Jharkhand High Court
Branch Manager vs Urmila Devi on 22 October, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No.245 of 2022
Branch Manager, New India Assurance Co. Ltd., Samantha Complex, First
Floor, Court Road, Giridih, P.O., P.S. & District Giridih
...... ...... Appellant
Versus
1. Urmila Devi, Wife of Late Ashok Modi (1st Wife)
2. Prashant Kumar, son of Late Ashok Modi
3. Rina Devi, wife of Late Ashok Modi (2nd Wife)
4. Anshu Kumari, daughter of late Ashok Modi
5. Aman Kumar, son of Late Ashok Modi
Respondent Nos.4 and 5 are minors and represented through their
mother (Respondent No.3)
All resident of Village Simradhab, P.O. Palonjia, P.S. Birni, District
Giridih. At present residing at C/o Mahabir Prasad Burnwal, Barora, P.O.
Newagarh, P.S. Barora, District Dhanbad ..... .... Respondent
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CORAM: HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. Alok Lal, Advocate
For the Respondent Nos.1 to 5 : Md. Shadab Khan, Advocate
For the Respondent No.6 : Mr. Pramod Kumar Choudhary, Advocate
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C.A.V. on: 01/10/2024 Pronounced on:22/10/2024
JUDGMENT
1. The instant Miscellaneous Appeal has been preferred against the
award dated 30.04.2022 passed by the learned Principal District Judge-cum-
Motor Accident Claims Tribunal, Dhanbad in Motor Accident Claim Case
No.261 of 2018, whereby the learned Tribunal has directed the appellant-
Insurance Company to pay Rs.89,05,359/- to the claimants with simple
interest @ 7.5% from the date of filing of claim petition till its realization
within 30 days from the date of receipt of the judgment. It is further directed
that the aforesaid amount shall be disbursed in equal proportion among the
plaintiff Nos.1, 2, 4 and 5 and the share or plaintiff Nos.4 and 5 shall be kept
in the form of FDR till the date of their attaining majority.
2. Learned counsel for the appellant-Insurance Company has assailed the
impugned award on two grounds. Firstly, the learned Tribunal has not
framed the issue in regard to having the valid and effective driving license
by the driver of offending vehicle at the time of accident and the same being
fundamental breach of the Insurance Policy, as such, no liability can be
fastened to the appellant-Insurance Company. Secondly, the quantum of
compensation has been assailed on the ground that the son of deceased had
got compassionate appointment, therefore, he is not entitled to the amount of
compensation after death of his father as it will amount double benefit to
him.
3. The factual matrix of the claim petition are that on 18.06.2018 at
09:40 pm, the deceased Ashok Modi was walking on footpath way of
Rajdhanwar Sariya Road near Shiv Parvati Vastralay and Bajaj Show Room
at Simradhab, P.S. Birni, District Giridih. The driver of Bajaj Pulsar
motorcycle bearing registration No.JH-11M-0390 came driving the
motorcycle rashly and negligently and dashed to the deceased, as a result of
which, Ashok Modi received multiple and grievous injuries and admitted for
treatment to Community Health Centre, Birni, from there, he was referred to
RIMS, Ranchi. On the way to RIMS, Ranchi, he died on 19.06.2018 at about
01:30 am. The deceased was 48 years old and was a Government Assistant
Teacher in Utkramit Middle School at Markodih, P.S. Birni, District Giridih.
His yearly income was Rs.8,24,494/- and was income tax payee. The FIR of
the very accident was lodged with the police station, Birni, which was
registered as Birni P.S. Case No.83 of 2018 under Sections 279, 337, 338
and 304-A of the Indian Penal Code on 19.06.2018.
3.1 The owner of Bajaj Pulsar Motorcycle bearing registration No.JH-
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11M-0390 is Laxman Nayak, S/o Viltu Nayak, R/o Bagodih, P.S. Suriya,
Giridih and the driver of the said Motorcycle was Gulsan Kumar Saw, S/o
Laxman Saw. The offending vehicle was insured by the New India
Assurance Company Limited bearing policy No.54070231170200003762
valid from 09.02.2018 to 08.02.2019. After his death, he left his 1st widow
Urmila Devi, son Prashant Kumar and 2nd widow Rina Devi, daughter Anshu
Kumari (minor) and son Aman Kumar (minor.
