The New India Assurance Company ... vs Chandrama Vishwakarma & Others
2021 Latest Caselaw 1952 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 68 of 2018
                         ........

The New India Assurance Company Limited ..... Appellant Versus Chandrama Vishwakarma & Others .... ..... Respondents WITH M.A. No. 58 of 2021 ........

Manoj Singh                          ....        ..... Appellant
                             Versus

The New India Assurance Company Limited & Others .... ..... Respondents

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

For the Appellant : Mr. Manish Kumar, Advocate. For the Respondent Nos. 1 to 5 : Mr. Amit Kumar Tiwari, Advocate. For the Respondent No. 6 : Mr. Sidhartha Roy, Advocate [M.A. No. 68/2018] For the Appellant : Mr. Sidhartha Roy, Advocate For the Respondent No. 1 : Mr. Manish Kumar, Advocate.

[M.A. No. 58/2021] ........

08/21.06.2021.

Heard, learned counsel for the appellant-Insurance Company, Mr. Manish Kumar in M.A. No. 68/2018.

Learned counsel for the appellant-Insurance Company has submitted that the appellant-Insurance Company has preferred this appeal against the impugned award dated 17.11.2017 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in M.A.C. Case No. 68/2010, whereby the learned Tribunal has awarded compensation to the tune of Rs. 8,36,800/- along with interest @ 9% per annum from the date of admission of the claim application till its realization and further learned Tribunal has granted right to recover against the opposite party no. 1 Manoj Singh i.e. owner of the offending vehicle bearing registration no. JH-01T- 9296 after indemnifying the award.

Learned counsel for the appellant-Insurance Company has submitted that the appeal has been preferred mostly on the ground that the Insurance Company has pleaded in the written statement that the deceased Umesh Vishwakarma was travelling on the roof of the

offending vehicle, who sustained injury because of fall from the roof and died due to his own negligence.

The owner of the vehicle appeared through his counsel, but has not filed any written statement and owner was debarred from filing written statement vide order dated 21.07.2012.

Learned counsel for the appellant-Insurance Company has further submitted that the learned Tribunal has considered the income of the deceased to be Rs. 6,000/- contrary to the judgment passed by the Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), where the Apex Court has considered the income of the deceased in absence of any documentary proof, to be Rs. 5,000/- per month, as such, on the head of the income, the amount of compensation may be reduced.

Learned counsel for the appellant-Insurance Company has further submitted that the learned Tribunal has granted interest @ 9% per annum from the date of admission, which ought to have been @ 7.5% per annum from the date of filing of the claim application in view of the consistent view taken by this Court relying upon the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (4) JCR 79 (SC).

Learned counsel for the appellant-Insurance Company has thus submitted that after issuance of notice and after three years, the owner of the offending vehicle has preferred counter claim in the form of Miscellaneous Appeal i.e. M.A. No. 58/2021 with delay of 1145 days and for condonation of the same I.A. No. 2535/2021 has been preferred, as such, learned counsel for the appellant-Insurance Company has submitted that even if the entire document of the owner is accepted to be valid, then also because of violation of terms and conditions of the policy, the impugned award is sustainable in the eyes of law, as deceased Umesh Vishwakarma was travelling on the roof of the bus with several other persons, which is apparent from F.I.R. which has been brought on record as Exhibit-1,

in view of the judgment passed by the Apex Court in the case of Branch Manager, National Insurance Company Limited Vs. Giriraj Prasad Agrawal & Others passed in Civil Appeal No. 2421/2008, where right of recovery has been given to the Insurance Company and as such, this appeal is squarely covered under the aforesaid judgment.

Learned counsel for the appellant-Insurance Company has further submitted that the delay in filing the appeal by the owner of the vehicle may not be condoned, as it is an abnormal delay without explaining the same, just to frustrate the appeal of the Insurance Company and debar the claimant from the fruitful benefit of beneficial legislation.

Learned counsel for the claimants, Mr. Amit Kumar Tiwari has submitted that the learned Tribunal has rightly considered the income of Umesh Vishwakarma (Mason), who was travelling by the aforesaid offending vehicle, as in the case of Chameli Devi (Supra), the incident is of the year 2001, whereas the present incident is of the year 2009, as such, this Court may not interfere with monthly income of the deceased in a benevolent legislation.

