Icici Lombard General Insurance ... vs Jema Devi
2022 Latest Caselaw 1895 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      M. A. No. 168 of 2009
ICICI Lombard General Insurance Co. Ltd. through its
Manager Legal, Banhea Roy, Kolkata              ....    .... Appellant
                      Versus
1. Jema Devi
2. Amarendra Nath Kalindi
3. Rajeev Narayan
4. M/s United India Insurance Company Ltd., Jamshedpur
5. Govind Krishna Nag                           ....  ....   Respondents
                             With
                      M. A. No. 177 of 2009
ICICI Lombard General Insurance Company through its
Manager (Legal), Banhea Roy, Jamshedpur         ....    .... Appellant
                      Versus
1. Urmila Devi
2. Sanjeev Kumar Bhaskar
3. Manoj Kumar
4. Santosh Kumar
5. Mrs. Rekha Kumari
6. Rajeev Narayan
7. M/s United India Insurance Company Ltd., Jamshedpur
8. Govind Krishna Nag                     ....  ....  Respondents
                             ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant      : M/s Amit Kr. Das & Swati Shalini, Advocates
For the Respondents     : Mr. Harendra Kumar Singh

& Mr. D.K. Maltityar, Advocate (in M.A. No. 168/09) Mr. Alok Lal, Advocate (in M.A. No. 177/09)

C.A.V. ON 31.03.2022 PRONOUNCED ON 10 /05/ 2022

1. Both these appeals have been preferred by Insurance Company against the award of compensation in Compensation Case No. 172/2005 and in Compensation Case No. 162/2005 passed by the learned Additional District Judge, F.T.C. IX-cum-MVACT, Jamshedpur whereby and whereunder, a finding of contributory/composite negligence has been recorded against the driver of both the vehicles and the liability to pay compensation has been fastened on both the Insurance Company.

2. Both these appeals arise out of the judgment and award of compensation in two different claim cases, but arising out of the same accident and therefore they have been heard together and shall be disposed of by a common judgment.

3. On 23.05.2005 an accident took place between a Tata Indica car bearing Registration No. JH-05K-9096 and one bus bearing Registration No. BR - 34-8221. In this accident Samar Nath driver of the Indica car

and one Lakshman Mahto who was travelling in the car died. The claimants of Compensation Case No.162/2005 are the dependents of Lakshman Mahto and that of Compensation Case No. 172/2005 are the dependents of Samar Nath.

4. It is the case of the claimants in both the cases that the accident took place due to rash and negligent driving of the bus.

5. It is contended on behalf of the claimants in Compensation Case No. 172 of 2005 that deceased Samar Nath aged 34 years was a driver with a monthly income of Rs 6,000/- at the time of the accident and the claimants are the mother and brother of the deceased. The tribunal recorded a finding of contributory negligence on the part of the driver of both the vehicles. It awarded a compensation of Rs.1,94,000/- by accepting a monthly income of Rs 3000/- and applied a multiplier of 8 by taking the age of the mother of the deceased. The liability for paying the compensation amount has been fastened in equal share on both the Insurance Companies (O.Ps. 2 &4)

6. It is contended on behalf of the claimants in Compensation Case No. 162 of 2005 that deceased Lakshman Mahto aged 57 years was Electrical Superintending Engineer with a monthly salary of Rs.33,384/- at the time of the accident and the claimants are the widow and children of the deceased. The Tribunal recorded a finding of composite negligence on the part of the driver of both the vehicles. It awarded a compensation of Rs.16,51,104/- by accepting a monthly income of Rs.29,484/- and applied a multiplier of 9. Both the insurers of both vehicles have been equally held liable for paying the compensation in view of the finding of composite negligence.

7. M.A. No. 168 of 2009 has been preferred by O.P. No.4 I.C.I.C.I Lombard on the grounds that A.W.2 Akhilesh Singh who is an eye witness to the accident has deposed that he was also on way to Ranchi by his own car about 250 feet behind the Indica car which met with the accident. He has attributed the accident to the rash and negligent driving of the bus which was being driven negligently on the right side of the road. It is argued that in view of the eye witness account, the finding of contributory negligence was not supported by evidence. It is submitted that the learned Tribunal while deciding Issue No. II has recorded a finding of contributory negligence on the part of the deceased driver of

Indica Car. The further ground of challenge is that Firstly, the deceased will not come within the meaning of 3rd party as he was the driver of the vehicle and at best as per the provisions of Section 147 of the M.V. Act the claims should have been preferred under the Workmen's Compensation Act. Secondly, since there is a finding that the deceased was self-negligent in driving the vehicle, therefore, the award of compensation cannot be made under Section 166 of the M.V. Act.

8. M.A. No. 177 of 2009 has been preferred by O.P. No. 4 I.C.I.C.I Lombard on identical ground as taken in M. A. No. 168 of 2009 that it was not a case of composite negligence in view of the deposition of the eye witness to the accident. It is also contended that the age of the deceased has not been proved and the compensation awarded is exaggerated.