4. On behalf of the opposite party No.1 Laxman Nayak, who is the
owner of the offending vehicle, no written statement was filed.
5. On behalf of the opposite party No.2 The New India Assurance
Company Limited written statement was filed, in which, the averments made
in the claim petition were denied and it was emphasized that the offending
vehicle, which was insured by the opposite party No.2- The New India
Assurance Company Limited was not driven with a valid and effective
driving license. The FIR of the incident was also lodged against Laxman
Nayak and the charge-sheet was also filed against Laxman Nayak but the
driving license was filed on behalf of Gulsan Kumar, son of Laxman Nayak
and nothing on record that at the time of accident, the offending vehicle was
being driven by Gulsan Kumar, son of Laxman Nayak.
6. Against the defendant No.1, namely, Laxman Nayak the claim petition
was proceeded ex-parte.
7. The learned Tribunal on basis of the pleadings of the parties, framed
four issues, which reads as under:
"(I) Whether Ashok Modi (48 years) had died on 18.06.2018 due to
rash and negligent driving of Bajaj Pulsar bearing No.JH-11M-
0390?
(II) Whether the offending bike bearing No.JH-11M-0390 was at
the relevant time of occurrence on 18.06.2018 validly insured with
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the opposite party No.2?
(III) Whether there was any contributory negligence on the part of
the deceased?
(IV) Whether the claimants are entitled to receive any
compensation, if so, from whom and amount of compensation
thereof?"
8. On behalf of the claimants, in oral evidence examined P.W.-1,
Urmila Devi; P.W.-2, Chandrashekhar Rai; P.W.-3, Navin Kumar and;
P.W.-4, Prashant Kumar.
8.1 In documentary evidence on behalf of the claimants filed Exhibit-1,
Salary Slip of deceased Ashok Modi for month May, 2018; Exhibit-1/1,
Salary slip of deceased Ashok Modi for month of April, 2018; Exhibit-2,
Certified copy of FIR; Exhibit-3, Certified copy of charge-sheet; Mark-
X, Photocopy of Postmortem report; Mark -X/1, Photocopy of death
certificate of Ashok Modi; Mark -X/2, Photocopy of Income Tax Return
for assessment year 2017-18 of Ashok Modi; Mark -X/3, Photocopy of
Service Book of Ashok Modi; Mark -X/4, Photocopy of Insurance Policy
of Bajaj Motorcycle No.JH-11M-0390; Mark -X/5, Photocopy of driving
license of Gulsan Kumar Sao and; Mark -X/6, Photocopy of owner book
of Bajaj Motorcycle No.JH-11M-0390.
9. The learned Tribunal after hearing the rival submissions of the learned
counsel for the parties, passed the impugned award on 30.04.2022 and the
amount of Rs.89,05,354/- was awarded in favour of the claimants against the
opposite party No.2-Insurance Company with SI @ 7.5% from the date of
filing of the claim petition till its realization and the Insurance Company was
directed to deposit the same amount along with interest in the bank account
of claimant within 30 days from the date of receipt of copy of the judgment
and the said amount of compensation was directed to be distributed
proportionately to the dependents of deceased.
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10. Aggrieved from the impugned award dated 30.04.2022, the instant
Miscellaneous Appeal has been directed on behalf of the New India
Assurance Company Limited.
11. I have heard the learned counsel for the parties and perused the
materials available on record.
12. The first plea raised on behalf of the appellant-Insurance Company is
that the offending vehicle was being driven by its driver without having a
valid and effective driving license, as such, there being fundamental breach
of the terms and conditions of the Insurance Policy, therefore, the liability
cannot be fastened upon the Insurance Company to pay the compensation, if
any arises.
