Branch Manager vs Rajesh Kumar Gupta & Others
2023 Latest Caselaw 1778 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 277 of 2018
                           ........

Branch Manager, National Insurance Company Limited .... ..... Appellant Versus Rajesh Kumar Gupta & Others .... ..... Respondents WITH C.O. No. 5 of 2019 ........

Rajesh Kumar Gupta .... ..... Cross-Objector Versus G.R. Agrawal & Others .... ..... Opp. Parties

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............

For the Appellant : Mr. Pratyush Kumar, Advocate. For the Respondent No. 1 : Mr. Prabhat Kumar Sinha, Advocate. For the Respondent No. 2 : Mr. Kumar Sundram, Advocate.

[In M.A. No. 277/2018] For the Cross Objector : Mr. Prabhat Kumar Sinha, Advocate. For the Opp. Party No. 1 : Mr. Kumar Sundram, Advocate. For the Opp. Party No. 2 : Mr. Pratyush Kumar, Advocate.

[C.O. No. 5 of 2019]

The matters are being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that the audio and video qualities are good.

........

11/27.04.2023.

Both M.A. No. 277/2018 and C.O. No. 5/2019 are being heard together and are disposed of by this common order.

Heard, learned counsel for the appellant - National Insurance Company Limited, Mr. Pratyush Kumar, learned counsel for the respondent no. 1/claimant, Mr. Prabhat Kumar Sinha and learned counsel for the respondent no. 2 / Owner of Truck, Mr. Kumar Sundram (In M.A. No. 277/2018) and learned counsel for the Cross- Objector / Claimant, Mr. Prabhat Kumar Sinha, learned counsel for the opposite party no. 1 / Owner of Truck, Mr. Kumar Sundram and learned counsel for the opposite party no. 2 / National Insurance Company Limited, Mr. Pratyush Kumar (In C.O. No. 5/2019).

Learned counsel for the appellant-Insurance Company, Mr. Pratyush Kumar has submitted, that the National Insurance Company Limited has preferred this appeal against the award dated 13 th day of November, 2017 passed by learned Presiding Officer, Motor Vehicle

Accident Claims Tribunal (M.V.A.C.T.), Hazaribagh in Claim Case No. 44/2011, whereby the claimant namely, Rajesh Kumar Gupta, son of Late Narayan Sao has been awarded compensation to the tune of Rs. 3,66,000/- along with interest @ 6% per annum from the date of framing of the issue i.e. 23.02.2016 to be indemnified within a period of 30 days, failing which, the awarded amount shall carry interest @ 9% per annum. The payment of ad-interim compensation, if paid, shall be deducted from the awarded amount.

Learned counsel for the appellant has assailed the impugned award on the ground that the learned Tribunal has not considered the plea taken by the Insurance Company in their written statement with regard to fake driving licence of the driver of the offending vehicle and expiry of permit on the date of accident and thus, the Insurance Company came before this Court in the present miscellaneous appeal, as such, this Court may remand the matter before the learned Tribunal with limited question with regard to driving licence as well as with regard to permit.

Learned counsel, Mr. Kumar Sundram appears on behalf of the Owner of the Offending Vehicle namely, G.R. Agrawal [Owner of Truck (Water Tanker) No. RJ-27GA-0892] has opposed the prayer and has submitted, that the plea taken by the Insurance Company will not suffice the purpose. The Insurance Company ought to have been diligent at the time of framing of issue. If the learned Tribunal has not framed the issue, which was essential for the Insurance Company, there was no hindrance for the Insurance Company to come before this Hon'ble Court for framing such issue.

Learned counsel for the Owner of the Offending Vehicle has further submitted, that in absence of any evidence, such plea cannot accepted as a gospel truth and by exhibiting a document before the learned Tribunal, it cannot be considered as an evidence, unless and until it is proved by orally evidence, as the other side have right to cross-examine the person for proper adjudication of the issue.

