National Insurance Co. Ltd vs Chanda Devi
2023 Latest Caselaw 1897 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Civil Miscellaneous Appellate Jurisdiction)
                                M.A. No. 426 of 2018
                                        ......

      National Insurance Co. Ltd.                                 ...... Appellant
                                        Versus
      1.Chanda Devi
      2.Usha Kumari
      3.Ashok Keshri
      4.Chandan Malakar                                           . .......Respondents
                                        ......
      CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                                        ......
      For the Appellant                       : Mr. G.C. Jha, Advocate
      For the Respondent no.1                 : Mr. Onkar Nath Tiwary, Advocate
      For the respondent no.3                 : Mr. Sudhansu Kumar Deo, Advocate
                                        -----

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

08/ Dated: 03/05/2023 I.A. No.6253 of 2018

Learned counsel for the appellant/National Insurance Co. Ltd., Mr. G.C. Jha has submitted that the instant Interlocutory Application being I.A. No. 6253 of 2018 has been filed for condonation of delay of 71 days in preferring the instant Miscellaneous Appeal.

Learned counsel for the appellant/National Insurance Co. Ltd., Mr. G.C. Jha has further submitted that no counter-affidavit has been filed by the respondents opposing the condonation of delay, as such, the delay may be condoned.

Accordingly, I.A. No.6253 of 2018 is allowed, the delay of 71 days is condoned.

M.A. No.426 of 2018 Heard, learned counsel for the appellant/National Insurance Co. Ltd., Mr. G.C. Jha, learned counsel for the respondent no.1, Mr. Onkar Nath Tiwary and learned counsel for the respondent/owner, Mr. Sudhansu Kumar Deo.

Learned counsel for the respondent/owner, Mr. Sudhansu Kumar Deo has submitted that respondent no.3 (Ashok Keshri, S/o Ram Das Keshri, R/o Mohalla June Pokhar, P.O. B. Deoghar, P.S. Deoghar, District- Deoghar, Jharkhand, owner of the vehicle Auto Rickshaw bearing Registration No.JH-15B-4418 having Insurance Policy No.171002/31/05/6300000171) has already appeared, as such, appearance of the driver of the offending vehicle, namely, Chandan Malakar, S/o Naresh Malakar, R/o Village Bachehoniya, P.S. Sangrampur, Distt- Mungher is not required for adjudication of the case.

Learned counsel for the appellant, Mr. G.C. Jha and learned counsel for the respondent no.1, Mr. Onkar Nath Tiwary have no objection.

Accordingly, the matter is being taken up for final disposal with consent of

the learned counsel for the parties.

Learned counsel for the appellant, Mr. G.C. Jha has submitted, that Insurance Company has preferred this Miscellaneous Appeal against the award dated 31.01.2018 passed by Motor Vehicle Accident Claim Tribunal-cum-District Judge-III, Deoghar in Motor Vehicle Accident Claim Case No.13 of 2006, whereby the claimants, namely, 1.Chanda Devi, W/o Late Jai Prakash Keshri and 2.Usha Kumari, D/o Late Jai Prakash Keshir have been awarded compensation to the tune of Rs.14,86,544/- (after deduction Rs.50,000/- which has already been paid under Section 140 of the M.V. Act) along with simple interest @ 6 % per annum from the date of filing of the claim application to be paid by cross cheque/ demand draft in the name of claimants within 30 days from the date of receipt of copy of the order, failing which, the National Insurance Company shall be liable to pay and make payment of compensation to the claimants on the aforesaid awarded amount along with interest @ 9% per annum till the award is indemnified.

Learned counsel for the appellant/National Insurance Co. Ltd., Mr. G.C. Jha has assailed the impugned award and submitted, that there is serious discrepancies in the name of driver of the offending vehicle as it appears from the FIR, chargesheet and cognizance order, but while bringing evidence in the claim case the name of the driver has been changed, as such, the driving licence of wrong person has been brought on record, which may be taken note of and the impugned order may be set aside.

Learned counsel for the appellant/National Insurance Co. Ltd., Mr. G.C. Jha has further submitted, that the computation of compensation as mentioned in para 11 at page no.5 of the impugned judgment is on excessive side, as because, the deceased Jaiprakash Keshri @ Jaiprakash Bhagat was found to be 45 years in the postmortem report and the photocopy of the postmortem report has been shown to the learned counsel for the claimants and the photocopy of the same has also been given to the Court to keep it on record, but the learned Tribunal has considered the age of deceased as 40 years, which ought to have been considered to be 45 years and the multiplier, ought to have been 14 instead of 16, in view of the judgment passed by the Hon'ble Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 (para 42).

A photocopy of the postmortem report is taken on record.

Learned counsel for the appellant/National Insurance Co. Ltd., Mr. G.C. Jha has further submitted, that under the conventional head, excess amount has been granted contrary to the judgment passed by the Hon'ble Apex Court in the case of

National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 (para 59.8).

Learned counsel for the appellant/National Insurance Co. Ltd., Mr. G.C. Jha has further submitted, that the interest has been granted exorbitantly, which ought to have been @ 7.5% per annum from the date of filing of the claim application till indemnifying the award in view of the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. State Road Transport Corporation, reported in (2008) 4 JCR 79 SC = (2008) 12 SCC 208 (para 14).

Learned counsel for the appellant, Mr. G.C. Jha has thus submitted, that the impugned order is fit to be set aside.

