Jharkhand High Court
Sbi General Insurance Co. Ltd vs Rekha Devi & Others on 16 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 108 of 2018
........
SBI General Insurance Co. Ltd. .... ..... Appellant
Versus
Rekha Devi & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellant : Mr. Ashutosh Anand, Advocate.
For the Respondent Nos. 1 to 4 : Mr. Rahul Dev, Advocate.
: Mr. Varun Prabhakar, Advocate.
: Mr. Bhasker Trivedi, Advocate.
For the Respondent No. 5 : Mr. Sharvan Kumar, Advocate.
........
05/16.03.2021.
Heard, learned counsel for the appellant, Mr. Ashutosh Anand.
The SBI General Insurance Co. Ltd. has preferred this appeal
against award dated 07.12.2017 passed by learned District Judge-III-cum-
Motor Vehicles Accident Claims Tribunal, Jamshedpur in Compensation
Case No.142/2016, whereby the claimants namely, (1) Rekha Devi (2)
Piyush Ranjan (3) Poonam Kumari and (4) Neelam Kumari have been
awarded compensation to the tune of Rs.10,42,000/- alongwith interest @
6% per annum from the date of filing of the claim application till payment.
However, the ad-interim amount of compensation paid under Section 140
of the M.V. Act shall be deducted.
Learned counsel for the appellant has submitted that brief fact of
the case is that deceased, Kishore Kumar Gupta was travelling on a
motorcycle bearing registration No. JH05-AR-1571 from his home at
about 10.00 A.M., then one Hiva bearing registration No. JH05-BD-9696
dashed the motorcycle from the back side. The injured was shifted to
TMH, where doctor declared him dead.
Learned counsel for the appellant has assailed the impugned award
on the ground that in absence of appearance of the owner of the Hiva,
even after notice, the proceeding was heard ex-parte, as such, the
Insurance Company could not examine the document with regard to
adjudication of issue no. III i.e. whether owner of the vehicle has violated
any terms and condition of the Insurance Policy including requirement of
valid driving licence?
Learned counsel for the appellant has submitted that since the
owner has not appeared, the Insurance Company could not agitate this
issue before learned Tribunal, as such, Insurance Company may be given
liberty to agitate the issue before the Tribunal against the owner and if the
Insurance Company prove the same against the owner, the right of
recovery may be given against the owner.
Learned counsel for the appellant has further submitted that the
contributory negligence has not been decided by the learned Tribunal in
correct perspective.
Learned counsel for the appellant has further submitted that the
quantum of compensation has been paid on higher side, as such, it may be
reduced.
Learned counsel for the claimant nos. 1 to 4, Mr. Rahul Dev, Mr.
Varun Prabhakar and Mr. Bhasker Trivedi have submitted that the learned
Tribunal has not granted future prospect. Learned Tribunal has considered
less income than claimed by the claimants and has paid less interest,
though they have fairly submitted that they have not preferred any appeal
for enhancement of the award.
Learned counsel, Mr. Sharvan Kumar has appeared for the owner of
the offending vehicle.
Considering the submission made by learned counsel for the
appellant, Mr. Ashutosh Anand, this Court has considered that learned
Tribunal has rightly held in para-9 at page -8 of the impugned judgment
that Insurance Company has failed to discharge its burden of proof
regarding violation of terms and conditions of Insurance policy by the
Hiva, as such, the right of recovery cannot be granted at this stage.
So far contributory negligence is concerned, from perusal of para-2
of the impugned award, it appears that Hiva has dashed the motorcycle
from the back, as such, the case of contributory negligence is also not
made out and no evidence was made by the Insurance Company with
respect to contributory negligence, as such, this Court is not inclined to
interfere with the same.
So far quantum of compensation is concerned, this Court is
conscious of legal position, in view of the ratio laid down by the Apex
Court in the case of of Ranjana Prakash & Others Vs. Divisional Manager
& Another reported in 2011 (14) SCC 639 para-8 of 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 the owner/insurer
for reduction. The High Court cannot obviously increase the
compensation in an appeal by the owner/insurer for reducing the
compensation, nor can it reduce the compensation in an appeal by the
claimants seeking enhancement of compensation."
In this appeal preferred by the Insurance Company against the
quantum of compensation, this Court has to examine the compensation
afresh. The future prospect in the present case has not been calculated and
the interest has also been paid on the lower side @ 6% per annum contrary
to 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), but this Court has considered that it would not be proper to
enhance the compensation in absence of any appeal preferred by the
claimants for enhancement, accordingly, considering the same, this Court
is not inclined to interfere in the appeal preferred by the appellant on the
question of quantum of compensation.
Accordingly, the instant appeal is dismissed.
The statutory amount deposited by the Insurance Company shall be
remitted to the learned Tribunal, so as to indemnify the part compensation
and the balance amount along with interest shall be indemnified by the
Insurance Company within a reasonable period as the accident is of dated
25.01.2016.
(Kailash Prasad Deo, J.)
Jay/-
