Branch Manager vs Shanti Devi & Others
2021 Latest Caselaw 1064 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 110 of 2015
                          ........

Branch Manager, Oriental Insurance Co. Ltd., Ranchi .... ..... Appellant Versus Shanti Devi & Others .... ..... Respondents WITH M.A. No. 109 of 2015 ........

Branch Manager, Oriental Insurance Co. Ltd., Ranchi .... ..... Appellant Versus Budhwa Oraon @ Bhagat & Others .... ..... Respondents

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

For the Appellant : Mr. Bibhash Sinha, Advocate. For the Respondent Nos. 3 & 4 : Mr. Rajiv Anand, Advocate. For the Respondent No. 5 : Mrs. Nirupama, Advocate. For the Respondent No. 7 : Mr. G.C. Jha, Advocate.

[In M.A. No. 110/2015] For the Appellant : Mr. Bibhash Sinha, Advocate. For the Respondent Nos. 1 to 3 : Mr. Rajiv Anand, Advocate. For the Respondent No. 6 : Mr. G.C. Jha, Advocate.

........

06/03.03.2021.

Both the appeals are taken up together, as both are arising out of a common accident. Both the appeal have been preferred by Oriental Insurance Company Limited against the claimants of both the appeals.

M.A. No. 110/2015 has been preferred by Oriental Insurance Company Limited against the award dated 11.11.2014 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No. 53/2007, whereby the respondents / claimants namely, Shanti Devi, wife of Late Ranthu Mahli and Mate Mahli, Son of Dhodhe Mahli have been awarded compensation to the tune of Rs. 3,74,000/- along with interest @ 9% per annum from the date of admission i.e. from 22.07.2008 to be paid within one month from the date of receipt of copy of the judgment, failing which the interest @ 12% per annum shall be paid from the date of judgment till realization of the amount. The Oriental Insurance Company Ltd. shall pay the entire compensation amount as awarded after deducting the payment, if any, made under Section 140 of the

Motor Vehicles Act with right to recover from the O.P. No. 3 namely, Md. Minhaz Ansari, son of Md. Ayub @ Aqub Ansari, resident of Village - Lawalong, P.S. - Simariya, Chatra, at present Noora, P.O. & P.S. - Noora, Hazaribag (Owner of the Commander Jeep No. BHM-8576) and O.P. No. 6 namely, Md. Mumtaz, son of Late Jamaluddin, resident of Village - Fulsu, P.S. - Balumath, District - Latehar (Driver of the Commander Jeep No. BM-8576).

M.A. No. 109/2015 has been preferred by Oriental Insurance Company Limited against the award dated 11.11.2014 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No. 48/2007, whereby the respondents / claimants namely, Budhwa Oraon @ Bhagat, son of Late Pero Bhagat, Smt. Bhekho Orain @ Bhagat, Wife of Budhwa Oraon @ Bhagat and Basanti Orain @ Bhagat, Wife of Late Mangal Deo Oraon @ Bhagat along with two minor children of the deceased, have been awarded compensation to the tune of Rs. 9,54,000/- along with interest @ 9% per annum from the date of admission i.e. from 05.06.2008 to be paid within one month from the date of receipt of copy of the judgment, failing which the interest @ 12% per annum shall be paid from the date of judgment till realization of the amount. The Oriental Insurance Company Ltd. shall pay the entire compensation amount as awarded after deducting the payment, if any, made under Section 140 of the Motor Vehicles Act with right to recover from the O.P. No. 3 namely, Md. Minhaz Ansari, son of Md. Ayub @ Aqub Ansari, resident of Village - Lawalong, P.S. - Simariya, Chatra, at present Noora, P.O. & P.S. - Noora, Hazaribag (Owner of the Commander Jeep No. BHM-8576) and O.P. No. 6 namely, Md. Mumtaz, son of Late Jamaluddin, resident of Village - Fulsu, P.S. - Balumath, District - Latehar (Driver of the Commander Jeep No. BM-8576).

