Jharkhand High Court
Shyam Kumar Chouhan vs Smt. Sumitra Devi on 4 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No. 63 of 2009
Shyam Kumar Chouhan .... ....Appellant
Versus
1. Smt. Sumitra Devi
2. Oriental Insurance Company, Dhanbad
3. Ramlal Vishwakarma
.... .... Respondents
With
Cross Appeal No. 05 of 2010
Smt. Sumitra Devi .... .... Appellant
Versus
1. Shyam Kumar Chouhan
2. Branch Manager, Oriental Insurance Company Ltd., Dhanbad
3. Ramlal Vishwakarma
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : M/s Sanjay Prasad & Shiv Prasad, Advocates
For the Respondents : M/s Pratyush Kumar &
Prashant Kr. Srivastava, Advocates
C.A.V. ON 10.12.2021 PRONOUNCED ON 04/ 01 / 2022
1. Both these appeals arise out of judgment and award of com-
pensation passed in Claim Case no. 61/2004 by the 5th Additional Motor
Vehicle Accident Claim Tribunal, Giridihand have been heard together
and will be disposed of by common judgment.
2. Appellant/O.P. No. 1 is the owner of the truck bearing Registra-
tion No. WB-37-8165 who has preferred the appeal against the order
passed in Claim Case No. 61/2004 whereby while awarding the compen-
sation to be paid by the Insurance Company, a liberty has been given to
recover the amount so paid from the owner of the offending vehicle.
3. Cross Appeal No. 5 of 2010 has been preferred by claimant for
enhancement of compensation for the death of her 5 years old son Om
Prakash Prasad in the Motor Vehicle accident. The learned tribunal com-
puted the compensation by taking Rs 15000/- per annum as the notional
income of the deceased on the basis of the Schedule II of Section 163 A of
the Motor Vehicle Act 1988. The determination of income of a non-
earning person has been always a difficult exercise and therefore the tri-
bunals accepted the notional income as provided under the Schedule. The
Hon'ble Apex Court had the opportunity to examine the revisit the issue
of compensation to be awarded in case of death of a minor in Kurvan
Ansari VsShyam Kishore Murmu2021 SCC Online SC 1060It was
held that
We deem it appropriate to take notional income of the deceased at Rs.
25,000/- (Rupees twenty five thousand only) per annum. Accordingly,
when the notional income is multiplied with applicable multiplier '15',
as prescribed in Schedule-II for the claims under Section 163-A of the
Motor Vehicles Act 1988, it comes to Rs. 3,75,000/- (Rs. 25,000/- ×
Multiplier 15) towards loss of dependency. The appellants are also en-
titled to a sum of Rs. 40,000/- each towards filial consortium and Rs.
15,000/- towards funeral expenses. Thus, the appellants are entitled to
the following amounts towards compensation:
(a) Loss of Dependency : Rs.3,75,000-00
(b) Filial Consortium (Rs. 40,000/- × 2) : Rs.80,000-00
(c) Funeral Expenses : Rs.15,000-00
Total : Rs.4,70,000-00
The present case is fully covered by the ratio of the case decided by
the Apex Court, except that since the mother died in the same accident,
the applicable compensation for the loss of filial consortium shall be Rs
40,000/-
Claimant shall be entitled to a final compensation of Rs 4,30,000
with interest @ of 7.5% from the date of application.
4. It is contended on behalf of the owner of the vehicle of M.A.
No. 63/2009 that the appellant/opposite party No. 1 had appeared before
the Tribunal and categorically stated in the written statement that the
vehicle was validly insured with O.P. No. 3 vide Policy No. 332703 valid
from 28.05.2004 to 27.05.2005 and the driver having valid licence vide
DL No. 18832/DD/93 issued by DTO, Dhanbad and all the required
document like fitness permit, tax etc. were valid at the time of accident, in
this view of matter the owner of the vehicle was entitled to be indemnified
by the insurance company under section 147 read with section 149 of the
M.V. Act.
5. The learned Tribunal held that the vehicle was under the
insurance cover of O.P. no. 3 and the accident took place due to the rash
and negligent driving of the driver of the truck. The breach of the terms
and conditions of the insurance policy was inferred by tribunal while
deciding issue no. 6 & 7 on the ground that no document was produced by
the owner and driver of the vehicle (O.P. No. 1& 2) accept the insurance
policy and therefore right of recovery was given to the Insurance
Company.
The finding of the Tribunal in this regard is not sustainable for
the reason that once the owner of the vehicle specifically pleads that the
vehicle was under the insurance cover and produces the relevant
documents by disclosing the name of the driver and the particulars of the
driving licence, it is for the insurance company to raise the defence, if any,
that the vehicle was not duly insured or it was being driven by the driver
without a valid driving licence. Here in the present case although in the
insurance policy, name of the driver and particulars of the driving licence,
fitness certificate of the vehicle, permit and tax challan have been stated in
paras- 9 to 13 of the written statement alongwith the annexures of their
copies have been filed on behalf of owner and driver of the vehicle, but
the same has not been specifically denied by the insurance company nor
any evidence has been led to refute the same.
Under the circumstance the finding of the Tribunal regarding the
breach of insurance policy is perverse. The order of recovery of the
compensation amount by the Insurance Company from the owner of the
vehicle (appellant/O.P. No. 1) is not sustainable and accordingly set aside.
In the result, M.A. No. 63/2009 and Cross Appeal No. 5/2010
are allowed as at above.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 4th January, 2022
NAFR / AKT
