The New India Assurance Company ... vs Bindeshwari Devi
2021 Latest Caselaw 804 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Miscellaneous Appellate Jurisdiction)
                          M.A. No. 260 of 2012
                                ......

The New India Assurance Company Ltd. ...... Appellant Versus

1. Bindeshwari Devi

2. Pawan Kumar Kushwaha

3. Bittu Kumari

4. Kundan Kumar Kushwaha

5. Laxmi Devi

6. Binod Singh ......Respondents With M.A. No. 251 of 2013 ......

      1. Bindeshwari Devi
      2. Pawan Kumar Kushwaha
      3. Bittu Kumari
      4. Kundan Kumar Kushwaha
      5. Laxmi Devi                                               ...... Appellants
                                 Versus
      1. Binod Singh
      2. The New India Assurance Company Ltd.                     ......Respondents

      CORAM:          HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                      (Through : Video Conferencing)
      For the Appellant(s)      : Mr. G.C. Jha, Advocate [In M.A. No. 260 of 2012]

Mr. Rajiv Anand, Advocate [In M.A. No. 251 of 2013] For the Resp. : Mr. Rajiv Anand, Advocate [In M.A. No. 260 of 2012] Mr. G.C. Jha, Advocate [In M.A. No. 251 of 2013] Mr. Manish Kumar, Advocate [M.A. No. 251 of 2013]

13/Dated: 19/02/2021.

Heard, learned counsel for the parties.

The appellant- New India Assurance Company Ltd. has preferred M.A. No. 260 of 2012 for setting aside the award whereas the claimants, namely,

1.Bindeshwari Devi, 2.Pawan Kumar Kushwaha, 3.Bittu Kumari, 4.Kundan Kumar Kushwaha and 5. Laxmi Devi have preferred Miscellaneous Appeal (M.A. No. 251 of 2013) for enhancement of the award dated 25.09.2012 passed by learned 5th District Judge-cum-Presiding Officer, M.V.A.C.T., Hazaribag in Claim Case No.19 of 2005, whereby the claimants have been awarded compensation to the tune of Rs.4,31,000/- without any interest.

M.A. No. 260 of 2012 Learned counsel for the appellant, Mr. G.C. Jha (in M.A. No.260/2012) has assailed the impugned award on the ground that though the appellant- Insurance Company has brought evidence on record, that the cheque issued by the owner in favour of the Insurance Company for payment of premium,

was dishonoured / bounced and subsequently insurance policy in favour of the truck/ owner was cancelled and to that effect one witness has been examined as O.W.1 (Ran Ajay Mandal), being the Branch Manager, New India Assurance Company, Durgapur Branch (West Bengal). He has stated in his examination-in-chief that he is well conversant with the facts of the present claim case. He has further stated that owner of the vehicle, namely, Binod Singh had applied for Insurance of the offending vehicle/truck. The owner had given cheque No.564739 dated 07.09.2004 worth Rs.27,326/- for the Insurance of Truck bearing registration No.WB-37A-5711. That cheque was dishonored due to insufficient fund, in the account of the Truck owner. Thereafter, New India Assurance Company, issued letters to Truck owner, Binod Singh in this regard. These letters were dated 28.09.2004 and another letter of the same date. By these letters, an information was given to Binod Singh (owner of the Truck) regarding cancellation of the policy, earlier issued, in his favour. The copy of those letters have been proved. These letters have been marked as Ext.A and Ext.A/1. Further, the relevant cheque and other papers filed by the Insurance Company have been marked for identification in the series of Ext.X, Y and Z. This witness has been cross- examined. The cross-examiner has asked some formal questions to this witness, as such, the learned Tribunal has considered that though issuance of Insurance Policy was subsequently cancelled, but instead of fastening the liability upon the owner, the learned Tribunal has considered that New India Assurance Co. Ltd. has right to recovery the awarded money from the owner of the offending vehicle, namely, Binod Singh.

Learned counsel for the appellant has further submitted that it is a case of no policy to the offending vehicle, as such, instead of granting right to recovery, the learned Tribunal ought to have fastened the liability upon the owner of the vehicle, as such, that part of the impugned order may be modified.

Considering such submission of the learned counsel for the appellant and after going through the impugned order, it appears that initially the Insurance Policy was issued in the name of offending vehicle, but subsequently that has been cancelled, as such, it is not a case of no Insurance

rather it is a case of misuse of privilege of Insurance, as such, learned Tribunal has rightly given right to recover from the owner of the offending vehicle, namely, Binod Singh, in view of the judgment passed by the Apex Court in the case of Deddappa and Ors. vs. Branch Manager, National Insurance Co. Ltd. reported in 2008 (2) SCC 595.