Learned counsel for the appellant, Mr. Bibhash Sinha has assailed the impugned award on the ground that the learned Tribunal has considered the contributory negligence of Piaggio Tempo No. JH-01K-2941 and Commander Jeep bearing no. BHM-8576. The

Piaggio Tempo No. JH-01K-2941 is admittedly insured before the Oriental Insurance Company Limited, but while considering the Insurance Policy with respect to Commander Jeep bearing registration no. BHM-8576, the learned Tribunal has committed an error and granted right to recover in favour of the Oriental Insurance Company Limited from the Owner Md. Minhaz Ansari and driver Md. Mumtaz of another offending vehicle i.e. Commander Jeep bearing registration no. BHM-8576.

Learned counsel for the appellant has submitted that the said vehicle Commander Jeep bearing registration no. BHM-8576 was duly insured before the New India Assurance Co. Ltd., as such, the finding recorded by the learned Tribunal may be modified with an additional clause that if the Commander Jeep bearing registration no. BHM-8576 is insured with the New India Assurance Co. Ltd., then the appellant - Oriental Insurance Co. Ltd. has right to recover 50% of the compensation from the New India Assurance Co. Ltd.

To buttress his argument, learned counsel for the appellant, Mr. Bibhash Sinha has placed reliance upon para-17 of the impugned judgment, which is profitably quoted here:

"17. One very important question comes with regards to the claim made by the O.P. No. 4 that the insurance policy of the commander jeep is fake and not genuine. Very unfortunately the owner or the driver of the second vehicle has not put appearance despite the publication of notice and the insurance company has come with a certificate that the policy number as brought on record is forged and no such policy was issued from Hazaribagh Branch the O.P. No. 4. Ext.-A has been brought on record but again it is unfortunate that Ext-A is with reference to the insured namely Rajendra Sahu. While Rajendra Sahu is the insured of the Piaggio tempo and not the Commander Jeep. While insured of the Commander Jeep is Md. Minhaz Ansari. Such defect in Ext-A makes the same doubtful, but still in the document Ext-A, it has been mentioned that no such policy was issued by the Office of New India Assurance Co. Ltd. Since the owner of the driver of the offending vehicle has not appeared and since the O.P. No. 4 has come with a certificate by the insurance company with regard but non-issuance of such policy this tribunal comes to the

conclusion that the O.P. No. 4 is not liable to indemnify the O.P. No. 3 and 6. Under such circumstances, the O.P. No. 3 and 6 shall be liable under the head of contributory negligence such liability is joint and several and the claimants has always liberty to recover amount from any of the O.P. who shall be entitled to recover the same proportionately from other persons who are liable. In above view of the matter this tribunal holds that the claimants is entitled to recover the amount from the O.P. No. 2 with liberty to the O.P. No. 2 to recover the same proportionally from the O.P. No. 3 and 6. Thus, this question is also decided accordingly."

Learned counsel for the appellant has thus submitted this right of recovery may be granted in favour of the Oriental Insurance Company Ltd. from New India Assurance Co. Ltd. after proving his case that Commander Jeep bearing registration no. BHM-8576 was duly insured before the New India Assurance Co. Ltd., otherwise the Oriental Insurance Co. Ltd. has difficulty to recover the same from the owner Md. Minhaz Ansari and driver Md. Mumtaz, as such, that part of the order may be modified.

Learned counsel for the New India Assurance Company Limited, Mr. G.C. Jha, has placed reliance upon para-11 of the impugned judgment and has submitted that while passing an order under Section 140 of the Motor Vehicles Act, the opposite party no. 4, the Branch Manager, New India Assurance Company Ltd. has been exonerated from liability to pay compensation and it is Opposite Party No. 3 Md. Minhaz Ansari, Owner and Opposite Party No. 6 Md. Mumtaz, driver are held liable to pay compensation to the claimants or the Oriental Insurance Company Limited in whose favour right of recovery has been granted.

