Jharkhand High Court
The Divisional Manager vs Gauri Devi on 25 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 156 of 2015
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The Divisional Manager, United India Insurance Co. Ltd., Rajhans
Mansion, Bankmore, P.S. Bankmore, Dist. Dhanbad, having Divisional
Office at Vyapar Bhawan, Lalji Hirji Road, PS Kotwali, PO Ranchi, Dist.
Ranchi, through its Senior Divisional Manager S.N. Singh S/o Late
Ranjeet Singh, resident of New Lake Avenue, Kanke Road, PO Ranchi
University, PS Gonda Town, Dist. Ranchi.
.... Appellant
-versus-
1. Gauri Devi w/o Late Lokesh Mahto
2. Rita Kumari d/o Late Lokesh Mahto
3. Bindu Kumari d/o Late Lokesh Mahto
4. Arun Kumar s/o Late Lokesh Mahto
5. Pinki Kumari d/o Late Lokesh Mahto
Nos.2 to 5 are minor children of the deceased, represented through their
mother and natural guardian, respondent No.1.
All r/o Village Lukaiya, PO Arwara, PS Bagodar, Dist. Giridih.
6. Basudeo Mahto S/o Lalu Mahto
7. Smt. Khemia Devi w/o Sri Basudeo Mahto
Both r/o Village Lukaiya, PO Arwara, PS Bagodar, Dist. Giridih.
... Respondents
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CORAM: SRI ANANDA SEN, J.
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For the Appellant: Mr. Ashutosh Anand, Advocate.
For the Respondents: Mr. Shekhar Prasad Sinha, Advocate.
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Reserved on: 06.12.2021 Pronounced on: 25/08/2023
This Miscellaneous Appeal under Section 173 of the Motor
Vehicles Act, 1988 has been filed by the appellant-Insurance Company
challenging the Award dated 06.01.2015 passed by the learned District Judge-
IV-cum-MACT, Dhanbad in T (MV) Case No. 98/2011, whereby a sum of
Rs.4,68,500/- along with interest @ 7% per annum from 5.3.2012 has been
awarded as compensation.
2. The brief fact of this case is that on 15.7.2007 the deceased
Lokesh Mahto was driving the Tractor and Trailer bearing registration number
JH 11C 0775 and JH 11C 0776 loaded with tower angles and was going to
drop the iron angles to Kari Jori River at Kustor. At about 9:00 a.m., in course
of coming down the slope, the tractor gained in speed and in order to prevent it
from falling into the river, the driver turned the tractor to the right direction, as a
result of which the said tractor turned turtle and the deceased driver came
under the tractor and died on the spot.
On the basis of fardbeyan of Pramod Mahto, FIR was registered
as Kenuadih P.S. Case No. 53/2007 dated 15.7.2007 under Sections 279 and
304A of the Indian Penal Code. After completion of investigation, final report
vide 72/2007 dated 31.8.2007 was submitted finding the case true under
Sections 279 and 304-A of the Indian Penal Code against the deceased -
driver Lokesh Mahto.
3. As a result of the accident, a compensation case was filed by the
Claimants under the Motor Vehicle Act. The parties appeared before the
Tribunal and filed their pleadings.
4. The Tribunal after hearing the parties, framed seven issues, which
are as follows:-
(i) Is the suit maintainable in its present form?
(ii) Is there any cause of action for the suit?
(iii) Whether the deceased Lokesh Mahto died in motor
vehicle accident?
(iv) That, the deceased Lokesh Mahto driver of Tractor and
Trailer No. JH 11C 0775 and JH 11C 0776 had a valid and
effective driving licence at the time of accident.
(v) Whether Tractor and Trailer No. JH 11C 0775 and JH 11C
0776 had a valid and effective permit at the time of accident?
(vi) Are the applicants entitled to compensation, and if so,
what amount and from whom?
(vii) To what relief and relief's if any applicants are entitled.
The applicants in support of their case have also adduced three
witnesses and some important documents.
5. Learned counsel for the appellant-Insurance Company submitted
that the deceased was the driver of the vehicle and it was because of his own
rash and negligent driving, the accident had occurred, resulting in his death.
