Jharkhand High Court
The Oriental Insurance Company ... vs Bibha Devi on 8 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Miscellaneous Appellate Jurisdiction]
M.A. No. 113 of 2015
The Oriental Insurance Company Ltd., Ranchi .... .. ... Appellant(s)
Versus
1.Bibha Devi
2.Suggi Devi
3.Niraj Kumar Mahato
4. Puspa Kumari
5.Kanchan Prasad .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant(s) : Mr. G. C. Jha, Advocate.
For the Respondent(s) : Mr. Tarun Kr. Sinha, Advocate
..........
06 / 08.03.2021. Heard, learned counsel for the parties.
Learned counsel for the appellant has submitted that appellant- The Oriental
Insurance Company Ltd. has assailed the impugned award dated 11.12.2014
passed by learned Presiding Officer, Motor Vehicle Accident Claims Tribunal,
Ranchi in Compensation Case No.228 of 2012 whereby, claimants, 1.Bibha Devi,
2.Suggi Devi, 3.Niraj Kumar Mahto and 4. Puspa Kumari have been awarded a
compensation to the tune of Rs.10,45,000/- after deducting Rs.50,000/- paid under
Section 140 M.V. Act along with interest @9% from the date of admission of the
application under Section 166 M.V. Act i.e. from 26.11.2013 till the date of
payment which shall be made within one month from the date of receipt of the
copy of the judgment, failing which, the interest @12% per annum from the date
of judgment shall be payable.
Learned counsel for the appellant has assailed the impugned award on three
counts;
(i) That earlier the claimants have preferred PLA Case Nos.1907/06
and 1908/06 in which they have been awarded Rs.2 Lacs. Subsequently
after withdrawing those PLA cases, they have preferred Motor Vehicle
Claim Case, as such, issue has already been decided between the parties and
the present proceeding is hit by principle of res judicata;
(ii)That under the conventional head, the learned Tribunal has paid
Rs.2,25,000/- contrary to the judgment passed by the Apex Court in the case
of National Insurance Company Limited vs. Pranay Sethi, reported in
(2017) 16 SCC 680, at Para-59.8 [Loss of Estate- Rs.15,000/-, Loss of
Consortium- Rs.40,000/- and Funeral expenses-Rs.15,000/-], as such, the
excess amount (Rs.2,25,000-Rs.70,000/-) i.e. Rs.1,55,000/- may be
deducted; and
(iii) That interest has been awarded on higher side i.e. @9% from
the date of admission and if the judgment/ award is not honoured within a
period of 30 days then @12% which is contrary to the judgment passed by
the Apex Court in the case of Dharmpal and Sons vs. UP State Road
Transport Corporation, reported in 2008(4) JCR 79 SC, as such, the same
may be taken note of, when modifying the impugned award.
Learned counsel for the appellant has further submitted that there is
contributory negligence on the part of both the offending vehicles as there is a
head-on collision between the vehicles. The other vehicle including insurance
company of that vehicle were party in PLA proceeding, but they have not been
impleaded as party in the present claim case, even after taking such pleading by
the appellant-Insurance Company in the written statement, no issue has been
framed by the learned Tribunal, as such, the contributory negligence may be
considered by this Court.
Learned counsel for the respondents/claimants while opposing the same has
submitted that so far res judicata is concerned, the same has been considered by
the learned Tribunal in Para-8 where PLA Case Nos.1907/06 and 1908/06 have
been permitted to be withdrawn to file a claim case before the competent court of
law, as such, plea of res judicata is not coming in the way of the present claim
case. Learned Tribunal has further considered that aspect of the matter in Para-20
of the impugned judgment and the amount of Rs.2 Lacs has already been deducted
in the present claim case from the quantum of compensation assessed by the
learned Tribunal, as the same has already been paid to the claimants.
Learned counsel for the respondents/claimants has further submitted that
though the interest is prerogative of the learned Tribunal to grant, but whatever the
Court thinks proper, it shall be granted to the claimants in view of the judgment
passed by the Hon'ble Supreme Court.
Learned counsel for the respondents/claimants has opposed the contributory
negligence agitated by the learned counsel for the appellant- Insurance Company
and submitted that though the Insurance Company has taken a plea in the written
statement, but no such issue was suggested at the time of framing of issue nor the
Insurance Company has challenged the framing of the issue before any competent
court of law.
Learned counsel for the respondents/claimants has further submitted that
even though the issue has not been framed, but in absence of any evidence
adduced by the Insurance Company, the entire grounds taken by the appellant
have become meaningless. Learned counsel has thus, submitted that since no
evidence has been brought on record, the same cannot be allowed to agitate at this
stage.
Considering the rival submissions of the Parties, this Court considers that
plea of res judicata which has been taken by the learned counsel for the appellant
has already been taken note of by the learned Tribunal at Para-8 and since the
PLA Case Nos.1907/ 06 and 1908/ 06 were permitted to be withdrawn on the
ground that claimants can file a claim application before the competent court of
law, as such, the plea of res judicata is not hindrance to the claimants.
Accordingly, the first objection raised by the counsel for the appellant is not
acceptable to this Court.
So far contributory negligence is concerned, the same is not supported by
any evidence adduced by the insurance Company, as such, this Court is not
inclined to interfere with the same in absence of any material on record.
So far the conventional head is concerned, this Court considers the
impugned judgment in Para-18 in the light of the judgment passed by Apex Court
in the case of Pranay Sethi (supra) at Para-59.8 as instead of Rs.2,25,000/-, the
claimants are only entitled for Rs.70,000/- [i.e. Loss of Estate as Rs.15,000/-, Loss
of Consortium as Rs.40,000/- and Funeral expense as Rs.15,000/-].
Accordingly, this part of the order is modified to the extent that under the
conventional head instead of Rs.2,25,000/-, it should be Rs.70,000/-. So there
shall be a deduction of Rs.1,55,000/- under this head.
So far interest is concerned, in view of the judgment passed by the Apex
Court in the case of Dharmpal and Sons Vs. UP State Road Transport
Corporation, reported in 2008(4) JCR 79 SC as well as Section 171 of the M.V.
Act, 1988, this Court considers that no reason has been assigned by the learned
Tribunal for granting the interest from the date of admission, as such, in view of
Section 171 of the M.V. Act, 1988 this shall be considered from the date of
institution/filing of the claim application till the date of indemnifying the award
with simple interest @7.5% per annum.
Accordingly, the instant Misc. Appeal stands disposed of, with only
direction that instead of Rs.10,45,000/-, the total amount of compensation shall be
[Rs.10,45,000/- minus Rs.1,55,000/-] Rs.8,90,000/- along with interest @7.5% per
annum from the date of filing of the claim application till the date of indemnifying
the award. However, the amount already paid shall be deducted by the insurance
Company and rest amount shall be paid within a reasonable time.
The statutory amount deposited by the appellant-Insurance Company before
this Court at the time of preferring the instant Misc. Appeal shall be remitted by
the learned Registrar General of this Court to the learned Tribunal within a period
of four weeks and the balance amount along with interest as awarded by this
Court, if not already paid shall be deposited before the learned Tribunal/Executed
Court by the appellant-Insurance Company within a reasonable time, as the
accident is of dated 02.05.2006.
(Kailash Prasad Deo, J.)
Sandeep/
