Jharkhand High Court
Negar Sultana vs The Branch Manager on 15 June, 2022
1
Miscellaneous Appeal No. 248 of 2015
[arising out of Award dated 17th day of March,
2015 passed by the Presiding Officer, Motor
Vehicle Accident Claim Tribunal, Hazaribagh
in Claim Case No.09 of 2012]
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Negar Sultana W/o late Md. Ismail, R/o Millat Colony, Pelawal Road, P.S.
Sadar, P.O. Reformatory School, Hazaribagh, District Hazaribagh.
... ... Appellant
-versus-
1. The Branch Manager, The Oriental Insurance Company Ltd., Gaya,
through the Oriental Insurance Company Ltd., Patna Road, Hazaribagh,
P.O. P.S. Sadar, District Hazaribagh.
2. Madan Yadav S/o Ramdeo Yadav, R/o Kahudag, P.O./P.S. Barachatti,
District Gaya.
3. Zeenat Kaushar
4. Kahkeshan Koushar
Both D/o Late Md. Ismail.
5. Md. Shahrukh Khan S/o Md. Ismail.
6. Chahat Koushar D/o Late Ismail.
All represented through their mother Negar Sultana.
Respondents No.3 to 6 R/o Millat Colony, Pelawal Road, P.S. Sadar, P.O.
Reformatory School, Hazaribagh, District Hazaribagh.
... ... Respondents
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For the Appellant : Mr. Awnish Shankar, Advocate
For the Respondents : Mr. Pratyush Kumar, Advocate
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PRESENT : HON'BLE MR. JUSTICE ANANDA SEN
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JUDGMENT
RESERVED ON 25.10.2021 PRONOUNCED ON 15.06.2022
This appeal has been filed by the claimant under Section
173 of the Motor Vehicles Act, 1988, challenging the award dated
17.03.2015 passed by the Presiding Officer, Motor Vehicle Accident
Claim Tribunal, Hazaribagh in Claim Case No.09 of 2012. The appellant
prays for enhancement.
2. Claimants claimed compensation on account of death of
Md. Ismail. It is the case of the claimants that the deceased was a driver
of Maruti Van bearing registration No. JH 01K 2591 and was earning
Rs.4,000/- per month from the owner of the Maruti Omni Van, but due to
accident he died at the spot. It is claimed that the deceased was aged
about 37 years. The deceased has left behind his wife, three daughters
and a son.
3. The Insurance Company and the owner with respect to the
other vehicle involved in the accident, bearing registration No. HR 38K
3809, had appeared before the Tribunal and contested the case. It is
their case that the claim case is not maintainable. It is their case that
claimant has not made the owner of Maruti Van and its insurer as
opposite party. The driver of the Maruti van was not a competent and
experienced driver. He lost his life and others at his own fault as he was
driving the van very rashly and negligently while he dashed with the
other vehicle. The Insurance Company has pleaded that the driver,
namely, Dinesh Singh, of offending vehicle bearing registration No. HR
38K 3809 had got no valid driving licence. The driving licence bearing
No. 918/90/Prof/HAZ has been issued in the name of Md. Rahim S/o
Md. Ibrahim of Chaibasa. The Insurance Company also pleaded that the
Maruti van bearing registration No. JH 01K 2591 was carrying more
passengers than its seating capacity. Thus, it is the case of the
Insurance Company that Insurance Company is not liable to pay
compensation amount. The owner of the offending vehicle bearing
registration No. HR 38K 3809 has pleaded that his vehicle is insured
with the Insurance Company.
4. On the basis of the pleadings of the parties, Tribunal framed
six issues, which are as under: -
(i) Whether the claim case is maintainable in its
present form?
(ii) Whether the claimants have got valid cause of
action for this claim case?
(iii) Whether this is a case of contributory
negligence?
(iv) Whether the dependents of the deceased, on
account of death, are entitled to compensation?
(v) What should be the quantum of compensation
by which the dependents can be adequately
compensated?
(vi) Who is liable to pay compensation?
5. Two witnesses were examined on behalf of the claimants
whereas the opposite parties have not examined any witness in support
of their case. The claimants have brought the following documents on
record in support of their claim:-
Ext. 1 Certified copy of FIR
Ext.2 Certified copy of Charge-sheet
Mark 'X' Copy of Insurance Policy
Mark 'X/1' Copy of Death certificate
Mark 'X/2' Copy of Postmortem report.
Mark 'X/3' Original Birth Certificate
Mark 'X/4' Copy of Insurance Policy
Mark 'Y' Copy of Driving Licence
Mark 'Y/1' Copy of Driving Licence
Mark 'Y/2' Copy of Permit.
