National Insurance Co. Ltd vs Heera Jhari Devi & Others
2021 Latest Caselaw 272 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 43 of 2020
                          ........

National Insurance Co. Ltd. .... ..... Appellant Versus Heera Jhari Devi & Others ...... ..... Respondents

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

For the Appellant                  : Mr. Alok Lal, Advocate.
For the Respondents                : Mr. Jitesh Kumar, Advocate.
                     ........
03/19.01.2021.
I.A. No.1107/2020

Learned counsel for the appellant has submitted that there is delay of 115 days in preferring the appeal for condonation of the same I.A. No.1107/2020 has been filed. The reason has been assigned in the interlocutory application.

It appears that there is delay of 115 days in preferring the appeal and for condonation of delay, I.A. No.1107/2020 has been filed.

Since no counter affidavit has been filed in the limitation matter, even though learned counsel has appeared on behalf of the claimants, the delay in filing the appeal is hereby condoned.

I.A. No.1107/2020 is allowed.

M.A. No. 43 of 2020 Heard, learned counsel for the appellant, Mr. Alok Lal and learned counsel for the respondents, Mr. Jitesh Kumar.

Learned counsel for the appellant has submitted that the appeal has been preferred by the National Insurance Company Ltd. against the award dated 05.07.2019 passed by learned District Judge -XIII- cum- Motor Accident Claims Tribunal, East Singhbhum, Jamshedpur in Compensation Case No.147/2018, whereby the claimants namely, (1) Heera Jhari (58 years) (2) Mithilesh Kr. Singh (42 years) (3) Anil Kr. Singh (38 years) (4) Ravi Shankar Singh (36 years) (5) Hari Shankar Singh (30 years) (6) Asha Kumari (34 years) and (7) Kanti Singh (32 years) have been awarded compensation to the tune of Rs.8,70,000/- along with interest @ 6% per annum from the date of

filing of this complaint case i.e. 21.08.2018 till the date of actual payment.

Learned counsel for the appellant, Mr. Alok Lal has submitted that learned Tribunal has wrongly granted compensation to the dependents without deducting the tax component from the annual income i.e Rs.20,000/- per month and Rs.2,40,000/- per annum in view of the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 paragraph-59.4 and Vimal Kanwar and Others Vs. Kishore Dan and Others reported in (2013) 7 SCC 476 para 23,profitabley quoted herein -

23. In Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] this Court held: (SCC p. 133, para 20) "20. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation."

This Court further observed that: (SCC p. 134, para 24) "24. ... Where the annual income is in taxable range, the words 'actual salary' should be read as 'actual salary less tax'." Therefore, it is clear that if the annual income comes within the taxable range, income tax is required to be deducted for determination of the actual salary. But while deducting income tax from the salary, it is necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head "salaries" one should keep in mind that under Section 192(1) of the Income Tax Act, 1961 any person responsible for paying any income chargeable under the head "salaries" shall at the time of payment, deduct income tax on estimated income of the employee from "salaries" for that financial year. Such deduction is commonly known as tax deducted at source ("TDS", for short). When the employer fails in default to deduct the TDS from the employee's salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1-A) of the Income Tax Act, 1961. Therefore, in case the income of the victim is only from "salary", the presumption would be that the employer under Section 192(1) of the Income Tax Act, 1961 has deducted the tax at source from the employee's salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However, there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary, and the annual income falls within taxable range, in such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income.

Learned counsel for the appellant has further submitted that no proof of income has been given by the claimants, but the learned Tribunal has considered the income to be Rs.20,000/- per month, as such, Rs.2,40,000/- per annum.

