Jharkhand High Court

Divisional Manager vs Satiya Devi Wife Of Late Birsa ... on 16 January, 2023

                                          1                   Misc. Appeal No.260 of 2015




             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Misc. Appeal No.260 of 2015

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Divisional Manager, United India Insurance Co. Ltd., Divisional Office, Vyapar Bhawan, Lalji Hirji Road, P.O. Ranchi, P.S. Kotwali, District-Ranchi, represented through Divisional Manager .... Appellant

-- Versus --

1.Satiya Devi wife of late Birsa Munda

2.Mukesh Kumar Munda, son of Birsa Munda

3.Ramdhan Kumar Munda son of Birsa Munda (Respondent Nos.2 and 3 are minors and are being represented through their mother natural Guardian as their next friend) All residents of Village and P.O. Takara, P.S. Khunti, District -Ranchi. At present residing at Kuju Colliery, P.O. and P.S. Mandu, District Hazaribagh (Claimant Nos.1 to 3 respectively)

4.Samir Baran Das, son of Anil Baran Das, resident of 533A, West Rajapur, Near 5/13 Chitranjan Colony, PO+PS Jadavpur, Kolkata 20. At present residing at 434A, Ashok Nagar, P.S. Argora, P.O. Ranchi, District-Ranchi (Opp.Party No.2) .... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Appellants         :- Mr. Alok Lal , Advocate
       For the Resp.Nos.1-3       :- Mr. Dilip Kumar Prasad, Advocate
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8/16.01.2023        Heard Mr. Alok Lal, the learned counsel appearing on behalf

of the appellant and Mr. Dilip Kumar Prasad, learned counsel appearing

on behalf of the respondent nos.1-3. Notice upon respondent no.4 has

been validly served which has been recorded in the order dated

26.04.2022. The matter was again taken up on 05.01.2023 and it was

adjourned however respondent no.4 has not appeared till date and in

that view of the matter the appeal has been heard on merit.

The present appeal has been filed against the

judgment/award dated 19.02.2015 passed by learned Motor Vehicles

Accident Claims Tribunal, Ranchi in Compensation Case No.211 of 2004.

The compensation case was filed by Mrs.Satiya Devi, Mahesh Kumar

Munda and Ramdhan Kumar Munda who were the widow of the

deceased namely Birsa Munda and the minor sons respectively. Daru

Munda was also one of the claimant however he was died during

pendency of the compensation case. Birsa Munda was aged about 33

years having a monthly income of Rs.9320 died as a result of motor

vehicle accident which took place on 18.4.2004 at about 7.30 a.m on

National High Way within P.S. Namkum near village Jamchuwa. It is

stated that the deceased was returning from Tamar to his house at Kuju

along with his family by motorcycle after attending the marriage

ceremony of his cousin then a Maruti Van bearing registration No.AS-19-

3582 owned by the O.P.no.2 (respondent no.4 in this appeal) and driving

by the O.P.No.2 Samir Baran Das in very rash and negligent manner

dashed the motorcycle of Birsa Munda resulting serious multiple injuries

on the person of the deceased and ultimately death of Birsa Munda after

being taken to C.C.L. Hospital Gandhi Nagar. It is stated that the said

Birsa Munda died on 19.04.2004 and the claim of Rs.12 lac has been

claimed.

After hearing the insurance company as well as the learned

counsel for the claimants, the learned tribunal has been pleased to award

to make the payment of Rs.19,09,000/- after deducting the amount if

any paid u/s 140 of the Motor Vehicle Act with interest at the rate of 9%

per annum from the date of settlement of issues i.e. 27.7.2011 till the

date of payment which shall be made within one month from the date of

receipt of copy of the judgment failing with interest at the rate of 12%

per annum shall be payable from the date of judgment. Aggrieved with

this, the insurance company has filed the present appeal.

