Managing Director vs Molika Devi Wife Of Mithun Kumar ...
2023 Latest Caselaw 4140 Jhar

                                       1                M.A. No. 498 of 2017


             IN THE HIGH COURT OF JHARKHAND, RANCHI
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M.A. No. 498 of 2017

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Managing Director, Oriental Insurance Company Ltd., through Branch Manager, Oriental Insurance Company Ltd., Lalpur, Ranchi .... Appellant

-- Versus --

1.Molika Devi wife of Mithun Kumar Pandit

2.Jamila Khatoon, wife of late Tajmul Hussain .... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellant/Ins.Co. :- Mr. G.C. Jha, Advocate For the Respondents :- Mr. Birendra Kumar, Advocate

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16/06.11.2023 Heard Mr. G.C. Jha, the learned counsel appearing on behalf

of the appellant/Insurance Company and Mr. Birendra Kumar, the learned

counsel appearing on behalf of the respondent-claimant.

2. Being aggrieved and dissatisfied with the judgment/award

dated 23.05.2017 passed by learned 2nd Additional Sessions Judge- cum-

Motor Accident Claims Tribunal, Deoghar in Motor Accident Claim Case

No.18 of 2015, the present application has been preferred by the

appellant/ Oriental Insurance Company.

3. The claim petition was filed under section 166 of Motor

Vehicles Act, 1988 by the wife of the injured namely, Mithun Kumar

Pandit. The respondent no.2 filed the said application stating that one

Sohan Pandit has lodged the fardbeyan at Sadar Hospital at Deoghar on

02.05.2014 at 12.15 p.m stating that he is admitted in Sadar Hospital,

Deoghar at bed no.6 and further stated that on 01.05.2014 that his wife

was referred to Sadar Hospital at Deoghar for better treatment because

she was suffering from serious headache and on that day she was

coming from Bolero Jeep of which the number was not known to him and

just he has come forward about 04 Kilometers from Sarath. It was about

5 O'clock of the morning hours, the driver of Bolero Jeep had stopped

the vehicle by the side of the road and was removing some mechanical

problems and in the meantime, a Tata Sumo Jeep coming from opposite

direction in a rash and negligent speed dashed against the standing

Bolero vehicle in which this informant was sitting. By this accident this

informant along with his four family members become seriously injured

and nearby persons assembled there and by an ambulance he was

brought to Sadar Hospital, Deoghar where he had been admitted and he

is under treatment and pursuant to that, Sarath Mudhupur Sarath

P.S.Case No.42 of 2014 dated 05.05.2014 was registered against the

driver of Tata Sumo Jeep bearing registration no.JH04G8398 and after

investigation the police submitted charge sheet against Anwar Ansari the

driver of the Tata Sumo vehicle bearing registration No.JH 04G 8398 and

thereafter the cognizance was taken. It was stated that injured Mithun

Kumar Pandit received head injury, the injury in his chest which was such

a serious injuries that his both legs have been fractured, the bone of his

waist has been fractured, the bone of his mandible has also been

fractured. He was treated at several sophisticated hospital however the

ailment has not been cured. It was stated that Mithun Kumar Pandit

moves on wheel chair and he has not been able to do any work and even

the daily routine work, he was not able to do.

4. The learned Tribunal has framed the issues and considering

the documents as well as the oral evidence has passed the award

directing the insurance company to pay a sum of Rs.32,54,260/- and

interest @ 7.5% quarterly compoundable to claimant in compensation for

the injuries caused to Mithun Kumar Pandit and further directed that

50% of the total amount of compensation will be fixed in the fixed

deposit in the name of the injured namely, Mithun Kumar Pandit for a

period of ten years in any nationalized bank and rest of the amount was

directed to be handed over to the claimant who is the wife of the injured

to better look after of the said injured. Aggrieved with this, the insurance

company has preferred this appeal.