13. Per contra, the learned counsel for the claimants and the learned
counsel for the owner of the offending vehicle vehemently opposed the
contentions made by the learned counsel for the appellant and contended that
the offending vehicle was being driven by the son of the owner, namely,
Gulsan Kumar Sao. In the claim petition, the driver is shown Gulsan Kumar
Sao even if the FIR was lodged against Laxman Nayak and charge-sheet was
also filed against Laxman Nayak, on very ground, it cannot be accepted that
the offending vehicle was not being driven by its driver with a valid and
effective driving license. On behalf of the claimants, the driving license of
Gulsan Kumar Saw has been filed in documentary evidence, which is
marked -X/5. As such, the learned Tribunal has rightly fastened the liability
upon the Insurance Company to pay the compensation amount to the
claimants.
14. From the very perusal of records, it is found that in the claim petition,
the driver of the offending vehicle was not impleaded as opposite party. The
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owner of the offending vehicle, namely, Laxman Nayak has been arrayed as
opposite party No.1. In the very claim petition, though in the column of the
driver of the offending vehicle, name of Gulsan Kumar Sao is mentioned.
On behalf of the owner of the offending vehicle opposite party No.2, no oral
as well as documentary evidence has been adduced and the claim petition
was proceeded against him ex-parte.
15. In order to decide the legality and propriety of the impugned award
passed by the learned Tribunal, this Court scrutinize the evidence oral as
well as documentary adduced on behalf of the claimants, which are
reproduced hereinbelow:
15.1 P.W.-1, Urmila Devi, in her examination-in-chief on affidavit has
deposed all the averments made in the claim petition and in cross-
examination, this witness has stated that after the death of deceased, she has
not received any pension, gratuity, provident fund, life cover scheme and ex-
gratia amount concerning to her husband. After the death of her husband in
her family, no one has received service on compassionate ground.
15.2 P.W.-2, Chandrashekhar Rai, in his examination-in-chief 0n the
affidavit has deposed in regard to salary received by the deceased. He has
filed the salary slip of month of April and May, 2018. In cross-examination,
this witness says that all the benefits after the death of deceased had been
given to the legal heirs of the deceased by the department and on
compassionate ground, the son of deceased, Prashant Kumar has been
given job on the post of Clerk in the school.
15.3 P.W.-3, Navin Kumar, who is the eyewitness of the accident, in his
examination-in-chief stated that on 18.06.2018, Ashok Modi was walking at
09:40 pm near Shiv Parvati Vastralay and Bajaj Show Room, at the same
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time, from the side of Dhanbad, a Bajaj Pulsar Motorcycle bearing
registration No.JH11M-0390 came, which was driving by its driver rashly
and negligently and dashed to the deceased, whereby he sustained grievous
injuries on the legs and head and was admitted to Primary Health Center
Birni, from there, he was referred to RIMS, Ranchi, amid the away, on
19.06.2018 he died. In cross-examination, this witness says that he does not
know the name of driver of motorcycle and where the driver of the said
motorcycle resides, he is not aware.
15.4 P.W.-4, Prashant Kumar, who is the son of deceased, in his
examination-in-chief on affidavit has deposed all the averments made in the
claim petition and in cross-examination, this witness says that after death of
his father, he has received service on compassionate ground and getting
salary of Rs.19,000/- per month. His mother also gets pension of
Rs.29,600/- per month.
16. From the evidence adduced on behalf of the claimants, there is neither
pleading nor the evidence that the offending vehicle was being driven by
Gulsan Kumar Sao, son of Laxman Nayak at the time of accident.
