Branch Manager vs Rambha Devi
2022 Latest Caselaw 2608 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           M.A No. 194 of 2015
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Branch Manager, National Insurance Co. Ltd. .... .... Appellant(s).

Versus

1. Rambha Devi

2. Richa Kumari

3. Ritika Kumari

4. Riya Kumari

5. Biswajit Paul

6. Rameshwar Singh

7. Branch Manager, New India Assurance Co. Ltd. .... .... 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
                            Mr. Santosh Kumar, Advocate
     For the I.C            : Mr. G.C. Jha, Advocate

For the Complainants : Mr. Baleshwar Yadav, Advocate

14/13.07.2022 Heard the parties.

2. By filing this appeal, the appellant-Insurance Company has challenged the award dated 04.12.2014 passed by Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No. 196 of 2006.

3. Considering the nature of argument which has been advanced and the issue which has been raised in this appeal, I am disposing of this appeal at this stage itself as the Lower Court Records have already been placed before this Court and the parties have appeared.

4. Mr. Alok Lal, counsel appearing on behalf of the appellant submits that Tribunal while deciding issue no.8 has held that since the driving licence of the Trailer bearing Registration No. HR 38A 1694 is not on record, presumption can be drawn in favour of the owner of the vehicle to the effect that vehicle was being driven with a valid driving licence. He argues that in fact the presumption should be against the owner when the driving licence was not produced. The initial onus is upon the owner to bring on record the driving licence, then only in rebuttal the Insurance Company can take plea about the genuineness of the said licence. In view of the aforesaid position, he claims that "right of recovery" should have been granted in his favour as no driving licence of Trailer bearing Registration No. HR 38A 1694 was brought on record.

He further submits that Tribunal has enhanced compensation to the tune of 50% on account of "Future Prospect" and has also awarded Rs.1,25,000/- under "Conventional heads" which is against the principle laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited Vrs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680. He lastly contends that the rate of interest @ 9% per annum is from the date of admission and penal interest @12% is bad and could not have been awarded by the Tribunal.

5. Counsel appearing on behalf of New India Assurance Co. Ltd submits that no liability has been fastened upon his client neither the appellant is seeking any relief against his client.

6. Counsel appearing on behalf of the claimants submits that the deceased was a contractor and was earning Rs.5000/- per month. He was maintaining a Car and a family of four which would clearly suggest that the income assessed by the Tribunal as Rs.4000/- per month is erroneous. He further submits that Tribunal has awarded @ 9% interest as per his discretion, which may not be interfered with.

7. The deceased was returning with some of his friends after attending marriage. He was in the vehicle bearing Registration No. JH 01G 5418 (Indica). The vehicle was parked beside the road when the offending vehicle bearing Registration No. HR38A 1694 came and dashed the Indica car, resulting in death of the husband of the claimant no.1. The instant claim application was filed claiming compensation. The Insurance Company (appellant herein) filed their written statement taking a plea of contributory negligence and also taken a plea that Indica Car (which was not offending vehicle) was being driven by a person without a valid driving licence. The Tribunal framed eleven issues. Issue no.7 was in respect of composite negligence and issue no.8 is in relation to the validity and effectiveness of the driving licence of the driver of the offending trailer bearing Registration No. HR 38A 1694. The Tribunal assessed the income of the deceased as Rs.4000/- per month and awarded 50% enhancement on account of Future Prospect. Under Conventional head Rs.1,25,000/- has been awarded. Total compensation awarded is Rs.9,89,000/-. The Tribunal awarded interest @ 9% per annum from the date of admission of the claim application till payment and in the event the amount is not paid within a month the interest rate was enhanced to 12% per annum. On the aforesaid background the appeal has been preferred by the appellant on the ground mentioned above.

8. So far as driving licence of the offending vehicle is concerned, I find that while deciding issue no.8 the Tribunal has held that in absence of the driving licence the Tribunal is compelled to believe that the driver of the offending vehicle was having a valid driving licence.

9. I have gone through the show-cause/ written statement filed before the Tribunal by the Insurance Company. In the entire show-cause/ written statement, the Insurance Company has never doubted the validity or existence of the driving licence of the driver of the offending trailer. The Insurance Company has specifically raised doubt about the driving licence of the driver of the Indica car, in paragraph No.12 of the written statement but nothing was said about the driving licence of the offending vehicle HR38A 1694. Since the Insurance Company has not taken any plea doubting the driving licence of the driver of the offending vehicle, I find that the Tribunal was correct in holding that it will be presumed that the vehicle was being driven with a valid driving licence.

10. The next issue which needs to be decided is about the excess payment under conventional head and on account of Future Prospect. It is true that by virtue of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited (Supra) considering the age of the deceased in this case, the enhancement should be 40% and not 50% as granted. It is also true that in the instant case Rs.1,25,000/- has been awarded under Conventional head in place of Rs.70,000/-. While going through the evidence, I find that there was a consistent evidence that deceased was earning Rs.5000/- per month. Admittedly, the deceased was maintaining a car and family of four. Further from the evidence, I find that there is nothing on record to disbelieve that the deceased was not earning Rs.5000/- per month. The Tribunal thus without sufficient material has speculated the monthly income of the deceased to be Rs.4000/- in place of Rs.5000/-. This Court feels that the income of the deceased should have been assessed at Rs.5000/- per month by the Tribunal. Thus the excess amount awarded by the Tribunal under conventional head and 50% enhancement for Future Prospect will somehow set off the loss which has occurred to the claimants in assessing the monthly income. Thus, I am not interfering with the quantum of compensation which has been assessed by the Tribunal.

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11. So far as interest is concerned, I feel that interest @ 9% per annum is on much higher side. Reasonable interest should have been 7% per annum. Further Motor Vehicles Act provides for filing an appeal within 90 days. In the instant case before expiry of the 90 days the rate of interest has been enhanced to 12%. This interest of 12% is penal in nature which the Tribunal could not have awarded. Thus, this Court only modifies the award to the extent where the Tribunal has awarded rate of [email protected] 9% per annum and 12% as penal. It is made clear that the interest would be paid @ 7% per annum on the awarded amount from the date of admission of the claim case till the same is paid.

12. With the aforesaid modification in the award, this appeal is disposed of.

(ANANDA SEN , J) anjali/cp2