5. Mr. G.C. Jha, the learned counsel appearing on behalf of the

appellant-Oriental insurance company at the outset submits that the

injured was alive and in view of that, the claim application by his wife is

not maintainable and he refers to section 166 of the Motor Vehicles Act,

1988, particularly, sub-section (a) and (e) of the said section of Motor

Vehicles Act, 1988. He draws the attention of the two orders passed by

the coordinating Bench of this Court in the present appeal order dated

28.11.2017 and 04.05.2022 and submits that considering this aspect of

the matter observation is there as to how the appeal is maintainable by

the wife under section 166 of the Motor Vehicles Act, 1988. He further

submits that the learned Tribunal has wrongly relied in the case of Raj

Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 and he

distinguishes the said order by way of placing reliance on paragraph

nos.17, 18 and 25 of the said judgment. He further submits that the

disability was only 60 % whereas the learned court has treated as 100%.

He further submits that in absence of any documentary evidence

Rs.10,000/- of the income found by the learned Tribunal is not in

accordance with law. He submits that in view of the several judgments,

the income was required to be considered at Rs.3000/- as the injured

was only a student of B.A. (Part-II) and was not doing any job. He

submits that in absence of examination of the doctor, the learned court

has come to 100% disability which is against the mandate of law and to

buttress his argument, he relied in the case of The New India

Assurance Co. Ltd. v. K. Kanagasabapathy and Ors, 2003(1) JLJR

109 and on the same point he further relied in the case of Oriental

Insurance Co. Ltd. v. Johan Sah @ Md. Johan and Others, 2001 2

JLJR 163. He further submits that 7.5 % interest has been directed to

be calculated quarterly compoundable which is against the mandate of

law and on this ground, he submits that the Tribunal's judgment/ award

is bad in law and the same may kindly be quashed.

6. Per contra, Mr. Birendra Kumar, the learned counsel

appearing on behalf of the respondent/claimant draws the attention of

the Court to several paragraphs of the judgment/ award of the learned

Tribunal. By way of referring paragraph no.4 of the said judgment/award

he submits that the learned court has taken note of fact that injured

namely Mithun Kumar Pandit has been examined in so many

sophisticated hospitals for saving his life. He submits that the learned

court in that paragraph has considered the injury received by the injured.

He submits that the document/Ext.5 was the certificate of disability

issued by the office of the civil surgeon, Deoghar and considering that

aspect of the matter and further considering in paragraph no.8 of the

award, to the effect that Mithun Kumar Pandit was present in the court

on wheel-chair and the court himself has looked at him and has come to

the injury conclusion. He submits that so far as section 166 of the said

Act is concerned, maintainability point has been decided in paragraph

no.11 of the said judgment. He further submits that the learned court in

paragraph no.12 of the judgment has rightly calculated the earning

considering that the injured was earning Rs.10,000/- by way of tuition.

He submits that 50% of the awarded amount has been directed to be

fixed in the name of the injured and the rest amount was only directed to

be received by the claimant as she is looking after her husband who is

injured. He submits that the injury under motor vehicle accident was held

undermine dignity of the individual which is now recognized as an

intrinsic component of the right to life under Article 21 of the Constitution

of India in the case of Sidram v. Divisional Manager, United India

Insurance Company and Another, (2023) 3 SCC 439. Paragraph

nos. 16 and 20 of the said judgment are quoted below:

"16. It is further submitted that the appellant had been operated upon twice and has undergone a great deal of pain and suffering in lieu of the accident and has had to give up his vocation as a consequence of the grievous nature of the injuries sustained. This Court in Ramesh v. Karan Singh

[Ramesh v. Karan Singh, (2023) 11 SCC 801 : 2022 SCC OnLine SC 1239] dated 16-9-2022 was pleased to grant compensation to the tune of Rs 4,00,000 after taking notice of the grievous nature of the injuries sustained by the claimant in the said matter and taking into consideration that he had been operated upon 5 times. In light of the same, it would be reasonable to award compensation of Rs1,00,000 to the appellant under the head of pain and suffering.

20. It is pertinent to point out herein that the claim of the appellant claimant before the Tribunal was only Rs 25,00,000.

