Ragini Devi(Aged About 45 Years) ... vs Deepak Kumar Tarway Son Of Birju ...
2023 Latest Caselaw 4016 Jhar

                                                                     M.A. No.129 of 2020



     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                M.A. No.129 of 2020
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1. Ragini Devi(aged about 45 years) wife of Late Niraj Chaudhary @ Niraj Kumar

2. Krishna Kanhaiya (aged about 26 years) son of Late Niraj Chaudhary @ Niraj Kumar

3. Kumari Shalini (Aged about 18 years) daughter of Late Niraj Chaudhary @ Niraj Kumar The appellant No.3 was a minor now has attained the age of majority after the impugned award;

All resident of village Bengabad P.O. & P.S. Bengabad .... .... Claimants/Appellant(s) Versus

1. Deepak Kumar Tarway son of Birju Ram Tarway Resident of Village-Pethiyatand, Post-Pachamba P.S. Giridih(T), District-Giridih

2. Sri Ram General Insurance Company Limited through Branch Manager, 05th Floor, Signature Tower Katras Road, Matkuria, P.S. Dhanbad, Post-Dhanbad, District-Dhanbad (Jharkahnd) Pin Code-826001 ... .... ....Opposite Parties/Respondent(s)

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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Appellants : Mr. Arvind Kr. Lall, Advocate For the Resp. No.1 : Mr. Anurag Kashyap, Adv.

For the Resp. No.2 : Mr. Ashutosh Anand Adv.

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CAV On 05/10/2023 Pronounced On 17 /10/2023 Heard learned counsel for the parties.

2. Present appeal has been preferred by the appellants under Section 173 (1) of Motor Vehicle Act, 1988 for enhancement of the awarded amount.

Factual matrix

3. Factual matrix of the case giving rise to this appeal is that on 19.07.2015 at about 3:15 pm, while Niraj Kumar Chaudhary (husband of appellant No.1) was travelling in the car of O.P. No.1, which was being driven rashly and negligently at high speed collided with a bridge near Fauzi Line Hotel at village Ghoribad on Dumka-Deoghar Road resulting in severe head injuries to Niraj Chaudhary who was initially treated at Sadar Hospital, Dumka thereafter, shifted to Durgapur hospital for treatment where he died on 20.07.2015 at about 12:25 pm. In connection with above accident Jama P.S. Case No.40 of 2015 was registered for the offences under Sections 279, 337, 338 and 427 of Indian Penal Code and after completion of investigation, charge-sheet was submitted for the offences under Sections 279, 337, 338, 427 and

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304-A of Indian Penal Code against owner-cum-driver of the vehicle(respondent No.1).

4. The case of the claimants is that deceased was self-employed as fish seller and managing pond situated on plot NO.1149 and 1150 appertaining to Khata No.106 under Bengabad Anchal, District-Giridih. The annual income of the deceased was Rs.3.5 lakhs excluding all expenses incurred in the said business. The age of deceased was 42 years and he was saving and investing handsome amount in LIC and Sahara India and also spending Rs.70,000/- per annum towards education of his children. The claimants have claimed the compensation amount of Rs.50 lakhs with interest and cost of treatment of 50,000/-.

5. After service of summons both the respondents appeared and filed their respective written statement.

Respondent No.1/O.P. No.1 has admitted the ownership of the offending car and its insurance w.e.f. 03.02.2015 to 02.06.2016 with the respondent No.2 and submitted that he has all vehicular documents i.e., driving license, registration certificate, insurance policy, pollution certificate etc., as such Shree Ram General Insurance Company Ltd.- Respondent No.2 is liable to satisfy the amount of compensation, if any passed by the Learned Tribunal in this case.

6. The respondent No.2- Shree Ram General Insurance Company Limited apart from several legal pleas objecting against its liability has specifically pleaded that the car of O.P. No.1 was unregistered at the time of accident, therefore, O.P. No.2 has no liability to indemnify the insure and also denied the factual aspects of the case regarding age, income and occupation of the deceased.

7. On the basis of pleadings of the party following issues were settled by the Learned Tribunal for adjudication:-

I. Whether claim application of the claimants is maintainable? II. Whether the claimants have got valid cause of action for claim?

III. Whether Niraj Chaudhary died on account of suffering injuries in vehicular accident due to rash and negligent driving of O.P. No.1 Deepak Kumar Turway owner cum driver of car? IV. Whether O.P. No.1 has violated statutory terms and conditions of policy of Insurance of plying unregistered vehicle on the date of accident?

M.A. No.129 of 2020

V. Whether claimants are entitled for compensation if any and if so from whom and to what extent?

8. In order to substantiate its case, the claimants have adduced oral as well as documentary evidence.

On the other hand, the respondent No.1/O.P. No.1 has proved insurance policy and registration certificate of offending car marked as Ext. A & B respectively.

The O.P. No.2- Shree Ram General Insurance Company Ltd. has adduced no evidence at all.