Learned counsel for the respondent/owner, Mr. Sudhansu Kumar Deo has submitted that the date of accident is 30.10.2005, the vehicle got registration converting goods carrying vehicle into passengers carrying vehicle with effect from 06.08.2005, which has been brought on record as Exhibit-A and there is no latches on the part of the owner of the offending vehicle, so as to fasten the liability upon the owner as the vehicle was duly insured with the Insurance Company and there is no finding against the owner of the offending vehicle.

Learned counsel for the respondent no.1, Mr. Onkar Nath Tiwary has submitted, that the learned Tribunal has not mentioned the age of the deceased as mentioned in the postmortem report and as per the claim application, the deceased has been considered to be 40 years, as such, this Court may not interfere with the same.

Learned counsel for the respondent no.1, Mr. Onkar Nath Tiwary has fairly submitted, that in view of the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Chamundeswari and Ors. reported in 2021 SCC OnLine SC 849 (para 8), the plea taken by the Insurance Company is not sustainable in the eyes of law, as the Hon'ble Apex Court has held that in view of such evidence on record there is no reason to give weightage to the contents of the FIR. If any evidence before the learned Tribunal runs contrary to the contents of the FIR, the evidence, which is recorded before the learned Tribunal has to be given weightage over the contents of the FIR and as such, the objection raised by the Insurance Company is fit to be rejected as the evidence before the learned Tribunal is to be considered and there was ample opportunity to the Insurance Company to rebut the same by cross-examining the witnesses or by bringing on record the evidence contrary to the case of the claimants, as such, the objection raised by the appellant- Insurance Company may be rejected.

So far multiplier is concerned, since the postmortem report says about the age of deceased as 45 years, which has not been brought on record though photocopy has been given to this Court, as such, this Court is not inclined to accept the same, accordingly, the same is hereby rejected as there is specific mentioning of the age of the deceased at para 2 of the impugned award to be 40 years. The Insurance Company has not brought the postmortem report on record as it appears from paras 5 and 6 of the impugned award as such, the plea taken by the Insurance Company is not acceptable to this Court as no contrary evidence has been brought on record. Even the postmortem report has not been marked as Exhibit though the photocopy has been given to this Court, but this Court cannot not behave like a learned Tribunal, to upset a finding without having legal evidence.

So far the computation of compensation under conventional head is concerned, it is true that excess amount has been awarded, which ought to have been Rs.70,000/- in view of the judgment passed by the Hon'ble Apex Court in the case of Pranay Sethi (Supra) para 59.8. (loss of Estate- Rs.15,000/-, loss of consortium- Rs.40,000/- and funeral expense- Rs.15,000/-).

The new calculation chart would be as follows :-

  Income                                   Rs.257.99/- per day (Rs.257.99/- x 30
                                           = Rs.7740/- per month approx)
  Annual Income                            Rs.7740/- x 12= Rs.92,880/-

Future Prospect @ 25% as the Rs.92,880/- + Rs.23,220/-

deceased was aged 40 years = Rs.1,16,100/-

[National Insurance Company Ltd.

  vs. Pranay Sethi, reported in (2017)
  16 SCC 680 at para 59.4]
  1/3 deduction towards personal and        Rs.1,16,100/- minus Rs.38,700/- =
  living expenses [Sarla Verma (Smt)        Rs.77,400/-
  & others vs. Delhi Transport
  Corporation & another, reported in
  (2009) 6 SCC 121 at para 30]
  Multiplier as 15 as deceased was in       Rs.77,400/- x 15 = Rs.11,61,000/-
  the age group of 36-40 [Sarla
  Verma (Smt) & others vs. Delhi
  Transport Corporation & another,
  reported in (2009) 6 SCC 121 at
  para 42]
  Conventional     Head     [National       Rs.70,000/-
  Insurance Company Ltd. vs.                [loss of Estate- Rs.15,000/-, loss of
  Pranay Sethi, reported in (2017) 16       consortium- Rs.40,000/- and funeral
                                            expense- Rs.15,000/-]
  SCC 680 at para 59.8]
  Total Compensation Amount                 Rs.11,61,000/- +     Rs.70,000/-    =
                                            Rs.12,31,000/-.

Amount of Rs.50,000/- has already been indemnified to the claimants under Section 140 of the Motor Vehicle Act, 1988 thus, the compensation amount comes to Rs. 11,81,000/-. The same shall be payable to the claimants along with interest @ 7.5% per annum from the date of filing of the claim application till the date of indemnifying the award in view of the judgment passed by the Hon'ble Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation [2008 (4) JCR 79 (SC)] (para 14).

Accordingly, the instant Miscellaneous Appeal is hereby allowed. The awarded amount along with interest shall be paid in the nationalized bank account of the claimants.

The learned counsel for the claimants is directed to provide the account number of the claimants of any nationalized bank to learned counsel for the Insurance Company or the learned Tribunal / Executing Court within a period of two weeks.

It is expected that since the occurrence is of dated 30.10.2005, the Insurance Company shall indemnify the enhanced amount within a period of 60 days along with interest @ 7.5% per annum from the date of filing of the claim application.

The statutory amount deposited by the Insurance Company shall be remitted to the learned Tribunal / Executing Court and if it is in excess of the awarded amount paid by the Insurance Company, the same shall be returned to the Insurance Company otherwise the same shall be disbursed to the claimants.

(Kailash Prasad Deo, J.) R.S./