However, it is submitted that this Court in Nagappa v. Gurudayal Singh [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : 2003 SCC (Cri) 523] , and in Laxman v. Oriental Insurance Co. Ltd. [Laxman v. Oriental Insurance Co. Ltd., (2011) 10 SCC 756 : (2012) 3 SCC (Civ) 1095 : (2012) 1 SCC (Cri) 108] , had categorically stated that there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claim amount."

7. By way of referring above judgment, he submits that even

for pain and suffering the Hon'ble Supreme Court has passed the award

of compensation. He submits that considering the injury in that case, the

Hon'ble Supreme Court has enhanced the compensation in spite of the

fact that the claim was only made to the tune of Rs.25 lacs. By way of

referring the case of Oriental Insurance Company Limited v.

Kahlon @ Jasmail Singh Kahlon (deceased) through his legal

representative Narinder Kahlon Gosakan and Another [arising

out of SLP (C) No.2873 of 2021], he submits that the medical

expenses and the award was further enhanced in the said case and he

refers to paragraph no.21 of the said judgment. On this ground he

submits that there is no illegality in the award passed by the learned

Tribunal.

8. The Court has gone through the learned court record as

well as the judgment/ award dated 23.05.2017. It is an admitted fact that

the accident has taken place and the injured namely, Mithun Kumar

Pandit received the disability which has been assessed by the office of

the civil surgeon, Deoghar to that effect which has been marked as Ext.5.

Looking to the award part, it appears that the insurance company has

not objected to the said report of the civil surgeon. The first contention

with regard to maintainability of the appeal filed by the appellant, it

appears that Motor Vehicles Act, 1988 does not define the expression

'legal representative' in section 166 of the said Act or any of the defining

sub section (2) of the said Act. Therefore, the definition of 'legal

representative' has provided in section 2(11) of the Civil Procedure Code

has to be referred. Thus, a person, who in law, represents the estate of

the deceased or a person who intermediates with the estate of the

deceased, could be the legal representative of the deceased within the

meaning of Motor Vehicle Act. In the case in hand, admittedly, the wife is

the claimant of the injured and the wife is the first class legal heir/

successor of any person. In view of that, the first point of Mr. Jha, the

learned counsel appearing on behalf of the appellant/ insurance company

with regard to maintainability of the case filed by the wife is negated by

this Court.

9. The second contention of Mr. Jha, the learned court for the

appellant/ insurance company that the doctor has not been examined is

concerned, the Court finds that strict rules of evidence cannot be made

applicable in a case of this nature arising out of a beneficial legislation.

Admittedly, the injured was examined in several hospitals and that aspect

of the matter was considered by the Tribunal in paragraph no.4 of the

judgment. It will be a travesty of justice if the victim is asked to present

each and every doctor only to move the particular doctor had treated him

and will result in defeating the object of Motor Vehicle Act mean to

mitigate suffering of accident victim. The Court finds that there is no

reason to disbelieve the document on record which is Ext.5 relied by the

claimant. When the medical bills speak for themselves coupled with

medical records, there is no room to doubt nature of treatment given and

expenses incurred thereon and in view of that, those judgments relied by

Mr. Jha, the learned counsel for the appellant/ insurance company with

regard to examination of the doctor is not tenable. Accordingly, the said

contention of the appellant is not accepted by the Court.

10. The principle with regard to the loss is required to be

considered and one aspect relates to impairment of person's earning

capacity while the other relates to pain or suffering due to loss of

enjoyment of life caused by the disability. When victim suffers from

temporary or permanent disability, the efforts must be made to award

adequate compensation not only for physical injury but also for pain,

suffering and trauma caused due to the accident, loss of earnings and

the victim's inability to lead a normal life and enjoy amenities. A

reference may be made to the case of ICICI Lombard General

Insurance Company Limited v. Ajay Kumar Mohanty and

Another, (2018) 3 SCC 686. Wherein at paragraph nos.8 to 10 it has

been held as under:

"8. In arriving at the quantification of compensation, we must be guided by the well-settled principle that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the person's capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the person himself.

