Jharkhand High Court
The Divisional Manager vs Kusum Devi & Others on 22 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 509 of 2015
........
The Divisional Manager, the New India Assurance Co. Ltd., Ranchi
.... ..... Appellant
Versus
Kusum Devi & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellant : Mr. K. L. Ojha, Advocate.
For the Respondent Nos. 1 & 2 : Mr. Saibal Mitra, Advocate.
For the Respondent No. 3 : Mr. N.K. Sahani, Advocate.
........
08/22.01.2021.
Heard, learned counsel for the appellant, Mr. K.L.Ojha,
learned counsel for respondents-claimants, Mr. Saibal Mitra and
learned counsel for the respondent No.3 (owner of bus No. BR-20-P-
2544), Mr. N.K. Sahani.
Learned counsel for the claimants has submitted that whatever
relief prayed by Insurance Company - appellant that can only be
against the owner of the offending vehicle insured before it i.e. bus
bearing registration No. BR-20-P-2544, as such, this appeal may be
heard and Truck TATA-407 bearing registration No. JH-01P-9455
was insured before the Bajaj Allianz General Insurance Company,
for which the appeal may not be kept pending.
Learned counsel for the appellant has submitted that the appeal
may be heard on merits as the appellant is only aggrieved of the 50%
of the awarded amount passed against it, as appellant is the insurer of
one of the offending vehicle bearing registration No. BR-20-P-2544.
It appears that the main contest is between the appellant -
Insurance Company and the claimants and counsel for both the
parties are present and ready for disposal, as such, let the case be
heard on merits.
Heard, learned counsel for the parties.
Learned counsel for the appellant, Mr. K. L. Ojha has assailed
the impugned award dated 02.09.2015 passed by learned District
Judge - I - cum - Motor Vehicles Accident Claims Tribunal, Bokaro
in T.M.V. No. 41/2009, whereby the claimants have been awarded
compensation to the tune of Rs. 11,60,000/- along with 6% interest
apportioned upon both the Insurance Companies i.e. appellant - New
India Assurance Co. Ltd. and other Bajaj Allianz General Insurance
Company Ltd., insurer of TATA-407 bearing registration No. JH-01P-
9455. The learned Tribunal has further directed that if any,
compensation has been paid by any of the defendants under Section 140
of Motor Vehicles Act, the same shall be deducted from the
compensation so adjudged above to the extent of Rs. 25,000/- each only.
Learned counsel for the appellant has submitted that learned
Tribunal has wrongly granted 40% future prospect to the claimants
while the deceased was aged about 44 years and as such, in view of
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-59.4), the future prospect ought to
have been 25% for the age group of the deceased 40-50 years.
Learned counsel for the appellant has submitted that learned
Tribunal has wrongly granted medical expenses incurred towards the
treatment of deceased to the tune of Rs.97,000/- without any valid
document.
Learned counsel for the appellant has submitted that though
the learned Tribunal has granted liberty to the defendant no.4 i.e. the
Divisional Manager, the New India Assurance Co. Ltd. (appellant) to
get the dispute settled with regard to plea of breach of policy
regarding plying of the offending vehicle, by adjudicating the same
before the competent authority under law, by making the owner of
the offending vehicle as defendant and also to realize the
compensation so paid in view of the award to the claimants.
Learned counsel for the appellant has submitted that under the
aforesaid circumstances this court may adjudicate the same.
Learned counsel for the claimants, Mr. Saibal Mitra has
submitted that 50% of the awarded amount has already been
indemnified by the Bajaj Allianz General Insurance Company Ltd.
the insurer of TATA-407 bearing registration No. JH-01P-9455, as
such, in view of payment made by the Bajaj Allianz General
Insurance Company Ltd., this court may not interfere with the same
and liberty has already been given to the appellant - the New India
Assurance Co. Ltd. to recover the same against the owner by proving
that there was a violation of terms and conditions of the policy by
not plying the vehicle on the basis of permit, as such, this Court may
not interfere with the same.
After hearing learned counsel for the parties and looking into
fact and circumstances of the case, learned Tribunal has granted 40%
future prospect to the deceased, who was self-employed died at the
age of 44 years and as such, in view of judgment passed by the Apex
Court in the case of Pranay Sethi (Supra), it ought to have been
25% and interest has been granted @ 6% per annum from the date of
application of the compensation, but no appeal has been preferred by
the claimants for enhancement of the award, as such, it would be
proper to consider the issue raised by learned counsel for the
appellant.
Since admittedly 40% future prospect has been given by the
learned Tribunal, which comes to Rs.19,000/- as discussed in
paragraph-18 of the impugned judgment, if the same is reduced to
25%, then that will come around Rs.12,000/-, the difference is
Rs.7,000/-. If the same is multiplied with 14 as a multiplier, the
amount comes to Rs.98,000/-, out of which 50% has been fixed as
liability of the appellant i.e. Rs.49,000/-, but the interest has been
paid @ 6% per annum, which ought to have been @7.5% in view of
the judgment passed Apex Court in the case of Dharampal and Sons
Vs. U.P. State Road Transport Corporation reported in 2008 (4)
JCR 79 (SC). Since the occurrence is of dated 06.12.2008, the
application was filed in the year 2009, as such, this Court is not
inclined to interfere with the same, considering it to be just and fair
compensation as, no contrary evidence has been brought on record
either documentary or during cross-examination by the Insurance
Company.
One of the Insurance Company Bajaj Allianz General
Insurance Company Ltd. has already indemnified the part of
compensation amount passed by learned Tribunal without assailing
the same, as such, it would be not proper for this Court to change the
quantum of compensation. As such, being benevolent legislation, this
Court is not inclined to interfere with the impugned Award.
Accordingly, the appeal is disposed of considering it to be just
and fair compensation.
The statutory amount deposited by the appellant shall be
remitted to the court below.
The balance amount shall be paid to the claimants within a
reasonable period.
However, the right which has been given by the learned
Tribunal in favour of the Insurance Company, defendant no.4, the
New India Assurance Company Ltd. so far with regard to the
violation of terms and conditions of the policy, they are at liberty to
agitate the issue before the learned Tribunal impleading the owner as
a party. The right remains untouched by this Court.
Since the main appeal has already been disposed of, I.A.
No.3055/2019 and I.A. No.9553/2019 are closed.
(Kailash Prasad Deo, J.)
Jay/-
