New India Assurance Co. Ltd. vs Usha Sharma
2023 Latest Caselaw 556 Jhar

                                                   1             Miscellaneous Appeal No. 70 of 2015



                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Miscellaneous Appeal No. 70 of 2015
                 New India Assurance Co. Ltd., Ranchi             ... Appellant
                                      -Versus-
            1.   Usha Sharma
            2.   Chandi Prasad Sharma
            3.   Jora Ram                                         ... Respondents
                                           -----

            CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                           -----
            For the Appellant         : Mr. Alok Lal, Advocate

For Respondent Nos. 1 & 2 : Mrs. Rakhi Rani, Advocate

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08/02.02.2023 Heard Mr. Alok Lal, learned counsel for the appellant and Mrs. Rakhi

Rani, learned counsel for respondent nos. 1 and 2.

2. Notices were issued upon respondent no.3. Service report is on the

record, which suggests that respondent no.3 has received notice himself

and in spite of that he has chosen not to appear before this Court. However

after valid service of notice, this matter was listed on 19.12.2022 and

25.01.2023 and in spite of that, respondent no.3 has not chosen to appear

before this Court and that is why, this appeal has been heard in absence of

respondent no.3, who is the owner of the truck in question.

3. The present appeal has been filed being aggrieved and dissatisfied

with the judgment dated 21.11.2014 passed by the learned Presiding

Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation

Case No.107 of 2009.

4. The deceased namely Kapil Sharma was aged about 24 years six

months and was earning Rs.12,000/- per month. On 01.12.2008 at about

10:30 p.m. when the deceased Kapil Sharma was coming from Sidrol to

Namkum by motorcycle bearing registration No. OR-23-0263, he was driving

the same safely and was on the left side of the road then one truck bearing 2 Miscellaneous Appeal No. 70 of 2015

registration No. RJ-19GA-8045 driven rashly and negligently by its driver

dashed the motorcycle of the said Kapil Sharma resulting into severe

grievous injuries culminating to his death. Namkum P.S. Case No.208/08

was registered against the driver of the truck. Claim of Rs.35 Lakhs has

been made. The opposite party no.1 was the owner of the offending vehicle

and opposite party no.2 was the insurer of the said offending vehicle. Vide

judgment dated 21.11.2014, the learned Presiding Officer, M.A.C.T., Ranchi

on contest of the claimants as well as insurance company, decided the

compensation case and directed to pay sum of Rs.16,37,000/- in the joint

name of claimant nos. 1 and 2 (respondent nos. 1 and 2) by the insurance

company after deducting the payment if any made under Section 140 of the

Motor Vehicle Act with interest from the date of admission of the claim

application i.e. 30.06.2009 @ 9% per annum till the date of payment which

shall be made within one month from the date of receipt of copy of the

judgment, failing which, the interest @ 12% per annum shall be payable

from the date of judgment.

5. The insurance company being aggrieved with the said judgment, has

assailed the same on the ground that the owner has not contested the case

before the learned tribunal and driving license was not produced, however

the insurance company has produced the report of the investigator and he

was also examined and in spite of that the learned tribunal has failed to

fasten the liability upon the owner of the truck.

6. Mr. Alok Lal, learned counsel for the appellant submits that in that

scenario the insurance company was required to set at liberty to recover the

said amount from the owner. To buttress this argument, he relied upon the

judgment passed by the Hon'ble Supreme Court in Pappu v. Vinod 3 Miscellaneous Appeal No. 70 of 2015

Kumar Lamba; [(2018) 3 SCC 208],

7. Paragraphs 11 and 12 of the said judgment are quoted herein below:

"11. The question is : whether the fact that the offending vehicle bearing No. DIL 5955 was duly insured by Respondent 2 insurance company would per se make the insurance company liable?

