Branch Manager vs Smt. Chinta Devi
2021 Latest Caselaw 271 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      [Civil Miscellaneous Appellate Jurisdiction]
                             M.A. No. 326 of 2014
          Branch Manager, National Insurance Company Limited, Giridih
                                                                     .... .. ...      Appellant(s)
                                       Versus
          1.Smt. Chinta Devi
          2.Santlal Choudhary
          3.Bhola Prasad
          4.Nandlal Mandal
          5.Prakash Mandal
          6.Pritam Mandal
          7.Shiv Nandan Kumar Sah
          8.Sri Jitendra Prasad                                      .. ... ... Respondent(s)
                                       With
                            M.A. No. 327 of 2014
          Branch Manager, National Insurance Company Limited, Giridih
                                                           .... .. ...          Appellant(s)
                                       Versus
          1.Smt. Rashmi Devi
          2.Santlal Choudhary
          3.Bhola Prasad
          4.Bhagirath Mandal
          5.Krishna Mandal
          6.Shiv Nandan Kumar Sah
         7.Sri Jitendra Prasad                                       .. ... ... Respondent(s)
                            ...........

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

       For the Appellant(s)             :     Mr. Pratyush Kumar, Advocate.
       For the Resps./Claimants :             Mr. Prakash Chandra, Advocate
                            ..........

10 / 19.01.2021. Heard, learned counsel for the parties.

Both the aforesaid Misc. Appeals have been preferred by the appellant- National Insurance Company Limited against the common judgment dated 20.05.2014 passed in analogous matter i.e. Title (MV) Claim Case No.63 of 2003 and Title (MV) Claim Case No.64 of 2003 passed by learned District Judge cum Motor Accident Claim Tribunal, Court No.III, Giridih.

Learned counsel for the appellant-National Insurance Company Limited, Mr. Pratyush Kumar has assailed the impugned award on two grounds :-(i)That though the deceased were pedestrian and they have been crushed because of collision between two heavy vehicles i.e. Truck bearing Registration No.UP64 9234 insured before the Oriental Insurance Company Limited and Truck bearing Registration No.JH11A 2782 insured before the appellant-National Insurance Company Limited. Learned Tribunal has not considered the contributory negligence of both the vehicles.

Learned counsel for the appellant has submitted that the learned Tribunal has

not considered the concept of contributory negligence nor distinguish the concept of composite negligence and contributory negligence.

Learned counsel for the appellant has further submitted that the learned Tribunal has not considered the difference between the composite negligence and the contributory negligence and thus fastened the liability upon the National Insurance Company Ltd., as such, this Court may apportion the liability upon both the Insurance Company as putting the liability against the National Insurance Company/appellant is unnecessary burden upon the Insurance Company (appellant). Learned Tribunal has also used wrong multiplier of 15, while computing the compensation because of wrong consideration of age of the deceased i.e. 40 years contrary to the age mentioned in the post-mortem report as 50 years in case of Janki Devi and 52 years in case of Satiya Devi, which has been brought on record as Exhibit-3 to 3/a (post-mortem report).

Learned counsel for the appellant-National Insurance Company Limited has submitted that interest has also been awarded @9% per annum from the date of award which ought to have been @7.5% per annum.

Learned counsel for the appellant has thus submitted that compensation may be reduced in accordance with law.

Learned counsel for the claimants, Mr. Prakash Chandra has opposed the prayer and has submitted that learned Tribunal has awarded fair and just compensation to the claimants and though the claimants have not preferred any appeal but, learned Tribunal has paid less amount under the conventional head as instead of Rs.70,000/- as held by Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680, learned Tribunal has only granted Rs.10,000/-.

Learned counsel for the respondents has further submitted that 9% interest has been paid from the date of award and not from the date of filing of the claim application. In view of Section 171 of the MV Act, the learned Tribunal is duty bond to pay the interest from the date of filing of the claim application, which is profitably quoted herein:-

"171. Award of interest where any claim is allowed- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."

However, if the learned Tribunal wants to differ with the date of filing while giving interest then it is upon the learned Tribunal to assign the reason for differing the date.

Learned counsel for the respondents has further submitted that though the

accident took place between the two vehicles, but the learned Tribunal has considered the concept of composite negligence and has rightly awarded the compensation.

Mr. Prakash Chandra has referred the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639, paras 6 and 8 of which is profitably quoted hereunder:-

"6.............................. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. ......................................................

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."

Learned counsel for the respondents has further submitted that since the appeal has not been preferred by the claimants for enhancement but admittedly the future prospect has not been given and less amount under the conventional head has been paid, as such, it would be appropriate for this Court to compute the compensation and if the compensation calculated by this Court is on higher side then the appeal preferred by the Insurance Company may be dismissed in absence of any appeal preferred by the claimants for enhancement.

After hearing the learned counsel for the parties and on the basis of materials brought on record, this Court exercises powers to compute the compensation afresh as no appeal has been preferred by the claimants.

