Reliance General Insurance ... vs Smt. Anita Singh
2021 Latest Caselaw 4340 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               M.A. No. 11 of 2015
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Reliance General Insurance Company Limited, having its Office at 38G, Jawahar Lal Nehru Road, 8th Floor, Kolkata 700071, having its Registered Office at Reliance Centre 19, Walchand Hirachand Marg, Ballard Estate, Mumbai 400001, through its Branch Manager Sri Pankaj Kumar Singh ... Appellant

-versus-

     1. Smt. Anita Singh
     2. Kumari Rishika
     3. Sri Satrudhan Singh
     4. Smt. Neelam Singh
     5. Sri Vikram Singh Grewal                          ...    Respondents
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                 CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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           For the Appellant :  Mr. Amit Kumar Das, Advocate
                                Ms. Swati Shalini, Advocate
           For the Respondents: Mr. Alok Lal, Advocate
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19/ 23.11.2021    Heard learned counsel for the appellant and counsel appearing on

behalf of the claimants. Be it noted that despite valid publication of notice, owner of the vehicle has not appeared, so this appeal is taken up exparte. It is also clear from the impugned award that before the Tribunal also, owner of the vehicle did not appear.

2. This appeal has been preferred by the Reliance General Insurance Company Limited against the award dated 20th September, 2014 passed by the District Judge II-cum-M.A.C.T. Judge, Dhanbad in Title (M.V.) Suit No.285 of 2012.

3. Learned counsel appearing on behalf of the Insurance Company has raised only three points in support of the appeal. It has been submitted that the driver of the offending vehicle bearing registration No. WB 25D 5760 did not have a valid driving licence at the time of accident. It has been submitted that this statement has been specifically mentioned in paragraph 12 of the written statement, which has not been rebutted. Learned counsel submits that since the driver did not have a valid licence and there was no rebuttal, right to recovery should have been given to the Insurance Company to recover the compensation amount from the owner of the vehicle. Second point which has been raised is in respect of the deduction on account of personal expenses. It has been argued that the deceased has left behind the widow, minor child and parents. It is the case of the Insurance Company that since the father of the deceased is already working, the mother of the

deceased should be treated to be dependent on the father, thus, the deduction on account of personal expenses should be 1/3rd, considering that the direct dependents are widow and minor daughter. Last point, which has been raised, is that on the conventional head, Rs.1,30,000/- has been granted as compensation in place of Rs.70,000/- as per the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited versus Pranay Sethi & Others reported in (2017) 16 SCC 680.

4. Mr. Alok Lal, appearing on behalf of the claimants, submits that the wife of the deceased, was examined as a witness and she has categorically stated that her father-in-law and mother-in-law were dependent upon her deceased husband. Learned counsel takes this Court through the deposition of the said witness. It is the case that since father-in-law and mother-in-law were dependent upon the deceased, as per the judgment delivered by the Hon'ble Supreme Court in the case of Smt. Sarla Verma & Others versus Delhi Transport Corporation & Another reported in (2009) 6 SCC 121, as the dependents were more than 4 in number, 1/4th was correctly deducted on account of personal expenses. So far as compensation under conventional head is concerned, he submits that judgment of Pranay Sethi (supra) will govern the issue. On the point of right to recover, he submits that he is not aggrieved by the aforesaid issue, rather it is dispute between the owner of the vehicle and the Insurance Company.

5. After hearing the counsel for the parties, I have gone through the impugned judgment and entire Lower Court Record. Considering the scope and the dispute, which has been raised in this appeal, it is needless to deal with how accident had occurred and what would be the income of the deceased and other aspects. I am confining this judgment only upon the points which have been raised by the appellant.

6. The Hon'ble Supreme Court in the case of Sarla Verma (supra) has held that when the deceased has left behind dependents, which are 4 to 6 in number, 1/4th should be deducted as personal expenses of the deceased. In this case, admittedly, deceased has left behind widow and minor daughter. He has also left behind father and mother. It is the case of the appellant that since the father of the deceased is earning, the mother of the deceased cannot be treated to be dependent on the deceased. He submits that in presence of the father, mother should be treated to be dependent on her husband and not on the son. To assess this issue, I have gone through the evidence led by the

parties. P.W.1 Anita Singh is the claimant and the widow. In paragraph 6 of her examination, she has stated that the deceased has left behind herself, her minor daughter, her father-in-law and mother-in-law. She has categorically stated that all these persons were dependent upon the deceased. In paragraph 8 of her cross examination, she stated that her father-in-law used to be a contractor. This statement clearly suggests that the father-in-law and mother-in-law were dependent upon the deceased. The Insurance Company has not brought any document on record to suggest that at the relevant time, father-in-law of the claimant was still working as a contractor. Considering the aforesaid evidence, I hold the father-in-law and mother-in-law as dependents of the deceased. That being so, the deduction of 1/4th on account of personal expenses of the deceased is correct.

7. So far as the compensation on account of conventional head is concerned, admittedly, Rs.1,30,000/- has been granted to the claimant. In terms of the judgment of Pranay Sethi (supra), an amount of Rs.70,000/- is payable under this head. Thus, I find that the Tribunal has awarded Rs.60,000/- more than what it should have awarded under the aforesaid head. Thus, this Court holds that claimants are entitled to receive Rs.70,000/- instead of Rs.1,30,000/- under the aforesaid head.

8. So far as right to recovery is concerned, I find that in the written statement at paragraph 12, the Insurance Company has specifically taken a stand that the driver of the vehicle bearing registration No. WB 25D 5760 did not have any valid and effective driving licence on the date of accident. From the judgment, I find that the Tribunal has also framed an issue to the aforesaid effect. Issue No.4, which the Tribunal has framed is as under: -

"4. Whether the driver, who was driving Hywa Truck No.WB-25D-5760 had valid and effective driving licence at the time of accident?"

9. In a trial, issues are framed on the basis of pleadings of the parties. These issues, which are framed, are decided on the basis of evidence led. After the issues are framed, it remains open to any of the parties to support the same issue or to withdraw from the same. In this case, I find from paragraph 9 of the impugned award that the parties have not pressed the issue No.4. This means that the Insurance Company has withdrawn from their plea and has not pressed the aforesaid issue. When the aforesaid issue has not been pressed, the Court was not bound to answer the aforesaid issue. By not pressing the aforesaid issue, the Insurance Company has back tracked

from their pleading. Thus, this Court is of the opinion that when the Insurance Company has given up the said plea of valid driving licence by not contesting the issue, they cannot raise the plea before the Appellate Court. Thus, I find no merit in the submission of the learned counsel.

10. In view of what has been held above, this appeal is partly allowed only to the extent that on account of conventional head, claimants are entitled to Rs.70,000/- in place of Rs.1,30,000/-. Insurance Company is directed to pay entire compensation amount within three months along with interest. It is made clear that if any amount has been paid, the same should be deducted. The statutory amount deposited by the Insurance Company while filing this appeal, should be refunded to the Insurance Company.

11. This appeal, accordingly, stands partly allowed.

(Ananda Sen, J.) Kumar/Cp-02