Since the driver was rash and negligent, the claimants cannot maintain the
claim under Section 163A of the Motor Vehicles Act. He further takes a plea
that the tractor, which was involved in the accident, was not duly insured with
the United India Insurance Company Ltd., thus, the Appellant-Insurance
Company is not liable to indemnify. He further submits that the deceased is
none but the son of the owner of the vehicle and on this ground also, the
claimants are not entitled to be compensated.
6. Learned counsel for the claimants submitted that the deceased
was a driver, whose monthly income was Rs.3,000/- per month at the time of
accident. He further submitted that the claimants are the dependents of the
deceased, therefore, the Title (MV) Case No. 98/2011 was filed on 1.12.2007
for compensation of Rs.5,00,000/- under Section 163A of the M.V. Act against
the registered owner of the offending Tractor and Trailer and the United India
Insurance Co. Ltd. before Permanent Lok Adalat being P.L. Case No. 154 of
2007 in which notices were issued to the parties, thereafter written statement
was filed, but the matter could not be settled. He further submitted that
thereafter, the matter was referred to MACT Court and after registering the
case as M.V. Claim Case No. 98/2011, it has been transferred to the MACT,
Dhanbad. He further submitted that the Appellant-Insurance Company has not
produced any documents, which suggests that the driver was not having a
valid driving licence at the time of accident and the offending vehicle was not
insured with the Insurance Company at the time of accident. He further
submitted that the claimants have brought the driving licence of the deceased
as Ext.3, issued by the DTO, Giridih on 08.12.2005, which was valid upto
07.12.2008, whereas, the accident had taken place on 15.07.2007. He also
submitted that after hearing the parties, the Tribunal has directed the
Insurance Company to pay a sum of Rs.4,68,500/- along with total amount of
interest @ 7% per annum from 05.03.2012 as compensation to the plaintiffs-
claimants, which is just and proper.
7. I have heard the parties and perused the record and well as
impugned award.
8. From the evidence and documents available on record, I find that
the owner of the offending tractor and trailer have contested the suit by filing
their written statement, but no oral evidence has been brought on record on
behalf of them. The Insurance Company i.e. defendant No. 3 had brought the
photocopies of owner book of Tractor and Trailer (Ext.-A & B). The claimants
have brought the driving licence of the deceased as Ext.-3, issued by the DTO,
Giridih on 08.12.2005 and valid up to 07.12.2008. Accordingly, the learned
Tribunal has decided the issue Nos. III and IV in favour of the claimants,
whereas, Issue No. V has been decided against the claimants. Issue Nos. I, II,
VI and VII have also been decided in favour of the claimants.
9. After hearing the parties, the learned Tribunal concluded that at
the time of occurrence, the offending vehicle was validly insured with the
United India Insurance Co. Ltd which was valid from 28.4.2007 to mid-night of
27.04.2008 (Ext.-4), thus the Insurance Company is liable to pay the
compensation to the claimants.
10. It was further held by the learned Tribunal that at the time of
accident, the deceased was aged about 30 years, as the same was supported
during the trial by P.Ws. 1 and 2, who are the widow of the deceased and a
villager respectively. From perusal of the postmortem report of the deceased
(Ext.5), it appears that the age of the deceased has been assessed as 30
years. The Tribunal after considering the judgment reported in the case of
Most. Sudamiya and Ors. Vs. the New India Assurance Co. Ltd., reported
in 2010(1) JLJR 553, in which, it has been held that in absence of any reliable
evidence, the compensation amount can be assessed by taking a minimum
salary of Rs.3000/- per month assessed the compensation. As per the
principle laid down by the Hon'ble Apex Court in the case of Sarla Verma
reported in (2009) 6 SCC 121 and considering the number of the dependents
of the deceased, the Tribunal has held that 1/4th be the deduction as personal
expenses of the deceased. Accordingly, by applying multiplier 17, burial
expenses as Rs.2,000/-, loss of estate as Rs.2500/- and loss of consortium as
Rs.5000/-, the Tribunal has awarded a total sum of Rs.4,68,000/- as
compensation amount with simple interest @ 7% from the date of admission
of the suit i.e. 5.3.2012.
11. On the basis of the pleadings, the only issue, which needs to be
decided in this case is, whether on the facts of the case, the deceased being
the driver of the tractor, was responsible for the accident or not and whether
the claimants can claim compensation or not.