The Insurance Company brought on record Letter of D.T.O.,
Hazaribagh bearing letter No.9813 dated 11.12.2012 which was marked
as Ext.A.
6. The Tribunal, after hearing the parties, came to a
conclusion that the claimants are entitled to compensation on account of
death of deceased Md. Ismail. While deciding Issue No.(iii), which is
with regard to contributory negligence, the Tribunal came to a
conclusion that the accident is a Head-on-Collision and both the drivers
of Maruti Van and Truck were negligent at the time of accident. The
Tribunal assessed the ratio of negligence in proportion of 40:60 with
respect to Maruti Van and Truck. The Tribunal while deciding issue
No.(V) regarding quantum of compensation, has come to a conclusion
that the quantum of compensation by which the dependents can be
adequately compensated by one of the offending vehicle, i.e., truck
bearing registration No. HR 38K 3809 is 60% of the total amount, i.e.,
Rs.2,90,000/- (Rupees Two Lakh Ninety Thousand) and this apart the
claimant No.1 is also entitled to a sum of Rs.5,000/- (Rupees Five
Thousand) as loss of consortium. The Tribunal in deciding issue No.(vi)
as to who is liable to pay compensation, has held that the owner of the
offending vehicle, i.e., opposite party No.2 Madan Yadav is liable to pay
the compensation amount, but since the insurance policy was valid, the
insurer should pay the compensation amount at first and may get it
realized or recovered from the owner of the offending truck. The
Tribunal has also awarded simple interest at the rate of 6% per annum
since 18.09.2013.
7. Counsel appearing for the claimant submits that Issue
No.(iii) framed in respect of contributory negligence has been wrongly
decided by the Tribunal. He submits that only on the basis of
assumption, it has been held that there was contributory negligence on
the part of the deceased, i.e., the driver of the Maruti Van. He submits
that if contributory negligence is canvassed by a party, the onus is upon
the said party to prove the same by leading evidence. In the instant
case, as per the appellant, the Insurance Company has failed to prove
that there was contributory negligence on the part of the deceased, thus,
deduction of 40% of the amount of compensation is absolutely bad. He
further takes a ground that the quantum of compensation assessed is on
the lower side, as the Tribunal has failed to grant compensation on
account of future prospect, as directed by the Hon'ble Supreme Court in
the case of National Insurance Company Ltd. versus Pranay Sethi &
Others reported in (2017) 16 SCC 680. He submits that on account of
conventional head also, a paltry sum of Rs.5,000/- has been awarded,
which is also not in accordance with the judgment passed by the
Hon'ble Supreme Court in the case of Pranay Sethi (supra).
8. Counsel appearing on behalf of the Insurance Company
submits that the collision is head-on, which would naturally give rise to a
presumption that there was negligence on the part of drivers of both the
vehicles. He submits that the Tribunal has correctly concluded that there
was contributory negligence on the part of the deceased and
apportioned the amount in the ratio of 60 : 40, directing the insurer of the
truck to pay 60% of the compensation amount. He submits that so far as
the quantum is concerned, the Tribunal has calculated the
compensation, considering the salary of the deceased, which was
claimed by the claimants themselves. He submits that there is no
illegality in assessment of the amount of compensation.
9. The deceased was a driver of Maruti Van bearing
registration No. JH 01K 2591. As per the claimant, he was earning
Rs.4,000/- per month as salary from the owner of the vehicle. The
deceased left behind his wife, three daughters and a son. The deceased
was 37 years of age at the time of death. These facts are admitted by
the Insurance Company also. The dispute is in respect of manner of
accident and the quantum.
10. While the deceased was driving the vehicle, it is alleged
that a truck bearing registration No. HR 38K 3809 was being driven in a
rash and negligent manner came from the opposite direction and head-
on collided with the Maruti Van, which was being driven by the
deceased. Since the collision was head-on, the Insurance Company had
taken a plea that there was contributory negligence. An issue was
framed in that respect, being Issue No.(iii), which is, as to whether there
is any contributory negligence or not. When the Insurance Company had
taken a plea of contributory negligence, it was upon the Insurance
Company to lead positive evidence to that effect. To consider this
aspect, I have gone through the Lower Court Records and evidence led
by the parties.
