Jharkhand High Court
Oriental Insurance Company ... vs Smt Asha Devi on 12 June, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 150 of 2015
----
Oriental Insurance Company Limited, Branch-2, Madina Manjil,
Kutchery Chowk, Jail Road, PO PS Raipu, District Raipur,
Chhattisgarh, duly represented through its Senior Divisional
Manager, Divisional Office, Oriental Insurance Co. Ltd., Tiwary
Enclave, Circular Road, Lalpur, PO PS Lalpur, Ranchi 834001.
... Appellant
-versus-
1. Smt Asha Devi w/o Late Anant Kumar
2. Anand Gaurav s/o late Anant Kumar
3. Abhishek Kumar s/o Late Anant Kumar
4. Abhijit Kumar s/o Late Anant Kumar
5. Ram Naresh Ray @ Ram Naresh Ram
6. Smt. Sunaina Devi w/o Sri Ram Naresh Roy @ Ram Naresh Ram
All residents of Sahdeo Nagar, Hehal, PO Hehal, PS Sukhdeo
Nagar, District Ranchi.
7. Satnam Singh s/o Sri Baldev Singh, resident of C/o Kamboj Road
Carriers, Hirapur, PO PS Raipur, District Raipur, Chattisgarh.
... Respondents
----
WITH
M.A. No. 186 of 2015
----
1. Smt. Asha Devi W/o Late Anant Kumar
2. Anand Gaurav son of Late Anant Kumar
3. Abhishek Kumar son of Late Anant Kumar
4. Abhijit Kumar son of Late Anant Kumar
5. Ram Naresh Roy @ Ram Naresh Ram S/o Late Ramu Rai
6. Smt. Sunaina Devi W/o Ram Naresh Roy @ Ram Naresh Ram
Applicant No.2 to 4 are minor, being represented through their
mother and natural guardian, i.e., Smt. Asha Devi (appellant No.1
herein)
All resident of Sahdeo Nagar, Hehal, Post Hesal, Ranchi 834005,
PS Sukhdeo Nagar, District Ranchi.
... Appellants
-versus-
1. Satnam Singh S/o Sri Baldev Singh C/o Kamboj Road Carriers
Hirapur, Post and PS Raipur, District Raipur (Chattisgarh State).
2. The Oriental Insurance Company Limited Branch-2, Madina
Manjil, Kutchery Chowk, Jail Road, Post and PS Raipur, District
Raipur (Chattisgarh) through Branch Manager, The Oriental
Insurance Company Limited, S.N. Ganguly Road, PS Kotwali,
Post Ranchi, District Ranchi 834001.
... Respondents
----
CORAM : SRI JUSTICE ANANDA SEN
----
2
For the Appellant : Mr. Pratyush Kumar, Advocate
[in M.A. No.150 of 2015]
Mr. Arvind Kumar Lall, Advocate
[in M.A. No.186 of 2015]
For the Respondents : Mr. Arvind Kumar Lall, Advocate
Mr. Ashutosh Anand, Advocate
[in M.A. No.150 of 2015]
Mr. Pratyush Kumar, Advocate
[in M.A. No.186 of 2015]
----
ORDER
RESERVED ON 07.07.2022 PRONOUNCED ON 12.06.2023
Both these miscellaneous appeals arise out of award dated
25.11.2014 passed by the Motor Vehicle Accidents Claims Tribunal, Ranchi in
Compensation Case No.21 of 2010. The appellant in M.A. No.150 of 2015 is
the Insurance Company, who prays to set aside the impugned award dated
25.11.2014 and the appellants in M.A. No.186 of 2015 are the claimants, who
seek enhancement of the compensation amount.
2. As the impugned award in both these appeals is common, both
these appeals were heard together and are being decided by this common
judgment.
3. On 23.06.2009, Anant Kumar, who was driving a scooter, was
going to his duty. When he reached near Dr. Zakir Hussain Park, Ranchi, all of
a sudden, a truck bearing registration number CG 04 HA 5413 came from the
opposite side and dashed the scooter causing multiple injuries to Anant
Kumar, who succumbed to the said injuries during treatment. A First
Information Report being Kotwali Police Station Case No.443 of 2009 under
Sections 279/304(A) of the Indian Penal Code was registered in this regard by
Manoj Kumar Ram, brother of the deceased.
4. A Compensation Case being Compensation Case No.21 of 2010
was filed by the dependent-claimants under Section 166 of the Motor Vehicles
Act, claiming compensation to the tune of Rs.25,00,000/- (Rupees Twenty-five
Lakh). The claimants are the widow, minor children and parents of the
deceased. The contention of the claimants was that the deceased was aged
37 years and was earning Rs.15,000/- per month and on 23.06.2009, the
deceased was driving his own scooter from his home on way to join his duty
and when he reached near Governor's House, Ranchi, all of a sudden a ten
wheel truck bearing registration number CG-04-HA-5413 came from front in a
very rash and negligent manner and dashed the scooter of the deceased as a
result of which multiple injuries were caused and the deceased died of such
injuries.