Learned counsel for the claimants has further submitted that so far interest is concerned, it is true that this Court after considering the judgment of Dharampal & Sons (Supra) has considered the interest to be @ 7.5% per annum but from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act, as no reason has been assigned by the learned Tribunal to grant interest from the date of admission, as such, in that view, this Court may not interfere with interest @ 9% per annum from the date of admission, the same will remain more or less same, either interest @ 7.5% per annum from the date of filing of the claim application or @ 9% per annum from the date of admission of the claim application, as such, in a benevolent legislation, this Court may not interfere with the same.

Learned counsel Mr. Sidhartha Roy appearing for the owner of the offending vehicle in M.A. No. 58/2021 has submitted that though

there is delay of 1145 days in preferring the appeal by the owner, but reason has been explained in the interlocutory application.

Learned counsel for the owner of the offending vehicle has submitted that since owner could not get any information or knowledge about the disposal of the claim application on 17.11.2017 by the learned Tribunal, as such, he could not prefer appeal earlier and only after receiving notice issued by this Court in M.A. No. 68/2018, the owner of the offending vehicle has preferred this appeal before this Court.

Learned counsel for the owner of the offending vehicle has submitted that without any averment in the F.I.R. or evidence adduced by the claimants or the Insurance Company, the learned Tribunal has given wrong finding that the deceased was travelling on the roof of the bus.

Learned counsel for the owner of the offending vehicle has placed the F.I.R., which has been marked as Exhibit-1 and has submitted that from bare reading of the F.I.R., two views are possible, first, which the learned Tribunal has taken that the deceased was travelling on the roof of the bus, but that too, without any evidence, second that deceased was near the door of the bus which was opened or the bus was without door and he fell down because of sudden brake, as such the finding given by the learned Tribunal is on the basis of presumption which cannot be allowed to sustain by this Court in such situation, where an appeal has been preferred by the Owner.

Learned counsel for the Owner of the offending vehicle has submitted, that the deceased Umesh Vishwakarma was also negligent, if he was travelling on the roof of bus and there should have been deduction on the ground of contributory negligence, which the learned Tribunal has not considered.

To buttress his argument, learned counsel for the owner of the offending vehicle has placed reliance upon the judgment passed by the Hon'ble Division Bench of Madhya Pradesh High Court in the case of Manager, The Oriental Insurance Company Vs. Mantola &

Others in M.A. No. 1184/2002 and another judgment passed by the Hon'ble Single Bench of Hon'ble High Court of Judicature at Patna, in the case of Kalpana Devi & Others Vs. Jhagru Pandit in M.A. No. 521/2004 and has submitted that once a person is travelling on the roof of the bus, there shall be 50% deduction towards the contributory negligence, as such, this Court may set aside the impugned award.

Learned counsel for the New India Assurance Company, Mr. Manish Kumar has opposed the prayer and has submitted that though the learned Tribunal has noticed the owner, who has appeared before the learned Tribunal, is apparent from para-3 of the impugned award, but did not file written statement and thus debarred from filing written statement after a long time on 21.07.2012. Not only that he was also not cautious in pursuing his matter, there was no pleading before the learned Tribunal and owner has not preferred any appeal within time. It is admitted case that after issuance of notice by this Court in M.A. No. 68/2018 on 28.11.2018, the owner of the offending vehicle Manoj Singh has appeared on 23.01.2019, but no cross-objection has been filed rather only after order passed by this Court on 16.03.2021 in M.A. No. 68/2018, where certain observation has been made, the appeal has been preferred by the owner of the offending vehicle on 05.04.2021, with limitation petition vide I.A. No.2535/2021. The same was filed on 11.06.2021, as such, interlocutory application may not be allowed and delay may not be condoned. The owner of the offending vehicle was not vigilant in pursuing his case before the learned Tribunal. Even after notice, the owner has not taken prompt step. The reasons assigned in Paragraph-10 of the interlocutory application is not acceptable, on the ground that somehow in the month of January 2020, the owner-appellant could contact his counsel and got his counter affidavit filed in M.A. No. 68/2018 on 22.01.2020 is self contradictory and non-explnatory, as such delay may not be condoned.