Accordingly, the instant Miscellaneous Appeal i.e. M.A. No.260 of 2012 is hereby dismissed.

The statutory amount deposited by the Insurance Company shall be remitted to the learned Tribunal for payment of the awarded amount to the claimants.

I.A. No.6657 of 2015 (In M.A. No.251 of 2013) Learned counsel for the appellants/claimants has further submitted that there is delay of 260 days in preferring the appeal and for condonation of the same, I.A. No.6657 of 2015 has been preferred. The reason for delay has been explained in the Interlocutory Application.

Learned counsel for the Insurance Company, Mr. G.C. Jha has opposed the same.

After hearing learned counsel for the parties, looking into the facts and circumstances of the case, the delay of 260 days in preferring the appeal is condoned as no counter affidavit has been filed by the Insurance Company and the reason assigned by the appellants is acceptable to the court.

Accordingly I.A. No. 6657 of 2021 is allowed.

M.A. No. 251 of 2013 M.A. No.251 of 2013 has been preferred by claimants/appellants, namely, (1) Bindeshwari Devi, (2 )Pawan Kumar Kushwaha, (3)Bittu Kumari, (4)Kundan Kumar Kushwaha and (5)Laxmi Devi .

Learned counsel, Mr. Rajiv Anand on the instruction of learned counsel for the appellants, Mr. Ajay Kr. Singh has submitted that deceased (Bikky Prasad @ Bhikhi Prasad) was returning to his house by his motorcycle on 14.11.2004 at about 8.45 A.M. and as soon as he reached the vicinity of Village Panchmadho alongside of G.T. Road within Barhi Police station in the District of Hazaribagh, one truck bearing registration No.WB-37-A-5711 in rash and negligent manner coming from Dhanbad side to Barhi side and dashed the motorcyclist, who sustained serious and multiple injury on his body. The injured was firstly admitted to State dispensary at Barhi and

thereafter referred to Dr. Bhanu Shankar, a Doctor practicing at Hazaribagh and subsequently he was referred to Apollo Hospital, Ranchi where he died after nine days on 23.11.2004, during course of medical treatment.

The learned Tribunal has considered the income of the deceased as Rs.4,000/- as instead of Rs.8,000/- per month, as claimed by the claimants in absence of any documentary evidence, but there was oral evidence on record.

Learned counsel for the appellants has further submitted, that recently in the judgment passed by the Apex Court in the case of Chameli Devi vs. Jivrail Mian, reported in 2019 (4) TAC 724 SC, the income of a carpenter in absence of any documentary evidence has been considered as Rs.5,000/- per month whereas the deceased in the instant case is a contractor and there is consistent oral evidence with regard to the income of Rs.8,000/- per month, as such, the assessment made by the learned Tribunal to the tune of Rs.4,000/- per month is bad in law.

Learned counsel for the appellants/claimants has further submitted that deceased died at the age of 40 years, as assessed in the postmortem report and also the same has been brought on record as Exhibit-X/1.

Learned counsel for the appellants/claimants has further submitted that future prospect of the deceased has not been granted contrary to the judgment passed the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 at para 59.4 and recent judgment passed by the Apex Court in the case of Kirti & Anr. Etc. vs. Oriental Insurance Company Ltd. passed in Civil Appeal Nos.19-20 of 2021 decided on 05.01.2021, as such, the claimants are entitled for future prospect @ 25%.

Learned counsel for the appellants has further submitted that deceased left behind five dependents, but the learned Tribunal has wrongly deducted 1/3rd income as personal and living expenses contrary to the judgment passed by the Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 at para 30, whereby it ought to have been 1/4th.

Learned counsel for the appellants has further submitted that medical

expenses has been paid to the tune of Rs.40,000/- for treatment for nine days.

Learned counsel for the appellants has further submitted that under the conventional head, the learned Tribunal has granted less amount of Rs.5,000/- as loss of consortium, Rs.2,000/- as funeral expenses and no amount has been paid for loss of Estate, contrary to the judgment passed by the Apex Court in the case of Pranay Sethi (supra) at para 59.8, [loss of Estate as Rs.15,000/-, loss of consortium as Rs.40,000/- and funeral expenses as Rs.15,000/-], as such, the same may be awarded.

Learned counsel for the appellants has further submitted that contributory negligence has been wrongly considered by the learned Tribunal for deducting 1/4th of the compensation amount rather from the evidence brought on record, which has been discussed at para 11 of the impugned judgment, it is apparent that there was no negligence on the part of the deceased rather it was solely because of the driver of the offending truck, the deceased lost his life and even then 25% has been deducted as contributory negligence and that too without framing any issue of contributory negligence.

