of MV Act) along with interest @ 9% per annum from the date of filing of the claim case i.e. 27.05.2016 till its realization.

Learned counsel for the appellant has assailed the impugned order on the grounds that the owner of the offending vehicle namely, Anil Karmali has violated the terms and conditions of the policy as there was no permit of the vehicle on the alleged date of occurrence i.e. 23.05.2015. To buttress his argument, learned counsel for the appellant has placed Exhibits 7 and 7/1, which may profitably be quoted hereunder:-

"Ext.7- Photo copy of Temporary permit for the offending vehicle Tempo registration No.JH-02Y-6663 in the name of Anil Karmali, O.P. No.1 valid for the period from 07.09.2013 to 02.01.2014 vide Permit No.7622/13.

Ext.7/1- Photo copy of Temporary permit for the offending vehicle Tempo registration No.JH-02Y-6663 in the name of Anil Karmali, O.P. No.1 valid for the period from 03.06.15 to 02.10.15 vide Permit No.492/15."

Exhibit-7 shows temporary permit of offending vehicle, Tempo bearing registration No.JH-02Y-6663 in the name of Anil Karmali, valid for the period from 07.09.2013 to 02.01.2014 vide permit No.7622/13 whereas Exhibit-7/1, shows temporary permit of the aforesaid vehicle of Anil Karmali, valid for the period from

03.06.2015 to 02.10.2015 vide permit No.492/15, as such, on the date of accident i.e. 23.05.2015, the offending vehicle has no permit. As such, in view of the judgment passed by the Apex Court in the case of Amrit Paul Singh and Another vs. Tata AIG General Insurance Company Limited and Others, reported in (2018) 7 SCC 558, the appellant may be given right of recovery from the owner of the offending vehicle as there is violation of Section 149(2)(a)(i)(c) of the MV Act.

Learned counsel for the appellant has further submitted that the learned Tribunal has awarded excess interest @ 9% per annum from the date of filing of the claim application i.e. 27.05.2016 till its realization is contrary to the judgment passed by the Apex Court in the case of Dharmpal and Sons vs. UP State Road Transport Corporation; 2008 (4) JCR 79 SC, whereby interest ought to have been @ 7.5% per annum or the prevalent bank rate of interest, as such, the impugned award may be reduced and the Insurance Company may be given right to recover the same from the owner of the offending vehicle, in view of the judgment passed by the Apex Court in the case of Amrit Paul Singh and Another vs. Tata AIG General Insurance Company Limited and Others, (2018) 7 SCC 558 as well as in the case of Oriental Insurance Co. Ltd. vs. Nanjappan & Others, (2004) 13 SCC 224.

Learned counsel for the claimants, Mr. Rajiv Anand has submitted that though the claimants have claimed income of the deceased as Rs.5,000/- per month, but in absence of any documentary evidence, the learned Tribunal has considered notional income of deceased as Rs.3000/- per month, though in recent judgment by the Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC has held the income of the deceased to be Rs.5000/- per month in absence of documentary evidence, who was a carpenter, as such, this court may also consider the compensation to be fair and just and may not reduce the interest, which has been granted @ 9% per annum in view of the judgment passed by the Apex Court in the case of Jitendra Khimshankar Trivedi vs. Kasam Daud Kumbhar & Ors., reported in 2015 (4) SCC 237.

Since the owner has been noticed and learned counsel, Md. Imtiaz Khan has filed vakalatnama on his behalf, but on repeated call nobody appears on behalf of the respondent-owner and even the mobile phone of the counsel was found to be switched off as disclosed by the staff of the registry.

As such, this Court is inclined to take up this matter for final disposal as the incident is of the year, 2015.

From perusal of the impugned award, it appears that Bikash Kumar Paswan @ Bivash Kumar Paswan (deceased) died in a road accident on 23.05.2015 by offending vehicle Tempo bearing registration no.JH-02Y-6663. The vehicle was insured before the National Insurance Company Limited vide policy

no.171104/31/15/6300000273 valid for the period from 26.04.2015 to 27.04.2016.

It appears that the owner of the vehicle has appeared before the learned Tribunal as O.P. No.1 and has categorically stated that vehicle has not violated any terms and conditions of the Insurance Policy. National Insurance Company has also appeared before the learned Tribunal as O.P. No.2 and has led evidence, which have been brought on record as Exhibits- A, B and C, but no contrary evidence has been brought on record by O.P. No.1/owner of the offending vehicle.

Under the aforesaid circumstances, this Court is inclined to accept the argument advanced by the appellant that there is violation of Section 149(2)(a)(i)(c) of the MV Act, which reads as follows:-

(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--

(a)that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--

(i) a condition excluding the use of the vehicle--

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle."

The Insurance Company has brought on record photocopy of the temporary permit as Exhibit-B and the same has also been adduced by the claimants as Exhibits-7 (as such, Exhibits-B is same as Exhibit-7).

Considering the Exhibit-7 adduced by the claimants and Exhibit- B adduced by the Insurance Company, this Court is of the opinion that the owner of the vehicle has not led any contrary evidence to disbelieve the same.

Accordingly, the Insurance Company is given right of recovery from the owner of the offending vehicle after indemnifying the awarded amount.

So far interest part is concerned, it appears from the impugned order at page no.9 that learned Tribunal has considered notional income of the deceased as Rs.3,000/- per month contrary to the judgment passed by the Apex Court in the case of the Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC at para 20, where the Apex Court has considered the income of the deceased to be Rs.5,000/- even in absence of documentary evidence, when the deceased was a carpenter and the occurrence was of the year, 2001. Here the deceased was running a coaching center, but no document has been proved nor any contrary evidence has been brought on record by the Insurance Company and there is finding that meagre income has been assessed by the learned Tribunal, but in absence of any appeal for enhancement by the claimants, this Court by considering the judgment passed by the

Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 para 8 of which 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 the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

And in view of the judgment passed by the Apex Court in the case of Jitendra Khimshankar Trivedi (supra), is not inclined to interfere with the impugned judgment considering it to be just and fair compensation as if the interest is reduced to 7.5% per annum from 9% per annum and income is enhanced to Rs.5,000/- per month from Rs.3,000/- per month then there will be no considerable change in the compensation amount.

Accordingly, the instant Miscellaneous Appeal is partly allowed. I.A. No.33 of 2021 is hereby closed.

The appellant is given liberty to recover the compensation amount along with interest from the owner of the offending vehicle after indemnifying the award to the claimants.

The statutory amount deposited by the Insurance Company before this Court while preferring the appeal shall be remitted to the learned Tribunal by the learned Registrar General of this Court within a period of four weeks so as to indemnify the award, if not indemnified till date.

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