5. The driver of the truck had appeared before the Tribunal, but on
account of non-filing of written statement within time, he was debarred from
filing written statement. The Insurance Company had also appeared and filed
their written statement. They admitted that the offending vehicle was insured.
The main plea urged by the Insurance Company before the Tribunal was that
of contributory and composite negligence. The Insurance Company also
alleged violation of terms and conditions of the insurance policy, inasmuch as
it has been pleaded that the vehicular document, i.e., road permit, fitness
certificate etc. were not valid.
6. On the basis of pleadings of the parties, following issues were
framed by the Motor Vehicles Claims Tribunal, Ranchi:-
1. Is the compensation case as framed maintainable?
2. Whether the claimants have valid cause of action for their claim
application?
3. Whether the deceased died due to rash and negligent driving of
the driver of the truck bearing registration No. CG-04HA-5413 or
whether the deceased was also guilty for contributory negligence?
If yes then to what extent?
4. Whether the claimants are entitled to get compensation? If yes
then from whom and to what extent?
7. Claimants, in support of their case, had examined four witnesses,
namely, C.W.1 Santosh Kumar Singh, C.W.2 Asha Devi, who is claimant and
wife of the deceased, C.W.3 Satya Narayan Bhath and C.W.4 Akhilesh Kumar
Singh. In addition to oral evidence, documents were also brought on record,
which were marked exhibits. They are :-
Ext. 1 Original letter of offer of appointment issued by Sun
Shine Enterprises;
Ext.2 Certificate of Salary
Ext. 3 Attested copy of Pan Card
Ext.4 Passport
Ext.5 Owner Book of the Scooter
Ext.6 Appointment letter dated 01.10.2006 issued by
Eureka Forbes
Ext.7 Letter for working as Social Executive
Ext.8 Telephone Bill
Ext.9 Demand Notice for connection of Telephone
Ext.10 Matriculation Certificate
Ext.11 Certified copy of FIR
Ext.12 Certified copy of chargesheet
And postmortem report has been marked 'X' for identification
8. On behalf of the Insurance Company, no oral evidence was
adduced. Only the Insurance Policy was marked as Ext.'A'.
9. The Motor Vehicle Accidents Claims Tribunal, while finding that
the death was as a result of motor vehicle accident due to rash and negligent
driving of the offending vehicle CG-04HA-5413, the insurance policy was
admitted, there was no evidence to show contributory negligence on the part
of the deceased, has decided the claim case in favour of the claimants. The
Motor Vehicle Accidents Claims Tribunal vide award dated 25.11.2014 has
directed the Insurance Company to make payment of an amount of
Rs.18,45,000/- with interest at the rate of 9% per annum from the date of
admission of the case, i.e., 02.12.2010 till the date of payment.
10. For purposes of arriving at the awarded amount of compensation,
the Tribunal took the income of the deceased to be 8,000/- per month; towards
personal expenses 1/4th of his income has been deducted; enhancement of
50% towards future prospects has been allowed; multiplier of 15 has been
applied; Rs.25,000/- has been awarded under conventional head towards
funeral expenses; Rs.1,00,000/- has been awarded towards loss of consortium
and another Rs.1,00,000/- has been awarded towards love and care and
guardianship.
11. Challenging the aforesaid award in M.A. No.150 of 2015, counsel
for the Insurance Company submitted that the document of the vehicle was not
produced before the Tribunal and, thus, it can be presumed that the offending
vehicle was being driven without any valid document. He further submitted that
the driving licence was not produced before the Tribunal, which would legally
conclude that the driver did not possess any valid driving licence, thus, right to
recovery should have been granted in favour of the Insurance Company. He
further submitted that the income certificate, which has been produced by the
claimants, has been procured after the death of the deceased, thus, should not
have been given any weightage by the Tribunal. Further, he contended that
under the conventional head an amount of Rs.2,25,000/- has been awarded,
which is exorbitant and against the judgment of the Hon'ble Supreme Court in
the case of National Insurance Company Limited versus Pranay Sethi
reported in (2017) 16 SCC 680. Further, as per him, evidence would clearly
suggest that the deceased was at a fault and the accident occurred due to
contributory negligence of the deceased, thus, the amount of compensation
should have been apportioned.
12. The claimants not only opposed the aforesaid contention of the
counsel appearing on behalf of the Insurance Company, but also in the appeal
filed by them, prayed for enhancement. As per the claimants, there is
documentary proof of salary of the deceased, which has not been considered
by the Trial Court in a proper manner. The deceased was also earning an
amount of Rs.7,000/- (Rupees Seven Thousand) by doing part time job, but
the Tribunal has disbelieved the same without any cogent reason.
13. I have also gone through the records of the case. Admittedly, the
deceased died on 23.06.2009 in a road accident in which a truck bearing
registration No. CG 04 HA 5413 was involved. As a result of this accident, the
deceased, who is the husband of claimant No.1 and father of claimant No.2 to
4 and son of claimants Nos.5 and 6, died. He was aged about 37 years. It is
an admitted case that the truck in question bearing registration No. CG 04 HA
5413 was insured with the Oriental Insurance Company Ltd. and the policy
was valid from 15.02.2009 to 14.02.2010, thus, on the date of accident, the
vehicle was insured.