9. On the factum of accident, Tamar P.S Case No. 50/2005 (Ext-1) was registered under sections 279/337/338/304 A of the IPC against the drivers of both the vehicles. Police on investigation found sufficient evidence for filing charge-sheet against the drivers of both the vehicle, but since Samar Nath had died, therefore, submitted charge-sheet (Ext 2) against the driver Amarendra Kumar Mishra the driver of the bus bearing registration no. BR-34-8221. The age of the deceased was assessed to be 35 years in the post mortem report. Claimant has examined three witnesses, but out of them only one has claimed himself to be an eye- witness. A.W2 Akhilesh Singh has deposed that the bus was being driven rashly and negligently and dashed against the Indica Car resulting in the instantaneous death of the driver and one of the occupant of the car. In his cross-examination at para-11 he has deposed that the bus was being driven on the right side of the road which he witnessed from about 250 feet. The credit of this witness has remained unimpeached in the cross-examination. F.I.R is not a substantive piece of evidence and neither the informant nor any contrary evidence has been led to disbelieve the eye-witness account of A.W2 who has attributed the accident to the rash and negligent driving of the bus. Under the circumstance, the learned Tribunal was in error to record a finding of contributory/composite negligence which is set aside. I find and hold that the accident took place due to rash and negligent driving by the driver of the bus bearing registration no. BR-34-8221. The insurer of the offending bus O.P. No.2 United India Insurance Company

shall be liable to pay the compensation amount. Any amount so far paid by the appellant Company O.P.4 to the claimants shall be reimbursed by the O.P. No.2.

Although the claimants have not preferred any cross-appeal, however, in the light of ratio decided by Hon'ble the Supreme Court in 2020 SCC Online 1312 Surekha and Ors. Vs Santosh And Ors. the compensation awarded in both the cases is liable to be increased in the light of the ratio decided by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi, (2017) 16 SCC 680.

10. M.A. No. 168 of 2009 arises out of Compensation Case No. 172/2005 which has been filed by the mother and brother of deceased Samar Nath. The deceased was a bachelor aged 35 years as per the assessment made in the post mortem report. I do not find any infirmity in assessment of the monthly income of the deceased by the Tribunal as Rs.3000/-. However, while assessing dependency 50% has to be deducted on the personal and living expenses and the multiplier is to be chosen as per the age of the deceased and not that of his mother. Further, the present cannot be held to be dependent on the deceased unless there is specific pleading and convincing evidence that the claimant brother was dependent on the deceased. The final compensation amount shall work out as under.

Annual Income Rs. 3,000/- x12           Rs. 36,000/-
Annual     dependency     after         Rs. 18,000/-
deducting 50% on the living
and personal expenses of the
deceased
Taking multiplier of 16                 Rs.18,000/- x 16 = Rs. 2,88,000/-
considering the age of the
deceased to be 35 years
Future Prospect at the rate of          Rs. 1,15,200/-
40%
Conventional head                       Rs. 77,000/-
Total                                   Rs. 4,80,200/-

The claimant no.1 Jema Devi the mother of the deceased shall therefore be entitled to compensation of Rs.4,80,200/- with interest at the rate of 7.5% per annum on the compensation amount from the date of filing of claim application from O.P. No.2 United India Insurance Company. The Insurance Company is accordingly directed to make payment of the compensation amount to the Tribunal within a month of

this order. The Tribunal shall pay the compensation amount to the claimant no.1 after due verification.

In M.A. No. 177 of 2009 arising out of Compensation Case No. 162 of 2005 the final compensation will work out as under:

Annual Income Rs. 29,484/- x12 Rs. 3,53,808/-

Annual dependency after deducting Rs. 2,35,872/-

1/3rd    on the living and personal
expenses of the deceased

Taking multiplier of 9 considering Rs.2,35,872 X 9 = Rs.21,22,848/-

the age of the deceased to be 57
years
Future Prospect @ 15%                   Rs. 3,18,427/-
Conventional head                       Rs. 77,000/-
Total                                   Rs. 25,18,275/-

The claimants shall, therefore, be entitled to compensation of Rs.25,18,275/- with interest at the rate of 7.5% per annum on the compensation amount from the date of filing of claim application before the O.P. No.2 United India Insurance Company. The Insurance Company is accordingly directed to make payment of the compensation amount to the Tribunal within a month of this order. The Tribunal shall pay the compensation amount to the claimants in the manner given below: A. 60% of the total compensation amount to be paid to claimant no.1 B. 10% of the compensation amount to be paid to each of the claimant nos.2 to 5 jointly with claimant no.1 C. In case the claimants below 21 years the amount to be fixed deposited till they attain the age of 21 years.

Learned Tribunal has recorded a finding on Issue No. III that there was a violation of the terms and conditions of the insurance policy as the bus was not plying under a valid permit. This finding was recorded on the basis of the verification report of the permit. The finding has not been challenged by the owner of the bus by filing any cross appeal or cross objection.

Under the circumstance, O.P. No. 2 - United India Insurance Company shall have right to recover the amount so paid to the claimants.

The appellant Insurance Company shall be permitted to withdraw the statutory amount.

Both the appeals are allowed as at above.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 10th May, 2022 AFR/Anit