Learned counsel for the appellant has submitted that with regard to right of recovery, the owner has not appeared even after notice and as such, the document with regard to the valid driving licence of the driver of the offending vehicle as well as permit of the vehicle have not been brought on record, as such, this Court may consider the same and notice the owner of the offending vehicle, so as to adjudicate the issue in view of the judgment passed by the Hon'ble Apex Court in the case of Amrit Paul Singh v. TATA AIG General Insurance Co. Ltd., (2018) 7 SCC 558. Para-24 of the aforesaid judgment is profitably quoted hereunder:-

"24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Lakhmi Chand [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a

matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and other cases pertaining to pay and recover principle."

Learned counsel for the appellant has further submitted that it was incumbent upon the learned Tribunal to adjudicate the issue, which has not been admitted by the Insurance Company in view of Section 170 of the Motor Vehicles Act, 1988, which reads as follows:-

"170. Impleading insurer in certain cases.--Where in the course of any inquiry, the Claims Tribunal is satisfied that--

(a) there is collusion between the person making the claim and the person against whom the claim is made, or

(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made."

Learned counsel for the appellant has further submitted that there is non-compliance of Section 134 of the Motor Vehicles Act, 1988, which reads as follows:-

"134. Duty of driver in case of accident and injury to a person.-- When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall--

(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure

medical attention for the injured person, by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities, unless the injured person or his guardian, in case he is a minor, desires otherwise;

(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause

(a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence;

(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely:--

(i) insurance policy number and period of its validity;

(ii) date, time and place of accident;

(iii) particulars of the persons injured or killed in the accident;

(iv) name of the driver and the particulars of his driving licence. Explanation.--For the purposes of this section the expression "driver"

includes the owner of the vehicle."

Learned counsel for the respondents / claimants, Mr. Jitesh Kumar has submitted that he has already filed caveat in this matter vide Caveat Petition No.179 / 2020 and has supported the impugned order.

Learned counsel for the respondents / claimants has submitted that Section 134 of the Motor Vehicles Act as relied by the learned counsel for the appellant is neither the duty of the claimants nor the duty of the Court, the same is duty of driver of the offending vehicle, in case of accident and injury to a person, if the driver of the vehicle has not discharged his duty, the Insurance Company cannot assail the same without agitating the issue before the learned Tribunal under the Provisions of Rule 235 of the Bihar (Now Jharkhand ) Motor Vehicles Rules, 1992, which reads as follows:-

"235. Examination of opposite party.- The opposite party may and if so required by the Claims Tribunal, shall at or

before the first hearing or within such time as the Claims Tribunal may permit, file a written statement dealing with the claim raised in the application, and any such written statement shall form part of the record, provided that in case of an application in which the claim does not exceed Rs. 10,000/- the opposite party shall, on the date mentioned in the notice sent to him, file his written statement dealing with the claim raised in the application together with all the documents and affidavits for the proof of those documents and of facts on which he relies in support of his defence of the application entered in a properly prepared list of documents, affidavits and shall give to the applicant copies of the written statement, documents and affidavits:

Provided further that the Claims Tribunal may not allow the opposite party to rely in support of his defence, on any document or affidavit not filed along with the written statement, unless he satisfies the Claims Tribunal that for good or sufficient cause he was prevented from filing such document or affidavit, as the case may be, alongwith his written statement.

(2) If the opposite party contests the claim, the Claims Tribunal may, and if no written statement has been filed, shall proceed to examine him upon the claim and shall reduce the result of the examination in writing."

Learned counsel for the respondents / claimants has submitted that no application has been filed by the Insurance Company seeking leave under Section 170 of the Motor Vehicles Act for a direction upon the owner -cum- driver to produce the document required. Unless and until the Insurance Company filed the petition before the Tribunal along with written statement on affidavit, as no such plea has been taken by the Insurance Company before the learned Tribunal, they cannot take such plea in the court of appeal.

Learned counsel for the respondents / claimants has submitted that it is true that tax component has not been deducted, but no contrary evidence has been brought on record by the Insurance Company to assail that deceased has no income. The learned Tribunal after considering the material available on record, has

passed the order, as such, this Court may not interfere with the same in view of the judgment passed by the Hon'ble Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639 (para-8).