Learned counsel for the appellants has further submitted that in view of the evidence discussed at para 11 of the impugned judgment coupled with the fact, that chargesheet has only been submitted against the driver of the offending truck., as such, contributory negligence has wrongly been decided by the learned Tribunal without framing any issue contrary to the material brought on record.

Learned counsel for the respondent-Insurance Company, Mr. G. C. Jha has opposed the prayer and submitted that contributory negligence has rightly been considered by the learned Tribunal in Para 12 of the impugned judgment whereby the learned Tribunal has held that the collision has taken place from opposite side. Therefore, this collision is result of negligence shown by both the drivers, i.e. one motorcyclist himself and another driver of the truck.

Learned counsel for the appellants/claimants has further submitted that the interest has also not been paid without any specific averment, that the pendency was because of the laches on the part of the claimants, as such, this Court may grant interest to the claimants, in view of Section 171 of the

MV Act as well as the judgment passed by the Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, reported in 2008 (4) JCR 79 SC.

After hearing learned counsel for the parties, this Court has perused the impugned judgment. From perusal of the impugned judgment, it appears that there is head-on collision between the vehicles coming from opposite directions. The learned Tribunal is right in considering that collision has taken from opposite direction, therefore, this collision is result of negligence shown by both the drivers, one motorcyclist himself and other driver of the truck.

So far non-submission of the chargesheet against the motorcyclist is concerned, in my opinion, chargesheet submitted against a dead person is as good as not submitted, but police officer ought to have submitted chargesheet against the motorcyclist showing him dead, as such, this submission of learned counsel for the appellants is not acceptable to this Court.

So far the framing of issue regarding contributory negligence is concerned, though the same has not been framed but both the parties are aware of the fact with the evidence adduced before learned Tribunal. Even though the issue has not been framed, but since the parties are aware of the facts in issue then no such prejudice is caused to the parties, in view of the judgment passed by the Apex Court in the case of Alka Gupta vs. Narender Kumar Gupta, reported in 2010 (10) SCC 141.

Now for the just and fair compensation, this Court assessed the quantum of compensation in following terms:-

The claimants has claimed income of deceased to be Rs.8,000/- per month by oral evidence, but in absence of any documentary evidence, the learned Tribunal has considered the same as Rs.4,000/-. Recently in the judgment passed by the Apex Court in the case of Chameli Devi (Supra), the Supreme Court has considered the income of a carpenter to be Rs.5,000/- per month in absence of any documentary evidence.

Under the aforesaid circumstances, the deceased being a contractor cannot have less income than a carpenter, as such, his income is assessed to be Rs.6,000/- per month considering that he was employer not employee like carpenter.

As such, the amount per annum will come to Rs.6000/- x 12 = Rs.72,000/- (annual income).

Deceased was self-employed and died at the age of 40 years, as such, 25% furture prospect be added in view of judgment passed by the Apex Court in the case of Pranay Sethi (Supra).

As such, Rs.72,000/- + Rs.18,000/- = Rs.90,000/-. Deduction of 1/4th towards living and personal expenses as the dependents are five in number as per the judgment passed by the Apex Court in the case of Sarla Verma (Smt) (Supra) para 30.

Rs.90,000/- minus Rs.90,000/- x 25% = Rs.67,500/- . Considering the age of the victim to be 40 years multiplier of 15 is applicable in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt) (Supra) para 42.

Rs.67,500/- x 15 = Rs.10,12,500/-

Further deduction towards contributory negligence @ 25% the compensation amount comes to Rs.10,12,500/- minus Rs.10,12,500/- x 25%= = Rs.7,59,375/-.

Further Rs.40,000/- as medical treatment be added. Rs.7,59,375/- + Rs.40,000/- = Rs.7,99,375/-

Amount of Rs.70,000/- shall also be added under the conventional head in view of the judgment passed by the Apex Court in the case of Pranay Sethi (supra) at para 59.8.

Thus, total compensation amount comes to Rs.7,99,375/- + Rs.70,000/- = Rs.8,69,375/-. which shall be paid to the claimants along with interest @ 7.5% per annum from the date of the closure of the evidence by the claimants till the actual indemnifying the award in view of the finding recorded by the learned Tribunal that there was considerable laches on the part of both sides during the proceeding.

Accordingly, the instant appeal is hereby allowed. It goes without saying that so far right of recovery is concerned, the same has rightly been given by the learned Tribunal in favour of Insurance Company to recover the same from owner of the offending truck namely, Binod Singh which remains intact by this Court also.

Let the LCR be sent down at once.

Sandeep/                                                    (Kailash Prasad Deo, J.)