9. In Laxman v. Oriental Insurance Co. Ltd. [Laxman v. Oriental Insurance Co. Ltd., (2011) 10 SCC 756 : (2012) 3 SCC (Civ) 1095 : (2012) 1 SCC (Cri) 108] , this Court held thus : (SCC p. 762, para 15) "15. The ratio of the abovenoted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim's inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."

10. In Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683 : (2012) 3 SCC (Civ) 1082 : (2012) 1 SCC (Cri) 82 : (2012) 1 SCC (L&S) 422] , this Court after referring to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd. [R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551 : 1995 SCC (Cri) 250] , Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka [Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 : (2009) 2 SCC (Civ) 688] , Reshma Kumari v. Madan Mohan [Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044] , Arvind Kumar Mishra v. New

India Assurance Co. Ltd. [Arvind Kumar Mishra v. New India Assurance Co. Ltd., (2010) 10 SCC 254 : (2010) 4 SCC (Civ) 153 : (2010) 3 SCC (Cri) 1258] , Raj Kumar v. Ajay Kumar [Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] held thus : (Govind Yadav case [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683 : (2012) 3 SCC (Civ) 1082 : (2012) 1 SCC (Cri) 82 : (2012) 1 SCC (L&S) 422] , SCC p. 693, para 18) "18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. [Arvind Kumar Mishra v. New India Assurance Co. Ltd., (2010) 10 SCC 254 : (2010) 4 SCC (Civ) 153 : (2010) 3 SCC (Cri) 1258] and Raj Kumar v. Ajay Kumar [Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."

These principles were reiterated in a judgment delivered by one of us (Justice Dipak Misra, as the learned Chief Justice then was) in Subulaxmi v. T.N. STC [Subulaxmi v. T.N. STC, (2012) 10 SCC 177 : (2012) 4 SCC (Civ) 1100 : (2013) 1 SCC (Cri) 1]"

11. If the victim of accident suffers permanent disability, then

efforts should be there to make the award for adequate compensation

not only for physical injury and treatment but also for loss of earning and

inability to lead a normal life and enjoy amenities which he would have

enjoyed but for the disability caused due to the accident. The injured was

a student of B.A. (Part-II) and he was giving tuitions and was earning

Rs.10,000/- that was the finding of the learned Tribunal. Now-a-days, to

earn a sum of Rs.10,000/- by way of making tuition, cannot be ruled out

considering the fact that many educational institutions either private

coaching earning huge amount and middle class family depend upon the

private tuition and a competent person by way of providing that tuition,

earning of Rs.10,000/- cannot be ruled out. Thus, the third contention of

the appellant /insurance company is also rejected.

12. The Court finds that the 50% of the awarded amount has

been directed to be deposited in the form fixed deposit in favour of the

injured and only 50% has been directed to be paid to the wife who is

looking after the injured. In view of that also, the Court finds that there

is no interference required. The direction of the award with regard to

50% of the total amount to be deposited in favour of the injured shall be

completed and for that, the learned Tribunal will take action at the time

of satisfying the award.

13. The Court finds that interest @7.5% quarterly

compoundable is not in accordance with law and, accordingly, that part

of the order is modified to the effect that the interest only @ 7.5 % per

annum will be available.

14. Accordingly, the award dated 23.05.2017 passed by learned

2nd Additional Sessions Judge-cum-Motor Accident Claims Tribunal,

Deoghar in Motor Accident Claim Case No.18 of 2015 is modified to the

above extent only, and the Court has not interfered with the rest of the

award which is kept intact.

15. The statutory amount deposited before this Court shall be

transmitted back to the learned Tribunal and the same will be utilized in

satisfying the award.

16. The learned Tribunal shall take efforts to satisfy the award

within two months from the date of receipt/ production of a copy of this

order.

17. With the above modification in the award dated 23.05.2017

passed in M.V. Claim No.18 of 2015, the M.A. No.498 of 2017 is disposed

of.

18. Pending petition, if any, also stands disposed of accordingly.

19. Let the L.C.R be sent back to the learned Tribunal forthwith.

( Sanjay Kumar Dwivedi, J.)

SI/, A.F.R.