The Branch Manager vs Mary Bando & Others
2021 Latest Caselaw 2215 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 146 of 2018
                          ........

The Branch Manager, United India Assurance Co. Ltd.

.... ..... Appellant Versus Mary Bando & Others .... ..... Respondents WITH M.A. No. 143 of 2018 ........

The Branch Manager, United India Assurance Co. Ltd.

.... ..... Appellant Versus Mary Bando & Others .... ..... Respondents WITH M.A. No. 314 of 2018 ........

Mary Bando & Others                   .... ..... Appellants
                              Versus
Viddyapati Singh & Others             ....     ..... Respondents
                          WITH
                   M.A. No. 315 of 2018
                          ........
Mary Bando & Others                   .... ..... Appellants
                              Versus
Viddyapati Singh & Others             ....     ..... Respondents
                          ........

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

For the Appellant            : Mr. D.C. Ghosh, Advocate
For the Respondents          :
                               (In M.A.146/2018, M.A.143/2018)
For the Appellants           : Mr. Ravi Ranjan, Advocate

For the Respondent Nos. 2 &3 : Mr. D.C. Ghosh, Advocate.

(in M.A.314/2018, M.A. 315/2018) ........

07/06.07.2021.

Heard, learned counsel for the appellant, Mr. D.C. Ghosh, in M.A. No. 146/2018 and M.A. No. 143/2018 and learned counsel for the claimants, Mr. Ravi Ranjan in M.A. No. 314/2018 and M.A. No. 315/2018.

These four appeals are arising out of two claim applications filed before the Motor Vehicle Accident Claims Tribunal, Ranchi i.e. Motor Accident Claim Case No. 317/2011 with regard to death of Danial Bando @ Danial Lakra and Motor Accident Claim Case No. 318/2011 with regard to death of Polina Bando @ Polina Lakra, who lost their life in a motor accident on 08.03.2011 at about 2.00 P.M.,

while going on their motorcycle bearing registration no. JH-01T- 4806 driven by Danial Bando @ Danial Lakra along with pillion rider his wife Polina Bando @ Polina Lakra on NH-23.

Learned counsel for the appellant-Insurance Company has submitted that though Insurance Company has brought Exhibit-A to F before the learned Tribunal showing that the cheque issued by the owner namely, Viddya Pati Singh, son of Ganpat Singh, resident of Near Old Court, Ward No. 3, P.O. - Saharsa, District - Saharsa, Bihar, presently, residing at Ratu Road, P.O. + P.S. - Ranchi, District

- Ranchi (Owner of LPT 2515 Registration No. JH-01W-3765) has been dishonoured on 23.02.2011 and information regarding the same has been sent to the insured owner on 03.03.2011 and as such, the insurance coverage was also cancelled, but the learned Tribunal, while discussing issue, at page-12 has held that - "Therefore, I find and hold that it has been proved that, opposite party no. 2 has cancelled the insurance policy due to dishonour of the cheque but it has failed to duly inform to the insured owner of the offending vehicle before the alleged accident about cancellation of the insurance policy on account of dishonour of the cheque due to insufficient fund in his account, it has not taken steps properly in this regard."

Learned counsel for the appellant-insurance company has submitted that this fact can be ascertained by this Court sitting in an appeal by perusing the lower court records.

Learned counsel for the appellant-insurance company has submitted that on this ground the insurance company can claim, right of recovery from the owner of the offending vehicle as vehicle was not insured at the time of occurrence.

Learned counsel for the appellant-insurance company has further submitted that the notice was issued upon owner of the offending vehicle before the learned Tribunal, but inspite of service of notice / summons, the case has proceeded ex-parte against him vide order dated 06.06.2016 as mentioned at para-3 of the impugned award.

Learned counsel for the appellant-insurance company has further submitted that under the aforesaid circumstances, notice may be issued to the owner of the offending vehicle and L.C.R. may be called for.

Learned counsel for the appellant-insurance company has further submitted that so far quantum of compensation is concerned, nothing has to be agitated by the Insurance Company, but interest has been granted @ 9% per annum from the date of admission of the claim application under Section 166 of the Motor Vehicles Act i.e. 11.06.2014 till realization of the award, which is exorbitantly high and contrary to the spirit of law as envisaged under Section 171 of the Motor Vehicles Act and the judgment passed by the Apex Court passed in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (4) JCR 79 (SC), which ought to have been @ 7.5% from the date of filing of the claim application as this Court is also consistent about the interest.

Learned counsel for the appellant-insurance company has submitted that I.A. No. 2860/2020 has been filed in M.A. No. 146/2018 for stay of Execution Case being Miscellaneous M.A.C.T. Petition No. 105/2019 and I.A. No. 2861/2020 has been filed in M.A. No. 143/2018 for stay of Execution Case being Miscellaneous M.A.C.T. Petition No. 106/2019, as such, proper protection may be given to the Insurance Company.

Learned counsel for the appellants-claimants, Mr. Ravi Ranjan has submitted that against the award passed in M.A.C. Case No. 317/2011, the claimants have preferred M.A. No. 314/2018 with respect to the deceased Danial Bando @ Danial Lakra, whereas against the award passed in M.A.C. Case No. 318/2011, the claimants have preferred M.A. No. 315/2018 with respect to the deceased Polina Bando @ Polina Lakra. The M.A. No. 314/2018 has been preferred with delay of 45 days and for condonation of delay, I.A. No. 8695/2018 has been filed. The M.A. No. 315/2018 has been preferred with delay of 16 days and for condonation of delay, I.A. No. 8696/2018 has been filed.