Learned counsel for the New India Assurance Company Limited has further relied upon para-7 of the impugned judgment and has submitted that this Court may not modify that part of the order. Para-7 of the impugned judgment is profitably quoted hereunder:-

"7. On behalf of the O.P. No. 4 one Kiran Shanker Chakravorty has been examined and in his evidence this witness has stated that the policy of the second vehicle i.e. commander

Jeep which has been brought on record was verified and was found to be a fake policy. No such policy was issued from Hazaribagh Branch of New India Assurance Co. Ltd. He has proved the document it is marked Ext-A. In cross-examination this witness says that that the document which is on record bears seal of the insurance company. At para-11 he says that personally had made search and verification of the policy and that in the disputed policy the name is of insured Rajendra Sahu and Rajendra Sahu had not made payment of any premium. Evidence has been closed on behalf of the O.P."

Learned counsel for the New India Assurance Company Limited has submitted that so far other ground with regard to quantum of compensation awarded to claimants in both the compensation case is concerned, under the conventional head, excess amount has been paid as Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards love and affection contrary to the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (paragraph-59.8) reported in (2017) 16 SCC 68, it ought to have been Rs. 70,000/- i.e. loss of estate Rs. 15,000/-, loss of consortium Rs. 40,000/- and funeral expenses Rs. 15,000/-.

Apart from that, interest has been granted @ 9% per annum which may be reduced. It ought to have been granted @7.5% per annum in view of 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 claimants, Mr. Rajiv Anand has vehemently opposed the prayer and has submitted that though the claimants have not preferred any appeal for enhancement of the award, but if the quantum has been assailed by appellant - Oriental Insurance Company Limited then this Court may consider the compensation as just and fair, 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 (Para-8), which 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.

Learned counsel for the claimants has further submitted that though in Compensation Case No. 48/2007, the compensation has been claimed on the basis of income of the deceased Mangal Deo Oraon @ Bhagat to be Rs. 3,000/- per month, who lost his life at an age of 18 years, leaving behind five dependents and learned Tribunal has also considered income of Mangal Deo Oraon @ Bhagat to be Rs. 3000/- per month, but in Compensation Case No. 53/2007, the compensation has been claimed on the basis of income of the deceased Ranthu Mahli to be Rs. 3,500/- but the learned Tribunal has considered it to be Rs. 3,000/- in absence of any documentary evidence, where deceased died at the age of 57 years, leaving behind four dependents, as such in Compensation Case No. 53/2007, this Court may consider the monthly income of the deceased to be Rs. 3,500/- per month instead of Rs. 3,000/-, in view of ratio laid by the Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 (SC), where the income of a Carpenter in absence of any documentary evidence for an accident which took place in the year 2002 has been considered to be Rs. 5,000/-, as such, in Compensation Case No. 53/2007 which relates to

Late Ranthu Mahli the income ought to have been considered as per claim to be Rs. 3,500/- per month.

So far the change of amount under conventional head is concerned, learned counsel for the claimants, Mr. Rajiv Anand has submitted that the same will not bring a drastic change in quantum of compensation, as such this Court may not interfere with the same.

Learned counsel for the respondent / claimants Mr. Rajiv Anand has further submitted that since the interest has been questioned by appellant - Oriental Insurance Company Limited, as such it would be incumbent upon this Court to peruse Section 171 of Motor Vehicles Act, which reads hereunder:

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.

Learned counsel for the respondent / claimants Mr. Rajiv Anand has further submitted that no reason has been assigned by the learned Tribunal while granting interest from the date of admission and not from the date of filing of claim cases. As such, this Court in absence of any evidence brought on record by the appellant - Oriental Insurance Company may shift the same from the date of institution of claim application before the learned Tribunal.