11. Claimant Witness No.1 is Negar Sultana, wife of the
deceased. Admittedly, she is not an eye witness. She had received the
information of the accident from one Md. Kamruddin. Claimant Witness
No.2 is one Atik Ahmad, who is a resident of Hazaribagh district, where
the accident had taken place. He, while deposing before the Tribunal,
has stated that he had seen this accident, and stated that a truck, which
was being driven in a rash and negligent manner, went beyond control
and dashed with the maruti van, as a result of which the van got
damaged and the driver died. He stated that he also went near the van
and he found that the deceased was a relative. On this point, he was not
specifically cross-examined by the Insurance Company. This is the only
oral evidence available on record in respect of the accident. Mandu
Police Station Case No.74 of 2011 was registered. The said case was
investigated and a chargesheet was filed after investigation. Exhibit 2 is
the chargesheet. From the said chargesheet, it is quite clear that the
investigating officer found that it is the act of the driver of truck bearing
registration No. HR 38K 3809, which led to accident as he was
negligent. Thus the oral evidence corroborates the documents. When
the Insurance Company has taken a plea of contributory negligence, it
was the duty of the Insurance Company to prove the same by leading
evidence. No evidence was led by the Insurance Company to that effect.
The only evidence on the point of accident is chargesheet and the
statement of Claimant Witness No.2. From scrutinizing both these
evidence, I find that it has come in evidence that, it is because of rash
and negligent driving of the truck, the accident had taken place. The
Tribunal only considered the circumstances, i.e. of head on collision to
conclude that there was contributory negligence on the part of the
deceased driver. It cannot be said that in all head-on-collisions, there
has to be contributory negligence. In the instant case, I find that as per
evidence, there is nothing to suggest that there was fault on the part of
the deceased despite the fact that collision was head-on. Claimant
Witness No.2 has stated that the offending truck went beyond control
and dashed the vehicle which was being driven by the deceased.
Further, as seen during investigation also, police found that it was the
truck, which was at fault. Thus, in absence of any cogent material to
conclude that there was contributory negligence on the part of the
deceased, the finding given by the Tribunal cannot be sustained. Thus,
this Court is of the view that the Tribunal has wrongly held that there
was contributory negligence on the part of the deceased. Thus, the
apportionment of ratio of compensation as 40 : 60 is not correct.
Accordingly, I set aside the aforesaid finding and conclude that accident
had occurred because of rash and negligent driving of the truck.
12. Second issue is in respect of quantum of compensation.
The deceased was earning Rs.4,000/- per month, as claimed by the
claimants. This was also accepted by the Tribunal. Considering the
undisputed age of the deceased, multiplier of '15' has been applied in
the instant case. There is no illegality in applying the multiplier of '15'.
The deceased has left behind five dependents. Considering the number
of dependents left behind by the deceased, 1/4th should be the correct
deduction on account of personal expenses and not 1/3rd. Further, I find
that the Tribunal has not awarded any compensation under the head of
future prospect. The Hon'ble Supreme Court in the case of Pranay
Sethi (supra) has held that where the deceased is self-employed and is
aged less than 40 years, 40% enhancement should be granted on
account of future prospect. In this case, 40% additional compensation
on account of future prospect has to be granted to the deceased. On
account of compensation under conventional head, only a paltry sum of
Rs.7,000/- has been awarded in place of Rs.70,000/-. Considering the
aforesaid, the amount of compensation needs to be recalculated, which
would be as follows: -
Sl. Description Calculation Amount
No.
1 Amount of compensation taking monthly
4000 x 12 x 15 7,20,000.00
income at Rs.4,000/- with multiplier of '15'
2 Amount of compensation after deducting
th 7,20,000 - 1,80,000 5,40,000.00
1/4 on account of personal expenses
3 Amount of compensation after adding 40%
5,40,000 + 2,16,000 7,56,000.00
on account of future prospect
4 Amount of compensation adding the amount
7,56,000 + 70000 8,26,000.00
of Rs.70,000/- under conventional head
13. The entire amount of Rs.8,26,000/- (Rupees Eight Lakh
Twenty Six Thousand) has to be paid by the Insurance Company,
respondent No.1, as they were the insurer of the offending truck bearing
registration No. HR 38K 3809, who was at fault. The Tribunal has
awarded a sum of Rs.2,95,000/- as principle amount. Thus, the
Insurance Company is directed to pay the balance amount of
Rs.5,31,000/- (Rupees Five Lakh Thirty One Thousand) along with
interest at the rate of 7% per annum on the balance amount (i.e.,
Rs.5,31,000/-) with effect from 17.03.2015, i.e., the date of the award.
14. This appeal is, accordingly, allowed to the aforesaid extent.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, the 15th June, 2022
NAFR/AFR
Kumar/Cp-02