Learned counsel for the Owner of the Offending Vehicle has thus submitted, that in view of the judgment passed by the Apex

Court in the case of Ramchandra Vs. Regional Manager, United India Insurance Company Limited reported in 2013 12 SCC 84, the plea taken by the Insurance Company may be rejected.

Learned counsel, Mr. Prabhat Kumar Sinha appears on behalf of claimant namely, Rajesh Kumar Gupta, has submitted, that claimant has preferred C.O. No. 5/2019 for enhancement of the award dated 13.11.2017 on the ground that the against the claim of Rs. 7,500/- as monthly income, the learned Tribunal has considered the income of the deceased to be Rs. 3,000/- per month, without any rationality.

Learned counsel for the claimant has further submitted, that the deceased was a cook and there is consistent oral evidence that the deceased used to earn Rs. 7,500/- per month, but the learned Tribunal, in absence of any documentary evidence, has considered the income of the deceased to be Rs. 3,000/- per month contrary to the principle laid down by the Hon'ble Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others, reported in 2019 (4) TAC 724 SC, where in absence of documentary evidence for the death of a Carpenter on 02.01.2001, the Hon'ble Apex Court has considered the income of the deceased to be Rs. 5,000/- per month, as such, the income of Rs. 3,000/- per month for an accident dated 02.03.2011 is a meagre amount, which may be enhanced to Rs. 7,500/- per month.

Learned counsel for the claimant has further submitted, that the future prospect of the deceased has not been considered, which ought to have been considered @ 25%, as the deceased was aged about 45 years, in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (Para-59.4).

Learned counsel for the claimant has further submitted, that under the conventional head, learned Tribunal has awarded less amount i.e. Rs. 30,000/- instead of Rs. 70,000/- i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.8), as such, the same may be enhanced.

Learned counsel for the claimant has further submitted, that the interest ought to have been awarded @ 7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (12) SCC 208 and if there is no reason assigned by the learned Tribunal, it is incumbent upon the learned Tribunal to grant interest from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act, as such, the interest may be granted @ 7.5% per annum from the date of filing of claim application.

Considering the rival submissions of the parties, looking into facts and circumstances of the case, it appears that the deceased Narayan Sao was returning home from Khushbu Hotel after attending his work and when he reached in front of Mahindra Showroom, suddenly a truck (Water-tanker) No. RJ-27GA-0892 came in rash and negligent manner and dashed against him. As a result of which, he received multiple injuries and died on the spot. An F.I.R. bearing Sadar (Muffasil) P.S. Case No. 126/2011 dated 02.03.2011 under Sections 279 / 304 (A) I.P.C. was registered against the driver of the offending vehicle. Admittedly, the deceased was aged about 45 years, leaving behind his son namely, Rajesh Kumar Gupta and his paralyzed wife, who is bed ridden. The offending vehicle was duly insured with National Insurance Company Limited vide Policy No. 370301/31/10/6300009669 valid for the period from 24.12.2010 to 23.12.2011 and the alleged date of occurrence is 02.03.2011.

From perusal of written statement of the Insurance Company, it appears that the Insurance Company has taken a plea and has brought on record a certificate with regard to fake driving licence of the driver of the offending vehicle, which has been marked as X/3 and the Certificate issued from D.T.O., Gopalganj with regard to D/L No. 1903/2000, which has been marked as Y/1 and investigation report, which has been marked as Y/2, but it appears that no oral evidence has been adduced in support of the documentary evidence nor any issue with regard to the same has been framed before the learned Tribunal, as such, proper opportunity was not given to the other side to cross- examine regarding validity and genuineness of the document in view

of the judgment passed by the Hon'ble Apex Court in the case of Ramchandra (Supra), as such, this Court under the appellate jurisdiction cannot permit the Insurance Company to agitate such issue, which has never been agitated before the learned Tribunal. Accordingly, the plea taken by the Insurance Company is hereby rejected.