Learned counsel, Mrs. Nirupama on the instruction of Mr. Anil Kumar Sinha appears on behalf of the owner of the Piaggio Tempo No. JH-01K-2941 Rajendra Sahu. She has fairly submitted that Rajendra Sahu's case is not under dispute as Piaggio Tempo No. JH- 01K-2941 is admittedly insured before the appellant - Oriental Insurance Company Limited and there is no pleading that any violation of Section 149(2) of the Motor Vehicles Act has been committed by the Insured, as such, she has nothing to say in the matter.

Considering the rival submissions of the parties and looking into facts and circumstances of the case, this Court is deciding the

first issue that whether right to recover which has been granted by the learned Tribunal to the appellant Oriental Insurance Company Limited to recover the same from the Owner and driver of the Commander Jeep bearing registration no. BHM-8576 namely, Md. Minhaz Ansari and Md. Mumtaz respectively or that part can be modified by giving right to recover from the Insurer of the Commander Jeep bearing registration no. BHM-8576 i.e. New India Assurance Company Ltd, if the Oriental Insurance Company Limited is able to satisfy the competent Court that the Commander Jeep bearing registration no. BHM-8576 was duly insured.

So far the contention, which has been raised by the learned counsel for the New India Assurance Company Limited Mr. G.C. Jha is concerned, if the vehicle Commander Jeep having registration no. BHM-8576 is duly insured before New India Assurance Company Ltd. and if it is proved by the appellant Oriental Insurance Company Limited, but even after proving the Insurance, then also, in case there is violation of terms and conditions of the policy as envisaged under Section 149(2) of the Motor Vehicles Act, such right be given to the New India Assurance Company Ltd. to recover the same from the owner and driver of Commander Jeep bearing registration no. BHM-8576.

In case, the appellant - the Oriental Insurance Company Limited fails to prove that Commander Jeep bearing registration no. BHM-8576 is insured before the New India Assurance Company Limited then right to recover which has been granted by the learned Tribunal to the Oriental Insurance Company Limited to recover the compensation amount after indemnifying the same from the owner and driver of the Commander Jeep bearing registration no. BHM- 8576 namely, Md. Minhaz Ansari and Md. Mumtaz shall remain intact.

So far the issue with regard to 50% of contributory negligence is concerned, it appears that the involvement of both the vehicles was 50% as such, learned Tribunal has granted Oriental Insurance Company Limited to recover 50% of the amount from the owner

and driver of the Commander Jeep bearing registration no. BHM- 8576, as finding recorded by the learned Tribunal on the basis of Exhibit-A is not with regard to the Commander Jeep, rather it is with regard to the Piaggio Tempo No. JH-01K-2941, whose owner's name is Rajendra Sahu, as such, considering a wrong appreciation by the learned Tribunal and considering the order passed by the learned Tribunal under Section 140 of the Motor Vehicles Act which was not adjudicated on the basis of the evidence, this Court interferes with the same and modify the right of recovery in following manners:- (1) If the vehicle is insured i.e. Commander Jeep bearing registration no. BHM-8576 before the New India Assurance Company Limited and it is proved by the Oriental Insurance Company Limited before the learned Tribunal then the Oriental Insurance Company can recover 50% of the awarded amount from the New India Assurance Company limited.

(2) If even after proving Insurance by the Oriental Insurance Company Limited, the liability will upon the New India Assurance Company Limited to prove that there is violation of Section 149(2) of the Motor Vehicles Act by the Owner of the Commander Jeep bearing registration no. BHM-8576, then New India Assurance Company may recover the same from owner and driver of the offending vehicle Md. Minhaz Ansari and Md. Mumtaz, but if the Oriental Insurance Company Limited fails to prove insurance of vehicle against the New India Assurance Company, then right of recovery which has been given by the learned Tribunal from the owner and driver Md. Minhaz Ansari and Md. Mumtaz of Commander Jeep bearing registration no. BHM-8576 shall remain intact, as such, this part of the order is modified and remitted to the learned Tribunal to frame these three issues:-

(i) Whether Commander Jeep bearing registration no. BHM-8576 is insured before the New India Assurance Company Limited as alleged by the Oriental Insurance Company Limited?