12. In the claim application, the claimants have stated that how the
accident had occurred. The deceased was driving the Tractor & Trailer No. JH
11C 0775 and JH 11C 0776 on 15.07.2007. The tractor was loaded with iron
angles, which was to be delivered at Kari Jori River at Kusto. The tractor came
down the river and all of a sudden, turned turtle and the driver, Lokesh Mahto
came under the tractor and died on the spot.
13. Claimant Witness No.1 is the wife of the deceased, who stated
that the tractor was being driven by her husband. Some materials of towers
were being transported in the said tractor, which were to be delivered near Kari
Jori River. When the driver was plying the tractor for taking the tractor to the
river bed, the tractor turned turtle and her husband, who was the driver, was
crushed to death.
Claimant Witness No.2 Wakil Mahto also stated in similar manner
that when the deceased was driving the tractor and was taking it to the river
bed, the tractor turned turtle and the deceased came beneath the tractor and
died on the spot.
Hari Lal Mahto, another witness of the claimants, though wrongly
numbered as Claimant Witness No.2, also stated exactly the same as other
witnesses had stated.
14. Exhibit 1 is the First Information Report lodged by one Pramod
Mahto. In the First Information Report, it has been stated that the tractor was
loaded with materials and was going towards the river. Some workmen were
also on the tractor. The deceased was taking the tractor to the river bed and
was driving down the slope when the tractor was at a great speed. On the
slope, the tractor suddenly turned turtle and the deceased driver came
beneath the tractor, resulting in his death. Thus, from the oral and
documentary evidence, the fact, which is clear is that the deceased was the
driver and was driving the tractor. The tractor turned turtle, when it was being
driven down the slope, resulting in death of the driver.
15. From the evidence led by the claimants, it is clear that the
accident occurred due to the sole act of the driver, but the claim application
filed by the claimants is under Section 163A of the Motor Vehicles Act. Section
163A of the Motor Vehicles Act reads as follows: -
163-A. Special provisions as to payment of compensation
on structured formula basis. - (1) Notwithstanding anything
contained in this Act or in any other law for the time being in
force or instrument having the force of law, the owner of the
motor vehicle of the authorised insurer shall be liable to pay
in the case of death or permanent disablement due to
accident arising out of the use of motor vehicle,
compensation, as indicated in the Second Schedule, to the
legal heirs or the victim, as the case may be.
(2) In any claim for compensation under sub-section (1), the
claimant shall not be required to plead or establish that the
death or permanent disablement in respect of which the
claim has been made was due to any wrongful act or neglect
or default of the owner of the vehicle or vehicles concerned
or of any other person.
(3) The Central Government may, keeping in view the cost of
living by notification in the Official Gazette, from time to
time amend the Second Schedule.
16. From a perusal of sub section (2) of Section 163-A of the Motor
Vehicles Act, it is clear that in an application under Section 163-A of the Motor
Vehicles Act, the claimants are not required to plead or prove that the death or
permanent disablement was due to any wrongful act or default of the owner of
the vehicle or any other person. This term 'any other person' will also include
the 'driver'. Thus, in this case, it is immaterial whether the driver was negligent
or was at fault. From the evidence, it is clear that the tractor and trailer was
involved in the accident. Evidence also suggests and as held by the Tribunal,
the vehicle was duly insured with the appellant-Insurance Company. In fact,
the Insurance Company did not lead any evidence to substantiate any of their
defence. The driving licence of the deceased driver was valid at the time of the
accident. The Tribunal has also found that the vehicle was insured vide valid
policy No.210502/31/07/01/ 0000424, valid from 28.04.2007 till 27.04.2008.
Admittedly, the accident had taken place on 15.07.2007, thus, since the
vehicle was insured, the Insurance Company is liable to indemnify the owner.
Tribunal has, thus, allowed the claim application and directed the Insurance
Company to pay compensation. I find no illegality in the impugned award
06.01.2015 passed by the learned District Judge-IV-cum-MACT, Dhanbad in T
(MV) Case No. 98/2011.
17. This miscellaneous appeal is, accordingly, dismissed.
18. The appellant-Insurance Company is permitted to withdraw the
statutory amount deposited at the time of filing of this appeal.
(Ananda Sen, J.)
Kumar/Cp-02