9. The Learned Tribunal after perusal of oral as well as documentary evidence available on record arrived at conclusion that the deceased death arising out of motor vehicle accident due to rash and negligent driving of car by its owner-cum-driver. It was also observed that the offending car was delivered from the show room on 03.06.2015 and registration number was not mentioned in the insurance policy (Ext.-A). Admittedly, the accident happened on 19.07.2015 and the offending vehicle was registered in the name of O.P. No.1 on 31.05.2016. Learned Tribunal taking into consideration the principles laid down in the case of Civil appeal No.8463 of 2014 Narindar Singh Vs. New India Insurance Company Limited and Ors. (2014) 9 SCC 324 wherein it has been held that using a vehicle on the public place without registration is not only an offence punishable under Section 192 of MV Act but also a fundamental breach of terms and conditions of policy contract, decided the Issue No.4 affirmatively.

10. As regards, decision on core issue no.5, which has been seriously objected in this appeal, the learned tribunal has observed that the oral testimony of witnesses shows the income of deceased to be Rs.3.50 lakhs per annum but no documentary evidence has been adduced to prove the exact income of deceased through business of fisheries as alleged in the claim petition and in examination of chief of the witnesses. There is no document showing any pond was allotted in favour of deceased for the purpose of pisciculture rather Ext. 15 filed by the claimants merely shows that the deceased was appointed as caretaker only in the year 2014 by Ansuchit Jati Matsya Jivi Sahyog Samiti Limited. It was also found that Ext. 13 filed by the claimants shows that in the year 2004 and 2005 Bengabad Ahat was settled for short period in the name of deceased, but he could not deposit revenue amount of Rs.940/- for which he was noticed vide letter No.986 dated

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30.12.2004 by District Fisheries Officer cum CEO, Giridih with a demand to deposit Rs.940/- failing which the settlement could be cancelled. It was also found that deceased has participated in training programme of fish farming (Ext.14). It was also observed that the documents of investment and expenditure can not be treated as monthly/annual income of the deceased. The learned tribunal has also taken into notice that the deceased had some income out of which an amount of Rs.13,969/- in the year 2014, Rs.53,109/- in the year 2015 and Rs.6,664 in the year 2016 was paid towards premium of Life Insurance Policy and on this meager saving, it can not be believed that the deceased was earning Rs.3.50 lakhs per annum rather entire evidence regarding income and saving learned tribunal came to a conclusion about income of deceased to be Rs.6,000/- per month. Accordingly, on the basis of principle laid down in Sarla Verma's case and National Insurance Co. Ltd. Vs. Pranay Shethi and Ors. 2017 (4) TAC 673 (SC), the amount of compensation was computed by deducting 1/3rd towards expenses of deceased by using multiplier of 13 along with future prospect of 25 per cent which comes to Rs.7,80,000/- and also added the loss of estate, loss of consortium and funeral expenses as held by the Hon'ble Supreme Court in the case of Pranay Shethi which comes to Rs.7,80,000/- + Rs.70,000/- = Rs.8,50,000/-. In view of above findings and also considering Ext. 9 and 10 showing expenditure on medical treatment of deceased Rs.39,275/-, awarded the compensation amount of Rs.8.50 lakhs with interest @ 7.5 per cent per annum on the awarded from date of filing this petition till its realization.

11. Learned counsel for the appellant has submitted that several documentary evidence which have been filed by claimants before the learned tribunal along with annual investments and expenditure and maintenance of family members with the rest amount of the deceased, categorically substantiate the annual income of deceased was Rs.3.5 lakhs but the learned tribunal has erroneously ignored the un-rebutted oral as well as documentary evidence of the claimants and fixed the monthly income of deceased arbitrarily on the basis of his own assumption and presumption, which can't be legally sustained. The amount of compensation claimed by the claimants are just, reasonable and genuine, hence, impugned judgment/award is fit to be set aside.

12. Per-contra- learned counsel for the respondents has submitted that the appellants has failed to produce any concrete materials

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regarding income of deceased to be Rs.3.50 lakhs per annum, hence, tribunal has committed no illegality in taking notional income of the deceased. There is no justification for enhancement of compensation amount and this appeal is fit to be dismissed.

13. I have given anxious consideration to over all aspects of the case and findings recorded by learned tribunal on the income aspects of the deceased. It appears that the oral as well as documentary evidence led by claimants in order to substantiate the income of the deceased from business of fish selling and considerable savings in three consecutive years throw light on ascertainable income of the deceased. The learned tribunal has swayed upon some contradictions in the documentary evidence, although not impeached by the opposite parties and fixed the income of deceased to be a very meagre amount which are virtually spent by the deceased in a financial year as shown from documentary evidence.

14. In view of aforesaid discussions and reasons, I am of the firm view that the learned tribunal has improperly considered the income aspects of the deceased and arrived at wrong conclusion in awarding just and reasonable compensation amount in this case. Accordingly, impugned award is set aside and matter is remitted back to MACT, Giridih to consider the matter relating to income of deceased and re- evaluate the documentary evidence relied upon by claimants to prove the income of the deceased and pass a fresh award in accordance with law.

15. The appeal is allowed to the aforesaid extent with no order as to cost.

(Pradeep Kumar Srivastava, J.) Pappu-AFR/-