(ii) Whether the owner and driver Md. Minhaz Ansari and Md. Mumtaz of Commander Jeep bearing registration no. BHM-

8576 violated any terms and conditions of the policy?

(iii) If the terms and conditions of the Insurance Policy has been violated, then right to recover shall be granted in favour of the New India Assurance Company Limited.

As such, this part of the order is modified with framing of these three issues and the matter is remitted to the learned Tribunal where both the Insurance Company shall appear on 06.04.2021. The Tribunal shall issue notice to Md. Minhaz Ansari, son of Md. Ayub @ Aqub Ansari, resident of Village - Lawalong, P.S. - Simariya, Chatra, at present P.O. & P.S. - Noora, Hazaribag (Owner of the Commander Jeep No. BHM-8576) and driver Md. Mumtaz, son of Late Jamaluddin, resident of Village - Fulsu, P.S. - Balumath, PDistrict - Latehar (Driver of the Commander Jeep No. BM-8576). However, this remand shall not prejudice the interest of the claimants. The award shall be indemnified by the Oriental Insurance Company Limited by 31.03.2021.

So far the second issue with regard to quantum of compensation in M.A. No. 109/2015 arising out of Compensation Case No. 48/2007 is concerned, the deceased Late Mangal Deo Oraon @ Bhagat, lost his life at the age of 18 years, leaving behind five dependents and claimants have claimed the income of the deceased to be Rs. 3,000/- per month, but admittedly under the conventional head, Rs. 2, 25,000/- has been paid, contrary to the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.8), as such, there is scope of interference by this Court and fresh calculation for just and fair compensation is hereunder:-

Income                            Rs. 3,000/- per month
Annual Income                     Rs. 3,000/- x 12 = Rs. 36,000/-
40% future prospect               Rs. 36,000/- + Rs. 14,400/-
Pranay Sethi (Para- 59.4)         = Rs. 50,400/-

1/4th deduction towards personal Rs. 50,400/- x 1/4 = Rs. 12,600/-

and living expenses
Sarla Verma (Para-30)
Total Income                      Rs. 50,400/- - Rs. 12,600/-
                                  = Rs. 37,800/-

Multiplier of 18 (as the deceased Rs. 37,800/- x 18 = Rs. 6,80,400/-

was in the age group of 15-20
years) Sarla Verma (Para-42)
Conventional Head                  Rs. 70,000/-
Pranay Sethi (Para-59.8)
Total Compensation Amount          Rs. 6,80,400/- + Rs. 70,000/-
                                   = Rs. 7,50,400/-

The amount paid under Section 140 of the Motor Vehicles Act to the tune of Rs. 50,000/- shall be deducted, if already paid by the Insurance Company, then Rs. 7,00,400/- (Rs. 7,50,400-Rs. 50,000) shall be paid alongwith interest @ 7.5% in view of the judgment passed by the Apex Court in the case of Dharampal and Sons (Supra) from the date of filing of the claim application as no reason has been assigned by the learned Tribunal. In view of Section 171 of the Motor Vehicles Act, if no reason has been assigned in a benevolent legislation, this Court consider the date only from the date of filing of the claim application.