Heard, learned counsel for the parties, the fact of the case is that on 09.02.2018 at about 9.30 P.M. deceased, Kameshwar Singh had gone for a walk, but did not return. The family members went for his search, but he was not found and again on 10.02.2018 at 6.00 A.M. search was made by the family members, they got information that the deceased was lying dead in a ditch and sustained injuries in his head and other parts of the body. The people present there told that on last night at about 20.00 P.M. one Trailer bearing registration no. NL-02N-7830 being driven rashly and negligently by its driver dashed the deceased and broken the divider of the road.

Telco Police reached there and took the deceased to T.M.H., who was declared dead. The accident occurred due to rash and negligent act of the driver of Trailer No. NL-02N-7830. On the basis of written information of the informant Mithilesh Kr. Singh, Telco P.S. Case No.25/2018 was registered against the driver of vehicle Trailer bearing registration no. NL-02N-7830. After investigation police has submitted charge-sheet in this case against the accused, Md. Shamim, driver of Trailer under Section 279 and 304'A' of I.P.C.

The deceased was working in Tata Steel in its Security Works Department and after retirement, he was doing his own business of supply of Security Guards in different sectors under the name of M/s Gautam Industrial Security Consultants & Investigator from which deceased had earning Rs.20,000/- per month.

So far the factum of the case is concerned, that has not been disputed by the Insurance Company, though notice has been issued to the opposite parties, but owner of the vehicle - O.P. No.1, Dharm Pal Singh has not appeared and the case was fixed against him ex- parte in terms of order dated 18.02.2019.

The National Insurance Company Limited, O.P. No.2, has

appeared and filed show-cause stating therein that the applicant be called upon to prove the case strictly by oral as well as documentary evidence. The Insurance Company has also taken a plea that opposite party has got no ability to indemnify insured in the event if it would be found that the insured has violated any of terms and condition of the said policy, but no application has been filed under Rule 235 of the Bihar (Now Jharkahnd) Motor Vehicles Rules, 1992, which reads as follows:-

"Provided further that the Claims Tribunal may not allow the opposite party to rely in support of his defence, on any document or affidavit not filed along with the written statement, unless he satisfies the Claims Tribunal that for good or sufficient cause he was prevented from filing such document or affidavit, as the case may be alongwith his written statement."

In absence of any document filed by the Insurance Company under the provisions of Rules 235 of the Bihar (Now Jharkahnd) Motor Vehicles Rules, 1992, this Court is not inclined to accept the contention of the appellant.

So far the submission made on behalf of the appellant with regard to the tax component, this Court also concurs with the views taken by learned counsel for the appellant in view of the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (Supra) paragraph-59.4 and Vimal Kanwar (supra) para -23.

Since the deceased was self employed and earning Rs 20,000/- monthly and Rs 2,40,0000/- annually, the tax component of the deceased to be considered in accordance with the IT slab and Tax rate for the assessment year 2018-19( as the accident took place on dt 09.02.2018).The IT slab and Tax rate for the assessment year 2018-19 was nil upto Income of Rs 2,50,000/-,as such, the annual income of the deceased i.e Rs 2,40,000/- which is outside the purview of taxable income required no interference. Thus, no deduction is liable to be made from the established income and this

court is not inclined to reduce the same.

This Court restrain itself from interfering with the same considering it to be a benevolent legislation.

Under the aforesaid circumstances, this Court is not inclined to interfere with the impunged judgment considering it to be just and fair compensation to the family of the deceased.

Accordingly, the instant Miscellaneous Appeal being devoid of any merit is dismissed.

The statutory amount deposited by the Insurance Company shall be remitted to the court below. The balance amount shall be paid by Insurance Company within a reasonable time as it is a benevolent legislation.

Accordingly, I.A. No.1992/2020 filed for stay of the execution proceeding is closed as final order has been passed.

(Kailash Prasad Deo, J.) Jay/-