14. P.W.1 is Santosh Kumar Singh. He stated that he had seen the
accident, which occurred on 23.06.2009. As per his evidence, the truck was
being driven in a rash and negligent manner, which dashed the scooter,
resulting in accident of the deceased. Deceased was taken to RIMS where he
died on the same day during treatment.
P.W.2 is the wife of the deceased, who stated that the deceased
was earning Rs.15,000/- per month and after the death, family suffered great
financial set back. She stated that the deceased was aged about 37 years.
She stated that her husband, the deceased was preparing to go to Abudhabi
for job as he was competent enough to work there.
P.W.3 is one Satyanarayan Bhatt. He is a hearsay witness, on the
point of accident. He stated that he was informed about the said accident. He
is the brother-in-law of the deceased. He stated that the deceased was also
working as part time worker and was earning Rs.7,000/- per month and was
earning Rs.8,000/- from one Choudhury Construction, Kilburn Colony, Hinoo,
thus, was earning Rs.15,000/- per month. He stated that the deceased used to
discuss with him and used to say that he is intending to shift to any of the
countries in Middle East and if he would have shifted, he would have earned
much more. In fact, he had received an offer of Rs.70,000/- a month in an
organization in U.A.E. through one placement agency in Delhi.
P.W.4 is Akhilesh Kumar Sinha, who is the Manager of
Choudhary Construction, Kilburn Colony. He stated that the deceased was
working as part time employee in Choudhary Construction and used to attend
from 3 O' Clock. He used to look after Sales Tax Matter and was specialist in
computer. He stated that he also used to work in Kailash Paper Pvt. Ltd.,
Ranchi in the first half. As per him, the deceased used to get Rs.8,000/- per
month from Choudhary Construction. He stated that a certificate showing
salary of the deceased has already been handed over to the claimants, which
has been filed in the Court. He also stated that the deceased was planning to
shift to Middle East countries.
15. Several documents were also exhibited.
Exhibit 1 is a letter by Sun Shine Enterprises, which is dated
08.06.2009. This letter is addressed to the deceased, wherein he has been
informed that he has been provisionally selected for a Supervisory Job in
U.A.E. on a consolidated salary of Rs.70,000/- per month. This letter is just
before the death of the deceased, however appointment did not materialize.
Exhibit 6 is a certificate issued by Eureka Forbes to certify that the
deceased was appointed as Customer Sales Executive with effect from
08.02.2008, with an consolidated pay of Rs.2200/- per month and with
commission and other allowances.
Exhibit 7 is a letter dated 17.12.2002 issued by Bharatiya Jeevan
Dhara Educational and Charitable Trust wherein it has been informed that the
petitioner has been appointed as Social Executive on entitlement of Rs.2,500/-
16. Though these are the documents in support of the income, yet in
oral evidence it has come on record that the deceased was earning
Rs.15,000/- per month as he was serving in two organizations, namely,
Choudhary Construction and Kailash Paper Pvt. Ltd., Ranchi. The
documentary evidence and the oral evidence, so far as employer is
concerned, does not match. Thus, this Court has to go by the oral evidence,
wherein the claimants claim that the deceased was working in Choudhary
Construction. There is no documentary proof that the deceased was earning
Rs.7,000/- additionally, thus, assumption of Rs.8,000/- as per month, made by
the Tribunal, is justified and needs no interference.
17. So far as future prospect is concerned, 50% enhancement has
been awarded. Towards personal expenses 1/4th of the amount has been
deducted, but in the instant case I find that there were six claimants, who were
dependent upon the deceased including old father and mother of the
deceased and three minor children. Thus, actual deduction should have been
1/5th and not 1/4th.
18. Similarly, 2.25 lakh has been awarded under the conventional
head, which is a bit on the higher side in terms of the judgment of the Hon'ble
Supreme Court in the case of Pranay Sethi (supra) but the fact, which cannot
be lost sight of is that deduction on account of personal expenses should have
been 1/5th and not 1/4th. In considered opinion of this Court, the balance would
be maintained if the award is not interfered with. Thus, I find that the quantum,
as assessed by the Tribunal needs no interference.
19. So far as the grounds taken by the Insurance Company is
concerned to assail the impugned award, I find that there is ocular evidence
which states that the death has been caused due to rash and negligent driving
of the offending truck. Further, the Insurance Company did not lead any
evidence in support of their contention that there was contributory negligence.
Insurance Company, if at all wanted to put forth their submission that the
deceased has also contributed to the accident, then in that case Insurance
Company should have led evidence, which they did not do.
20. So far as non-production of documents is concerned, before the
Tribunal, no serious attempt was taken by the Insurance Company in support
of their contention. Merely in an ornamental manner, they had taken the
aforesaid ground, but, serious effort was not taken to contest the aforesaid
issue. Thus, the Tribunal has correctly directed the Insurance Company to pay
the amount of compensation to the claimants.
21. Considering what has been observed above, I find no merit in
both these appeals. Accordingly, both these appeals are dismissed.
(Ananda Sen, J.)
Kumar/Cp-02