So far M.A. No. 110/2015 arising out of Compensation Case No. 53/2007 is concerned, the deceased Ranthu Mahli was working as a labourer and died at the age of 57 years, leaving behind two dependents, the claimants have claimed the income of the deceased to be Rs. 3,500/-, but the learned Tribunal without any reason in absence of documentary evidence has considered the income of the deceased to be Rs. 3000/-. This Court consider the ratio laid down by the Apex Court in the case of Chameli Devi (Supra) and consider the income of the deceased to be Rs. 3500/- as in the case of Late Mangal Deo Oraon i.e. in Compensation Case No. 48/2007, the claimants have claimed Rs. 3000/- as income of the deceased, which was accepted by the learned Tribunal, as such, this Court also consider that Rs. 3500/- ought to have been accepted by learned Tribunal in view of the ratio laid down by the Apex Court in the case of Chameli Devi (Supra) in absence of any documentary evidence and fresh calculation for just and fair compensation is hereunder:-

Income                             Rs. 3,500/- per month
Annual Income                      Rs. 3,500/- x 12 = Rs. 42,000/-
10% future prospect                Rs. 42,000/- + Rs. 4,200/-
Pranay Sethi (Para- 59.4)          = Rs. 46,200/-

1/3rd deduction towards personal Rs. 46,200/- x 1/3 = Rs. 15,400/- and living expenses (Dependents shall two only Shanti Devi, Sarla Verma (Para-30) wife of Late Ranthu Mahli and Mate Mahli, son of Dhodhe Mahli as Madhu Mahli, son of late Ranthu Mahli and Surajpati Devi, wife of Madhu Mahli are not dependent upon Late Ranthu Mahli as no evidence has been adduced by the claimants that they are dependents.) Total Income Rs. 46,200/- - Rs. 15,400/-

= Rs. 30,800/-

Multiplier of 9 (as the deceased Rs. 30,800/- x 9 = Rs. 2,77,200/-

was in the age group of 56-60
years) Sarla Verma (Para-42)

Conventional Head                  Rs. 70,000/-
Pranay Sethi (Para-59.8)
Total Compensation Amount          Rs. 2,77,200/- + Rs. 70,000/-
                                   = Rs. 3,47,200/-

The amount paid under Section 140 of the Motor Vehicles Act to the tune of Rs. 50,000/- shall be deducted, if already paid by the Insurance Company, then Rs. 2,97,200/- (Rs. 3,47,200-Rs. 50,000) shall be paid alongwith interest @ 7.5% in view of the judgment passed by the Apex Court in the case of Dharampal and Sons (Supra) from the date of filing of the claim application as no reason has been assigned by the learned Tribunal. In view of Section 171 of the Motor Vehicles Act, if no reason has been assigned in a benevolent legislation, this Court consider the date only from the date of filing of the claim application.

So far penal interest is concerned, since the appeal has been preferred before this Court with delay, but the same has been condoned, as such penal interest granted by the learned Tribunal is set aside.

Accordingly, the matter is remitted for the first part and so far second part is concerned, claimants of Compensation Case No. 48/2017 namely, Budhwa Oraon @ Bhagat, Smt. Bhekho Orain @ Bhagat and Basanti Orain are entitled for Rs. 7,00,400/- along with simple interest @ 7.5% per annum from the date of filing of the claim application, if Rs. 50,000/- has already been paid under Section 140 of the Motor Vehicles Act, otherwise Rs. 7,50,400 along with interest @ 7.5% from the date of filing of the claim application.

So far the Compensation Case No. 53/2007 is concerned, the claimants Shanti Devi and Mate Mahli are entitled for Rs. 2,97,200/- along with interest @ 7.5% per annum from the date of filing of the claim application, if Rs. 50,000/- has been paid under Section 140 of the Motor Vehicles Act otherwise, Rs. 3,47,200/- along with simple interest @ 7.5% from the date of filing of the claim application.

Accordingly, both the appeals are hereby disposed of. The statutory amount deposited by the appellant in both the miscellaneous appeals shall be remitted by the Registrar General of this Court to the learned Tribunal / Executing Court to indemnify the part of the compensation amount. The balance amount shall be indemnified by Oriental Insurance Company Limited by 31.03.2021 as the occurrence was of dated 21.12.2005, failing which, the Branch Manager, Oriental Insurance Company Ltd., Ranchi shall not withdraw salary till payment of the amount.

(Kailash Prasad Deo, J.) Sunil/-