Reliance General Insurance ... vs Kiran Kumari & Others
2021 Latest Caselaw 840 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 440 of 2014
                           ........

Reliance General Insurance Company Limited ..... Appellant Versus Kiran Kumari & Others .... ..... Respondents

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

For the Appellant                 : Mr. A. K. Das, Advocate.
                                   : Mrs. Swati Shalini, Advocate.
For the Respondents               : Mr. Rajiv Anand, Advocate.
                                  ........
18/22.02.2021.

Heard Learned counsel for the appellant, Mr. Amit Kumar Das assisted by Mrs. Swati Shalini.

Learned counsel for the appellant has submitted that the Reliance General Insurance Company Limited has preferred this appeal against the award dated 28.07.2014 in T.M.V. No. 63 of 2009 passed by learned District Judge-I-cum-MACT, Bokaro, whereby the claimant namely Kiran Kumari has been awarded compensation to the tune of Rs.4,22,500/- along with simple interest @ 7% per annum from the date of filing of the case within two months, filing which the claimant will be entitled to satisfy the award through the process of law.

Learned counsel for the appellant, Mr. Amit Kumar Das has assailed the impugned award on the ground that the age of the victim deceased, Kishori Devi has been wrongly considered by the learned Tribunal without perusing the age mentioned in the postmortem report, which has brought on record as Exhibit-X for identification.

Learned counsel for the appellant has submitted that a document has to be read in totality, if the post-mortem report says the age of the deceased to be 60 years, the court ought to have relied upon the same, if the court consider the death certificate is a genuine document for considering the death of the deceased, then court cannot ignore the age mentioned in the post-mortem report.

Learned counsel for the appellant has further submitted that driver has no valid and effective licence at the time of the accident. The learned Tribunal has wrongly considered issue No.IV, which reads as follows;- IV

Whether the driver of Bus had a valid driving Licence at material time of accident on dt. 12.06.09?

The driver has not produced, the driving license and other documents, the court ought to have given right to recover in favour of the appellant. Learned counsel for the appellant has thus submitted that this court may set aside the impugned judgment.

Learned counsel for the claimant, Mr. Rajiv Anand has submitted that learned Tribunal has decided the issue in accordance with law though the compensation has been paid on the lower side. Certain amount under the conventional head has been paid on the lower side contrary to the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 paragraph-59.8, but since the quantum of the compensation has not been assailed by the Insurance Company, as such, other grounds which are available for claimant such as income of the deceased on lower side is not being agitated.

Learned counsel for the claimant has further submitted that no enhancement appeal has been preferred by claimant nor any cross- objection has been filed even after appearing as a respondent in this appeal.

Considering the rival submissions of the parties, this court examined the document. As per the case of the Insurance Company much has been harped upon the age of the deceased mentioned in the postmortem report, which the tribunal has not considered in view of the documentary evidence such as Exhibit-1 i.e. Receipt of policy No.544854250 and Exhibit -1/1 i.e. Receipt of policy No.544854250, which are life Insurance Policy receipt mentioning the date of birth of the deceased.

Post-mortem report is an assessment made by the doctor by naked eye, which is not based upon the radiological report or a scientific report, as such, the post-mortem report is only for the purpose of cause of death not the age of deceased. If a deceased has sustained injury on the face and scratch on the body then it is very difficult for any doctor to assess the age by seeing through naked eye in absence of any scientific report.

So far reliance placed by learned Tribunal on the Exhibit-1 and Exhibit-1/1 i.e. date mentioned in the receipt of Insurance Policy, this court also consider it to be a reliable documents. The date of birth can

only be ascertained on the basis of Class 10 th certificate or the first School going Admission Register, otherwise such document that is life Insurance Policy receipt mentioning the date of birth is acceptable to the court for the reason, at the time of the purchasing a policy, a person was not knowing that he is going to die in a motor accident, as such, no illegality has been committed by the learned Tribunal in considering the Exhibit-1 and 1/1 for consideration of age of the deceased.

Accordingly, the submission made by the learned counsel for the appellant is not acceptable to the court with regard to the age. So far the submission with regard to violation of terms and conditions of policy i.e. issue No. IV, in absence of any documentary evidence adduced before the learned Tribunal by the Insurance Company, such point is not available to the Insurance Company before the appellate court accordingly, this court is not inclined to accept the same.

So far enhancement is concerned, this Court is conscious of the ratio laid down by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another 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."

Since, the appeal has not been preferred by the Insurance Company against the quantum of compensation, as such, this court is not interfering with the same in absence of any appeal for enhancement or cross- objection preferred by the claimant.

Accordingly, the appeal being devoid of any merit is hereby dismissed.

The statutory amount deposited by the Insurance Company shall be remitted to the learned Tribunal by the learned Registrar General of this Court within a period of four weeks from today. The balance amount of compensation shall be indemnified by the Insurance Company to the claimant within a reasonable period as the accident is of dated 12.06.2009.

(Kailash Prasad Deo, J.) Jay/-