Jharkhand High Court
National Insurance Co. Ltd. ... vs Gangiya Devi on 23 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 32 of 2015
National Insurance Co. Ltd. through Divisional Manager, Sector-I, Near Ram
Mandir, PO & PS B.S. City, Bokaro .... .... Appellant(s).
Versus
1. Gangiya Devi
2. Raju Rajwar
3. Haripad Rajwar
4. Moni Kumari
5. Laxmi Kumari
6. CEZ SAIL, Bokaro Steel Plant, B.S. City , Bokaro
7. Chandra Barla .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Appellant(S) : Mr. Alok Lal, Advocate
For the Respondents- Claimants : Mr. Shresth Gautam, Advocate
For the Respondent Nos. 1 to 5 : Mr. Umesh Kr. Choubey, Advocate
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08/23.11.2021
Heard learned counsel for the parties.
2. This appeal has been filed by the appellant- National Insurance Co. Ltd.
challenging the award dated 24.07.2014 passed in T.M. V No. 16 of 2012 by
District Judge, 3rd Cum MACT, Bokaro.
3. Counsel appearing on behalf of the Insurance Company has raised three
issues while challenging this appeal. It is his submission that the Tribunal should
have taken into consideration the fact that the vehicle involved in the accident i.e
offending vehicle, (the bus) was plying without a valid permit and that being so,
the owner of the bus i.e Steel Authority of India Ltd. should have been directed to
pay the amount of compensation. He submits that plying of vehicle without permit
is fundamental breach and this breach goes to the root in the instant case, thus the
Insurance Company should be absolved from paying the compensation. He
further takes a ground that the accident had taken place because of negligence of
motorcycle as well as bus, which clearly suggests that there is contributory
negligence on the part of the deceased. It is the case of the appellant that Tribunal
has overlooked the aforesaid aspect while granting the compensation. He submits
that on the facts of this case since there is head on collision between two vehicles,
the Tribunal should have held that there is contributory negligence on the part of
the deceased also and should have reduced the compensation amount. His last
submission is that Tribunal has awarded compensation on a much higher side
without taking into consideration the Income Tax Returns of the deceased.
4. Counsel for the respondent- CEZ SAIL submits that admittedly the
vehicle bus bearing Registration No. BR 20P 0120 was insured with National
Insurance Co. Ltd. The policy was valid on the date of accident. Thus, the
Insurance Company is liable to pay the entire amount of compensation. He
further submits that respondent-company has never raised the issue of permit in
their written statement rather a vague statement has been given in paragraph no.
4 to the effect that the Insurance Company is entitled to take protection under
Section 149(2) of the MV Act, 1988. He submits that appellant cannot take shelter
of this vague statement in absence any specific pleadings.
5. Counsel appearing on behalf of the claimants submits that the Tribunal
has correctly assessed the income and fixed the compensation to the tune of Rs.
19,63,000/- which cannot be said to be exorbitant. He submits that the deceased
was an employee of BCCL and his net income was shown as Rs. 30,674/- per
month which is undisputed. The Tribunal has assessed the age of the deceased as
57 years and applied the multiplier of 8 and awarded compensation to the tune of
Rs. 19,63,000/-. He submits that infact under conventional head Rs. 50,000/- has
been awarded as compensation in place of Rs. 70,000/- as held in the judgment of
National Insurance Company Limited Vrs. Pranay Sethi & Ors. reported in
(2017) 16 SCC 680. He submits that in fact the balance Rs.4,20,000/- has to be
paid to them.
6. After hearing the counsel for the appellant and the respondents and after
going through the impugned judgment and the entire LCR, I find that the claim
application was filed by the claimants stating therein that deceased met with an
accident involving bus bearing Registration No. BR 20P 0120 which belongs to
CEZ SAIL, Bokaro Steel Plant, B.S. City , Bokaro. It is the case that since bus
was driven in a rash and negligent manner, the accident had taken place. It is their
case that deceased was driving a motorcycle when the bus came and dashed the
deceased. The owner of the bus appeared and filed the written statement taking a
plea that vehicle was duly insured. The Insurance Company has also filed written
statement. After evidence was led, the Tribunal considering the evidence on
record, assessed the income, the age of the deceased, the dependency and finally
awarded Rs. 19,63,000/-. This award for grant of Rs. 19,63,000/- is under
challenge by the Insurance Company on the grounds which has been referred
herein above wherein the submission of the learned counsel for the appellant has
been recorded.
7. To decide the contentious issue which has been raised, I have gone
through the written statement and the pleadings of the appellant wherein it has
been stated that vehicle was driven without permit, thus it is the owner of the
vehicle who has to pay amount of compensation. The plea that the vehicle was
being driven without permit has to be specific which should be reflected in
pleading before the Tribunal. A party has to plead a particular facts which needs
either to be accepted or rebutted. On rebuttal the burden of proof lies on the party
who is making the positive assertion. Thus there has to be an initial pleading on
the aforesaid fact, which a party needs to establish. In this case the Insurance
Company in the argument has taken a plea that the vehicle was driven without
permit. When I go through the entire written statement, I find that there is no
pleading to the effects that this vehicle was driven without permit. Counsel for the
appellant after going through the written statement submits that they have taken
this plea in paragraph no.4 wherein it has been stated that Insurance Company is
entitled to take protection under Section 149 (2) of the MV Act, 1988. This
statement is a very vague and bald statement. On this bald statement no issue can
be framed. If Insurance Company wants to take defence the vehicle is being plied
without permit, specific statement has to be given. Section 149(2) of the MV Act
lays down several condition which may attract violation of the condition of policy.
By mentioning only Section 149(2) MV Act it cannot be said that specific plea
has been taken in respect of absence of permit. Since there was no plea taken that
vehicle was being driven without permit, the Tribunal did not frame any issue
regarding the same. Thus, I find that plea taken by the Insurance Company cannot
be answered in their favour.
8. So far as contributory negligence is concerned, I find that no issue to that
effect was framed, neither the Insurance Company (the appellant herein) has led
any evidence to that effect. Furthermore for the sake of argument if the said point
is taken into consideration, I find that there is contra evidence. One eye witness
P.W-4 has stated that the deceased was driving the motorcycle and stopped and
parked his vehicle on the side of the road and when the deceased was trying to
alight from the motorcycle, the offending vehicle came rashly and negligently,
dashed down the deceased. This statement of the eye witness clearly suggests that
there was no element of contributory negligence in this case.
So far other components are concerned it has been correctly assessed, so is the
income. Thus, I find that the amount of compensation so fixed is not exorbitant.
Considering what has been held above, I find no merit in this case.
9. Accordingly this appeal stands dismissed.
10. The Statutory amount deposited by the Insurance Company at the time of
filing of this appeal should be refunded to the Insurance Company.
(ANANDA SEN , J)
anjali/ C.P 2