Learned counsel, Mr. Manish Kumar appearing for the New India Assurance Company has further submitted that in absence of any pleading from the owner of the offending vehicle, the learned Tribunal has rightly taken view, that the deceased was travelling on

the roof of the bus. If two views are possible, the appellate Court cannot interfere on the ground of other possible view as held by the Frankfurter, J.(House of lords) in the case of J.J.O'Leary Vs. Brown-Pacific- Maxon Inc. reported in 95L Ed 483 and similarly cited in 340 US 504 (1950) and also the same view has been taken by the apex court in the case of Pallavan Transport Corporation Ltd Vs. M.Jagannathan reported in (2002) 9 SCC 728.

Learned counsel for the Insurance Company has further submitted that so far the appeal preferred by the owner of the offending vehicle with regard to right of recovery given by learned Tribunal is concerned, in view of the judgment passed by the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Others reported in (2004)13 SCC 224, Pappu Vs. Vinod Lamba reported (2018) 3 SCC 208 and National Insurance Co. Ltd. Vs. Swaran Singh reported in (2004) 3 SCC 297 and Branch Manager, National Insurance Company Limited Vs. Giriraj Prasad Agrawal & Others passed in Civil Appeal No. 2421/2008, this Court may not interfere with right to recovery given in favour of the Insurance Company as there is no pleading on behalf of owner of the offending vehicle even though he has appeared before the learned Tribunal, as such in absence of any pleading or evidence, this Court cannot presume and may not pass an order in a beneficial legislation.

So far the contributory negligence is concerned as assailed by the owner of the offending vehicle, learned counsel for the claimants, Mr. Amit Kumar Tiwari opposed the same and has submitted that deceased was a rustic villager, who was working as a Mason. He was travelling on the bus with the permission of the authorized person of the owner, as such there is no contributory negligence on the part of the deceased, as such, this Court may not interfere with the same.

After hearing the learned counsel for the parties, looking into facts and circumstances of the case, as both the appeals are arising out of common impugned award, this Court perused the impugned award. It appears that claimants have not preferred any appeal for enhancement of the award though under the heading of loss of

consortium to the tune of Rs. 40,000/- has not been paid by the learned Tribunal 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) 17 SCC 680 (paragraph-59.8). In such view of the matter and in view of the judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639, this Court cannot enhance the compensation in absence of any appeal preferred by the claimants for enhancement. Para-8 of the aforesaid judgment 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 owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.

This Court in a benevolent legislation is not interfering with the quantum of compensation as pleaded by the Insurance Company to decrease the quantum of compensation on the ground of the monthly income of the deceased by the learned Tribunal to the tune of Rs. 6,000/-. This Court has considered the submission made by learned counsel for the claimants that case of Chameli Devi (Supra) was of the year 2001 whereas the case in hand of Umesh Vishwakarma is of the year 2009, as such, this Court is not interfering with the same, keeping it in mind that no amount has

been paid under the heading of loss of consortium in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra).

So far interest @ 9% per annum granted by learned Tribunal is concerned, though this Court has taken consistent view granting interest @ 7.5% per annum in view of judgment passed by the Apex Court in the case of Dharampal & Sons (Supra), but it has rightly been pointed out by the claimants that interest ought to have been granted from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act, though the learned Tribunal is free to grant interest from the date of admission, from the date of settlement of issue or from the date of judgment, but for that, reason must be assigned. In absence of any reason given by learned Tribunal, this Court is not interfering with the same in a benevolent legislation as interest from the date of filing or from the date of admission with a difference of 1.5% will not make much change, as such, this Court is not inclined to interfere because if the loss of consortium is considered, compensation would be more or less same.

Accordingly, the miscellaneous appeal preferred by the Insurance Company i.e. M.A. No. 68/2018 is hereby dismissed.

So far Miscellaneous Appeal preferred by owner of the offending vehicle, Manoj Singh is concerned, since there is delay of 1145 days and statement made by the appellant in para-10 of I.A. No. 2535/2021 that somehow in the month of January 2020 the appellant could contact his counsel and got his counter affidavit filed in M.A. No. 68/18, is not acceptable to this Court as pursuant to the notice issued by this Court in terms of order dated 28.11.2018 passed in M.A. No. 68/2018, the owner of the offending vehicle has already appeared before this Court on 23.01.2019 by filing Vakalatnama.