Mr. Alok Lal, the learned counsel for the appellant contested

this appeal on the ground that driving licence has not been proved before

the learned court however the learned court has allowed the

compensation without considering this aspect of the matter which is

against the mandate of law and to buttress his argument, he relied in the

case of Pappu and Others v. Vinod Kumar Lamba and Another, (2013) 3

SCC 208. Relying on this, he submits that onus primarily lies on the

owner of the vehicle to establish that the driver of offending vehicle was

authorized by him to drive the vehicle and he had valid driving licence

which is lacking in the case in hand and the O.P.No.2 has not appeared

before the Tribunal. He further submits that the quantum is also not in

accordance with the law. According to him, the future prospect was not

required to be awarded in view of the fact that wife of the deceased has

got the compassionate appointment and she was getting more than of

the deceased was getting. On this ground, he submits that the appeal is

fit to be allowed. Lastly, he submits that atleast the Tribunal was required

to pass the order for recovery of the amount after satisfying by the

insurance company from the owner of the vehicle in question. On this

ground, he submits that this appeal may kindly be allowed. On the point

of future prospects he relied in the case of Himachal Road Transport

Corporation Chamba vs. Mrs. Inumoni Gegum, 2020(2) NEJ 745 [MAC

Appeal No.223 of 2010].

Mr. Dilip Kumar Prasad, the learned counsel for the

respondent nos.1 to 3 submits that the right of recovery was not argued

before the Tribunal and at the appellate stage the right is not accrued in

favour of the appellant. He further submits that the learned Tribunal has

rightly concluded the compensation and has also answered on the point

of compassionate appointment in paragraph no.19. He submits that there

is no illegality in the award.

In view of the above facts and submissions of the learned

counsel appearing for the parties, the Court has gone through the

materials on record including the LCR which has been called by order

dated 26.04.2022. The learned Tribunal has framed 10 issues for

deciding the award. The issue no.6 relates to valid driving licence which

has been considered by the learned Tribunal in paragraph no.15 of the

judgment and the learned Tribunal has held that the insurance company

has not made any oral or documentary evidence on the point of driving

licence and in that view of the matter that issue has been decided

against the insurance company. In the judgment relied by Mr. Alok Lal,

the learned counsel the insurance company has appeared and in that

view of the matter it was decided that owner is required to prove the

licence and thereafter the liability lies upon the insurance company and in

the case in hand the owner has not appeared and the insurance company

has not taken pain to adduce either any oral or documentary evidence for

answer of that issue in its favour. It is well settled that burden of proof

lies on the party who asserts the existence of a particular state of thing

on the basis of which he claims relief. It is mandated in terms of section

101 of the Evidence Act which states that burden on proving the fact

rests with party who substantially asserts in the affirmative and not on

the party which is denying it. This rule may not be universal and has

exceptions, but in the factual background of the present case, the

general principle is applicable. As the insurance company has not led any

evidence either oral or documentary to prove the driving licence and the

learned Tribunal has rightly considered this aspect of the matter and has

not granted any relief on the point of driving licence by the insurance

company. Moreover, the weakness of defence cannot be justification to

obtain such order. Accordingly, the argument of Mr. Alok Lal, the learned

counsel for the insurance company with regard to driving licence is not

accepted by the Court. So far as the quantum is concerned, on the

ground of compassionate appointment cannot be termed as pecuniary

advantage that comes within the periphery of the Act and any amount

received on such appointment is not liable to deduction and on that

ground the quantum is not required to be interfered with by this Court. A

reference may be made to the case of Vimal Kanwar and Others v.

Kishore Dan and Others, reported in AIR 2013 SC 3830. Paragraph

nos.19 and 20 of the said judgment are quoted hereinbelow:

19. The first issue is "whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicle Act to be termed as "pecuniary advantage" liable for deduction. The aforesaid issue fell for consideration before this Court in Helen C. Rebello v. Maharashtra SRTC [(1999) 1 SCC 90 : 1999 SCC (Cri) 197] . In the said case, this Court held that provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. The following was the observation and finding of this Court: (SCC pp. 111-12, para 35) "35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event viz. accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as „pecuniary advantage‟ liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between

them and not to which there is no semblance of any co- relation. The insured (the deceased) contributes his own money for which he receives the amount which has no co- relation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual."

20. The second issue is "whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as „Pecuniary Advantage‟ liable for deduction". "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one‟s death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as "Pecuniary Advantage" that comes under the periphery of Motor Vehicle Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act."