Learned counsel for the appellants-claimants has submitted that in the case of deceased Danial Bando @ Danial Lakra, the learned Tribunal has considered less income. The claimants have adduced oral evidence with regard to the income of Danial Bando @ Danial Lakra to be Rs. 12,000/- per month, who was working as contractor, but the learned Tribunal has considered the income of the deceased Danial Bando @ Danial Lakra as Rs. 200/- per day in absence of any documentary evidence. Similarly, in the case of deceased Polina Bando @ Polina Lakra, who was vegetable seller, the claimants have claimed the income to be Rs. 8,000/- per month, but the learned Tribunal has erroneously considered the income of the deceased Polina Bando @ Polina Lakra to be Rs. 100/- per day, which is less and meagre amount and is not just and fair compensation, which is the aim and object of this benevolent legislation.

Learned counsel for the appellants-claimants has further submitted that apart from income, under the conventional head, Rs. 40,000/- has not been awarded by the learned Tribunal for the loss of consortium in view of 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 (Para-59.8), as such, the same may also be granted.

So far interest is concerned, which has been awarded from the date of admission of the claim application, learned counsel for the appellants-claimants has submitted that in view of Section 171 of the Motor Vehicles Act, it ought to have been granted from the date of filing of the claim application, otherwise, the learned Tribunal ought to have assigned reason for not granting interest from the date of filing of claim application by changing the same either from the date of admission or from the date of settlement of issue or from the date of closure of evidence or from the date of judgment, but there must be some reason, arbitrariness cannot be allowed in judicial system, as such, this Court may not interfere with the same as interest @ 9% per annum from the date of admission will remain the same, if it is

awarded @ 7.5% per annum from the date of filing of the claim application, which was filed on 20.10.2011.

Learned counsel for the appellants-claimants has thus submitted that this Court may direct the Insurance Company to satisfy the award.

Learned counsel for the United India Insurance Company, Mr. D.C. Ghosh has submitted that though as per the judgment passed by the Apex Court, the Insurance Company has to indemnify the awarded amount, which shall be realized from the owner of the vehicle, if there is violation of Section 149(2) of the Motor Vehicles Act and from that the Insurance Company cannot escape.

Learned counsel for the United India Insurance Company has further submitted that notice may be issued to the owner of the Offending Vehicle and right of recovery may be granted in favour of the Insurance Company.

From perusal of the miscellaneous appeals, it appears that two questions are relevant for adjudication of these appeals before this Court:-

(i) Whether right of recovery is to be given to the Insurance Company or not, which has been denied by the learned Tribunal, and

(ii) What is the quantum of compensation paid to the claimants.

So far question no. (i) is concerned that can only be adjudicated after appearance of owner, but so far question no. (ii) is concerned, that can be adjudicated here as the learned Tribunal has decided the award ex-parte, as such, this Court adjudicate the question no. (ii).

Learned counsel for the United India Insurance Company has submitted that even though for proper adjudication of question no.

(ii), notice may be issued to the Owner of the Offending Vehicle.

Considering the same, let notice be issued in all the appeal to the owner of the Offending Vehicle namely, Viddyapati Singh, Son of Ganpat Singh, Resident of Near Old Court, Ward No. 3, P.O. -

Saharsa, District - Saharsa, Bihar, Presently, residing at Ratu Road, P.O. + P.S. - Ranchi, District - Ranchi (Owner of LPT 2515 Registration No. JH-01W-3765), under both process i.e. under registered cover with A/D as well as under ordinary process, for which requisites etc. must be filed by the appellants of all the four miscellaneous appeals within one week. The notice under ordinary process shall be served through the Officer-in-Charge of the local Police Station, if requires after verifying the address from the District Transport Officer, Ranchi. The Officer-in-Charge shall also file an affidavit before this Court with respect to service of notice upon the owner of the Offending Vehicle for his appearance.

The Owner of the Offending Vehicle shall appear before this Court to defend his case.

In the meantime, the appellant-Insurance Company is directed to deposit entire awarded amount along with interest as awarded by learned Tribunal before the learned Tribunal / Executing Court within 60 days from today, through two drafts separately in M.A. No. 146/2018 and M.A. No. 143/2018. Half of the awarded amount as awarded by the learned Tribunal shall be disbursed to the claimants after due notice and verification and half of the awarded amount shall be deposited in the fixed deposit scheme by the learned Tribunal so as to protect the financial loss to the claimants or the Insurance Company at the time of final adjudication, as there is chances of reduction in interest from @ 9% to @ 7.5%. Though, there is chances of enhancement of quantum of compensation with respect to the income of both the deceased in both the appeals, apart from Rs. 40,000/- under the heading of loss of consortium.

If the amount is deposited within 60 days by the Insurance Company, the learned Tribunal / Executing Court shall not proceed in the matter of execution of the award and to that effect affidavit shall be filed by the Insurance Company.

Accordingly, I.A. No. 2860/2020 and I.A. No. 2861/2020 are hereby allowed.

Put up these appeals after service of notice.

In the meantime, office is directed to call for the L.C.R. of both the claim cases.

However, parties are at liberty to file application for early hearing of these appeals.

(Kailash Prasad Deo, J.) Sunil/-