Accordingly, the limitation petition i.e. I.A. No. 2535/2021 is hereby dismissed.

So far contention of owner of the offending vehicle with regard to finding recorded by the learned Tribunal that deceased was travelling on the roof of the bus is concerned, this Court has heard

the counsel for the appellant, Mr. Siddhartha Roy, who has placed Exhibit -1, the First Information Report. From perusal of the same, it appears that in absence of any pleading by the owner of the offending vehicle the learned Tribunal has rightly taken one of the possible view, as such this Court cannot set aside such view on the ground that other view is also possible as held by the House of Lords and Hon'ble Apex Court in the case of J.J.O'Leary (Supra) and Pallavan Transport Corporation Ltd (Supra).

Accordingly, the submission made by the learned counsel for owner of the offending vehicle is hereby rejected.

So far contributory negligence of the deceased is concerned, once a plea has been taken by owner of the offending vehicle that there is no violation of terms and condition of the policy of vehicle by the insured meaning thereby, he is not permitted to assail both the grounds which are contrary.

Learned counsel has submitted that deceased might have fallen on the road because of break applied by the driver as the vehicle has no door and he might have standing near the door or door may be opened. This court has perused the impugned award, where the learned Tribunal has recorded that the bus was over crowed, which is apparent from the charge sheet filed by the police.

So far the judgments relied by learned counsel for the owner of the offending vehicle with regard to contributory negligence i.e. Mantola & Others (Supra) and Kalpana Devi & Others (Supra) are concerned, the facts of aforesaid cases are different from the facts of the present case, as such they are not applicable in the facts of the present case.

Under the aforesaid circumstances, in absence of any pleading by owner of the offending vehicle with respect to the contributory negligence, this Court cannot set aside or alter the award passed by the learned Tribunal in a benevolent legislation in the view of the Apex court in the case of Ramchandra Vs. United India Insurance Co. Ltd. reported in (2013) 12 SCC 84 wherein the Apex Court held that the new plea or evidence cannot be adduced straightway before the high court at the appellate stage, without going through Motor

Accident claim Tribunal. However, the Apex Court in the catena of cases, in Divisional Controller, KSRTC Vs Mahendra Shetty reported in (2003) 7 SCC 197, National Insurance co. Ltd Vs Kusuma and Another reported in (2011) 13 SCC 306, Kajal Vs Jagdish Chand reported in (2020) 4 SCC 413, K.Suresh Vs. New India Assurance Co. Ltd. reported in (2012)12 SCC 274, R.K Malik and Kiran Pal reported in (2009) 14 SCC 1, National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680, Sarla Verma(Smt) Vs Delhi Transport Corporation and Another reported in (2009) 6 SCC 121, has held that compensation must be just and fair, it should neither a bonanza nor a windfall and simultaneously should not be a pittance. After perusal of the impugned award, it appears that learned Tribunal has awarded compensation of Rs.8,36,800/- along with interest @ 9% per annum from the date of admission of the claim application i.e. 15.07.2010 till its realization on death of young person aged about 26 years leaving behind his five dependents, as such, considering it to be a just and fair compensation, this Court is not inclined to interfere with the impugned award.

Since the limitation petition has already been dismissed, the appeal is also dismissed on merit.

So far right of recovery, which has been granted by the learned Tribunal in favour of the Insurance Company from owner of the offending vehicle is concerned that remains intact as explained above.

The Insurance Company is directed to indemnify the award within a reasonable period as the occurrence is of dated 16.10.2009.

The statutory amount deposited by the Insurance Company as well as owner of the offending vehicle in their respective miscellaneous appeals i.e. M.A. No.68/2018 and M.A. No.58/2021 be remitted to the learned Tribunal by learned Registrar General of this Court within a period of four weeks from today, which shall be paid to the claimants by the learned Tribunal / Executing Court after notice and due verification. The balance amount shall be paid by the

Insurance Company within a reasonable period as the occurrence is of dated 16.10.2009.

(Kailash Prasad Deo, J.) Sunil/-