12. This Court in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time."

8. Mr. Alok Lal, learned counsel for the appellant further submits that the

learned tribunal has not considered future prospects in right perspective and

granted 50% of the income for future prospects, which is against the

mandate of the judgment of the Hon'ble Supreme Court in National

Insurance Co. Ltd. v. Pranay Sethi; [(2017) 16 SCC 680] . He further

submits that so far as the conventional heads are concerned, that is also on

the higher side which is required to be reduced to Rs.70,000/-. He also

submits that there is no head with regard to love and affection. On these

grounds, he submits that this appeal may kindly be allowed.

9. On the other hand, Mrs. Rakhi Rani, learned counsel for respondent

nos. 1 and 2 (claimants) submits that there is no dispute with regard to

accident in question. Kapil Sharma has died due to that accident and the

witnesses have been adduced on behalf of the claimants. The income has

been proved and thereafter the learned tribunal has passed the order. She

submits that there is no illegality in providing 50% on future prospects in 4 Miscellaneous Appeal No. 70 of 2015

light of the judgment passed in Reshma Kumari case. She further submits

that conventional head is also in accordance with law.

10. In view of the above submissions of the learned counsel for the

parties, the Court has gone through the judgment passed by the learned

tribunal and finds that respondent no.3 (opposite party no.1 in the said

compensation case) is the owner of the truck in question and he has chosen

not to appear before the learned tribunal and in his absence, the claim

application was decided. The insurance company has taken ground that

driving license of the driver was not produced in the court and the insurance

company has not been able to examine that license. Ext.-A is the

investigation report and the investigator has also been examined by the

insurance company on that point. In light of Section 134 (c) of the Motor

Vehicles Act, 1988 it was the duty of the owner to produce the license. In

that view of the matter, the award is required to be modified to the extent

considering the judgment of the Hon'ble Supreme Court in Pappu (supra)

and Pranay Sethi (supra). The insurance company shall certify the award

and set at liberty to recover the same from the owner of the truck in

question.

11. So far as future prospect is concerned, in light of the judgment of the

Hon'ble Supreme Court considering the age of the deceased, it is required

to be kept at 40% as future prospect and at the same time, in light of the

said judgment, multiplier is required to be 18, whereas multiplier has been

put in that case as 14 that too considering the age of mother of the

deceased, which is not in accordance with law. It is well settled in view of

Pranay Sethi (supra) case, the age of the deceased is required to be

considered as multiplier. Accordingly, future prospect is modified to 40% 5 Miscellaneous Appeal No. 70 of 2015

and multiplier is 18 in place of 14.

12. There is no head of love and affection as has been decided in many

cases by the Hon'ble Supreme Court as well as the High Court. In that view

of the matter, that head is also required to be modified. The claimants shall

be entitled to receive the sum of Rs.70,000/- under the conventional head.

Since based on the judgment passed by the Hon'ble Supreme Court in

Pranay Sethi (supra), the enhancement shall also govern. The conventional

head is required to be modified considering paragraph 52 of the judgment

passed by the Hon'ble Supreme Court in Pranay Sethi (supra). For ready

reference, paragraph 52 is quoted herein below:

"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact- centric or quantum-centric. We think that it would be condign 6 Miscellaneous Appeal No. 70 of 2015

that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."

13. Considering paragraph 52 of the judgment passed in Pranay Sethi

(supra), the conventional head is required to be fixed at Rs.70,000/- in view

of three years provided in the paragraph 52 and in that paragraph itself, it

has been held that quantified should be enhanced on percentage basis for

every three years and enhancement should be @ 10% in the span of three

years. Till date the award in question has not been satisfied, in that view of

the matter, Rs.70,000/- under the conventional head plus enhancement

shall be 10% in the span of three years.

14. In view of the above, the award is modified to the above extent.

15. Accordingly, this appeal is disposed of in above terms.

16. The statutory amount in question shall be transmitted back to the

learned tribunal. The award in question shall be satisfied in favour of the

claimants within six weeks from the date of receipt/production of a copy of

this order.

(Sanjay Kumar Dwivedi, J.) Ajay/