It appears from the record that in an unfortunate accident, which took place on 23.04.2002, Satiya Devi and Janki Devi two unfortunate ladies standing by the side of road for purpose of boarding the bus were dashed by the truck bearing registration No.UP64-9234 and with another truck bearing registration No.JH11A- 2782, which were coming from the opposite direction and dashed against each other. The claim application has been filed by claimant, Rashmi Devi daughter of Late Janki Devi which was registered as Title MV Suit No.63 of 2003 and Chinta Devi for death of Satiya Devi which was registered as Title MV Suit No.64 of 2003. The vehicles were insured and as per the post- mortem report brought on record as

Exhibit-3 and 3/A of both the deceased, the age of the victim, Janki Devi and Satiya Devi have been mentioned as 50 and 52 years respectively. No document has been brought on record to establish the date of birth of Janki Devi and Satia Devi which could decipher that at the time of death they were 40 years old.

Under the aforesaid circumstances, this Court relying upon the same consider the age of the deceased- Janki Devi as 50 years and deceased- Satia Devi as 52 years.

Learned counsel, Mr. Prakash Chandra in support of his submission has placed the reliance upon the impugned judgment and he has specifically referred page no.9 of the same based upon the decision passed by the Apex Court in the case of National Insurance Company Ltd Vs. Swarn Singh, reported in (2004)3 SCC 297 wherein the Apex Court held :-

"Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the Said Act. (iii)The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the Insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duty licensed driver or one who was not disqualified to drive at the relevant time. The Insurance Companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the proceedings but must also establish 'breach' on the part of the owner of the vehicle: the burden of proof wherefore would be on them."

Further the learned Tribunal has taken note of while deciding the composite negligence and contributory negligence and the same has been referred at page nos.7 and 8 of the impugned award which is profitably quoted herein:-

'Composite negligence' refers to the negligence on the part of two or more per- sons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the com- posite negligence of those wrongdoers. In such a case, each wrongdoer is joint- ly and severally liable to the injured for payment of the entire damages and the injured person has to choice of proceeding against all or any of them. In such a Case, the injured need not establish the extent of responsibility of each wrong- doer separately, nor is it necessary for the court to determine the extent of lia-

bility of each wrongdoer separately.'

Under the aforesaid circumstances, the finding recorded by the leaned Tribunal directing the Insurance Company is not contrary to the law laid down by the Apex Court. In the case of composite negligence the claimant is entitled to get compensation from the Insurance Company of the truck bearing registration no.JH11A-2782.

Learned counsel for the claimant has further submitted that if age of the

deceased considered to be 50 years and 52, years in the case of Janki Devi and Satiya Devi then multiplier will change from 15 to 13 in the case of Janki Devi whose age was 50 years and 11 in the case of Satia Devi whose age was 52 years, but in that case this Court may also consider the future prospect of the deceased in view of the 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 well as National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 Learned counsel for the claimants/respondents has further submitted that less amount has been paid under the conventional head i.e. Rs.10,000/- instead Rs.70,000/- in view of the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 whereby (for the loss of Estate Rs.15,000/-, for loss of consortium Rs.40,000/- and for funeral expenses Rs.15,000/- is to be given). Apart from that the interest has been paid from the date of award not from the date of filing of the claim application in view of Section 171 of the MV Act, as such, it would not be proper for the Court to reduce the amount which is just and fair compensation.

Considering the rival submissions and in view of judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639.

In case of Title Claim Case No.63 of 2003 death of Janki Devi, the calculation made by this Court is as follows:-

Monthly income to be Rs.3,000/-, annual income = Rs.3,000/- x12 = Rs.36,000/- minus 1/3rd (deduction towards personal and living expenses) = Rs.24,000/- + future prospect @ 25% then total amount of Rs.30,000/- and then multiplier as 13 (Rs.30,000/- x 13) = Rs.3,90,000/- + Rs.70,000/- = Rs.4,60,000/- but since the appeal has not been preferred by the claimants, as such, there is every likelihood of the enhancement of the amount accordingly, the appeal preferred against the award dated 20.05.2014 passed in Title Claim Case No. 63 of 2003 is hereby dismissed.

Further calculation made with regard to claim case no.64 of 2003 with regard to deceased (Satia Devi) aged about 52 years income of Rs.3,000/- per month and annual income = 12x 3,000/- = Rs.36,000/- minus 1/3 rd (deduction towards personal and living expenses) = Rs.24,000/- then further prospect @ 10% then total amount will be Rs.26,400/- and multiplier as 11 (Rs.26,400/- x 11) = Rs.2,90,000/- + Rs.70,000/- (conventional head) = Rs.3,60,400/-, but learned Tribunal has awarded Rs.3,70,000/- along with 9% interest from the date of award and in case of new calculation compensation comes to Rs.3,60,000/- with 7.5% interest from the date of

claim application i.e. from the year, 2003.

Since, the instant appeal has been filed by the Insurance Company and the claimants has also pointed out other error in the quantum of compensation by the learned Tribunal, which has been taken into consideration by this Court in view of Ranjana Prakash (Supra) para-6, as such, this court is not inclined to reduce the same.

Accordingly, both the Miscellaneous Appeals are hereby dismissed. The statutory amount deposited by the Insurance Company in both the aforesaid Miscellaneous Appeals shall be remitted to the learned Tribunal within a period of four weeks.

It is expected that the alleged date of occurrence is 23.04.2002, as such, the Insurance Company shall indemnify the award in terms of the award passed by the learned Tribunal deducting the amount paid, if any, passed by the learned Tribunal.

(Kailash Prasad Deo, J.)

sandeep/R.S-