Thus, M.A. No. 277/2018 being devoid of any merit is hereby dismissed.

So far C.O. No. 5/2019 is concerned, it is true that the income of the deceased was claimed to be Rs. 7,500/- per month, but learned Tribunal has considered the income of the deceased to be Rs. 3,000/- per month in absence of any documentary evidence, however there is consistent oral evidence of all the witnesses that deceased was working as Cook and was earning Rs. 7,500/- per month coupled with the fact that the accident is of dated 02.03.2011, as such, the consideration of income by the learned Tribunal to be Rs. 3,000/- per month is meagre amount.

In the case of Chemeli Devi (Supra), in absence of documentary evidence, the Hon'ble Apex Court has considered the income of the deceased to be 5,000/- per month for an accident dated 02.01.2001 and this Court is of the opinion that the case of Chameli Devi was of the year 2001, whereas the present case is of dated 02.03.2011 i.e. after 10 years, as such, it would be proper to consider the income of the deceased to be Rs. 6,000/- per month instead of Rs. 3,000/- per month against the claim of Rs. 7,500/- per month by the claimant.

So far, future prospect is concerned, since the deceased was aged about 45 years, as such, the claimant is entitled for future prospect @25% in view of the judgment passed by the Hon'ble Apex Court in the case of Pranay Sethi (Supra) (Para-59.4).

So far amount under the conventional head is concerned, claimant is entitled for Rs. 70,000/- i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.8).

Accordingly, the fresh calculation is as follows:-

Monthly Income                     Rs. 6,000/-.
Annual Income                      Rs. 6,000/- x 12 = Rs. 72,000/-

25% future prospect as deceased Rs. 72,000/- + Rs. 18,000/-

was aged about 45 Years         = Rs. 90,000/-
Pranay Sethi (Para-59.4)
[(2017) 16 SCC 680]

1/3rd deduction towards personal Rs. 90,000/- x 1/3 = Rs. 30,000/-

and living expenses
Sarla Verma (Para-30)
[(2009) 6 SCC 121]
Total Income                       Rs. 90,000/- - Rs. 30,000/-
                                   = Rs. 60,000/-

Multiplier of 14 (as the deceased Rs. 60,000/- x 14 = Rs. 8,40,000/- was in the age group of 41-45 years) Sarla Verma (Para-42) Conventional Head Rs. 70,000/- i.e. Rs. 15,000/- as loss of Pranay Sethi (Para-59.8) estate, Rs. 40,000/- as loss of consortium and Rs. 15,000/- as funeral expenses.

Total Compensation Amount Rs. 8,40,000/- + Rs. 70,000/-

= Rs. 9,10,000/-

The Insurance Company is directed to indemnify the enhanced amount along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 08.07.2011 till realization of the same, in view of the judgment passed by the Apex Court in the case of Dharampal and Sons (Supra) and in view of Section 171 of the Motor Vehicles Act.

However, the amount, if already indemnified by the Insurance Company including the amount under Section 140 of the Motor Vehicles Act shall be deducted. The balance amount shall be indemnified by the Insurance Company within a period of eight weeks from today in the account of the claimant / Cross-Objector of any nationalized bank.

Learned counsel for the claimant / Cross-Objector is directed to furnish the account number of the claimant in any nationalized bank before the learned Tribunal or learned Executing Court or to the Insurance Company within two weeks, so as to indemnify the awarded amount.

The statutory amount deposited by the Insurance Company at the time of filing of miscellaneous appeal i.e. M.A. No. 277/2018

shall be remitted to the learned Tribunal / learned Executing Court to indemnify the award to the claimant and if it is found to be excess, it shall be remitted to the Insurance Company, otherwise the same shall be part of the award.

Accordingly, the C.O. No. 05/2019 is hereby allowed. Let the L.C.R. be sent down.

(Kailash Prasad Deo, J.) Sunil/-