16.1 On behalf of the owner of the offending vehicle, neither the written
statement nor any evidence oral as well as documentary has been adduced
before the learned Tribunal. Not only this, on behalf of the owner of the
vehicle, this appeal was defended by his learned counsel but also no
pleading or evidence has been adduced in this appeal under Order XLI Rule
27 of the Code of Civil Procedure. The FIR, which is on record filed on
behalf of the claimants, from the perusal of the same, it is found that this FIR
was lodged by Prashant Kumar, son of the deceased on 19.06.2018 and the
date of accident is 18.06.2018 and the time is shown 09:40 pm of night and
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place of accident is shown Simrabad, Shiv Parvati Vastralay and Bajaj
Showroom, Birni Police Station, Giridih. This FIR was lodged against the
driver of the Bajaj Pulsar Motorcycle bearing registration No.JH-11M-0390,
Laxman Nayak, Village Bagodih, P.S. Suriya, District Giridih, which was
registered as Birni P.S. Case No.83 of 2018 on 19.06.2018. From the very
contents of this FIR, it is found that the informant has stated that on
18.06.2018 at 09:40 pm, his father Ashok Modi, he himself, his younger
brother-in-law were walking after having food nearby the road while
walking in between Shiv Parvati Vastralay and Bajaj Show Room, a
motorcycle, bearing registration No.JH-11M-0390 came driving by its driver
rashly and negligently, dashed to his father, whereby he sustained injuries on
head and legs and was rushed to the Community Health Center, Birni, from
there, he referred to RIMS, Ranchi, amid the way, his father died. The said
motorcycle was of Laxman Nayak of Bagodih, P.S. Saria, District
Giridih, which was driven by himself.
16.2 The charge-sheet was filed by the Investigating Officer in Birni P.S.
Case No.83 of 2018, which is also on record. From the very perusal of this
charge-sheet, it is found that among the charge-sheeted witness, Navin
Kumar is also the eyewitness of the accident. The Investigating Officer after
having concluded the investigation, stated that the said accident was caused
by the driver of Bajaj Pulsar Motorcycle bearing registration No.JH-11M-
0390 by driving it rashly and negligently. The said motorcycle was also
seized and the driver of motorcycle was Laxman Nayak, who also
sustained injury. Treatment was given at Dhanbad to him and no
documents of the vehicle were produced to him. After concluding the
investigation, he filed charge-sheet against the driver of the offending
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vehicle Laxman Nayak under Sections 279, 337, 338 and 304-A of the
Indian Penal Code.
17. From the evidence on record, it is proved that the offending
vehicle was being driven by Laxman Sao, the owner of the vehicle
himself as the same is evident from the contents of the FIR and also the
charge-sheet filed by the Investigating Officer.
18. The insurance policy of the offending vehicle is also on record. From
the very perusal of the same, it is found that this policy was valid from
09.02.2018 to 08.02.2019 and the said accident took place on 18.06.2018 at
09:40 pm, as such, the offending vehicle was insured by the New India
Assurance Company Limited on the date and time of accident.
18.1 On behalf of the claimant, the registration certificate of the offending
vehicle is also filed, which was issued on 30.12.2014 on the name of
Laxman Nayak and valid up to 21.11.2029, as such, the registration of the
offending vehicle was also valid and effective on the date and time of
accident. The driving license, which is on record issued on the name of
Gulsan Kumar Sao, son of Laxman Nayak. This driving license though
is valid and effective on the date of occurrence; but the same does not
belong to the driver of the offending motorcycle Laxman Nayak.
Nothing is on record adduced on behalf of the claimants that the
offending vehicle was not driven by Laxman Nayak. The FIR and the
charge-sheet were also against the driver of offending vehicle Laxman
Nayak and the Investigating Officer after concluded the investigation,
stated that the driver of the offending vehicle was Laxman Nayak, who
also sustained injury and he was given treatment in Dhanbad Hospital.
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18.2 Contrary to the documentary evidence, neither on behalf of the
claimant nor on behalf of the owner of the offending vehicle, evidence has
been adduced that under what circumstances the driving license of Gulsan
Kumar Sao was filed, more so, he was not driving the offending vehicle at
the time of accident.
19. Therefore, the very initial burden, which is to be discharged by
the owner of the offending vehicle in regard to driving the offending
vehicle with a valid and effective driving license is not discharged.
Consequently, the onus cannot be shifted upon the appellant-Insurance
Company. The learned Tribunal has recorded no finding at all while
fastening the liability upon the Insurance Company to pay the amount of
compensation. Since there is a fundamental breach of terms and
conditions of Insurance Policy, no liability to pay the compensation can
be fastened upon the appellant-Insurance Company, it is the owner of
the offending vehicle, who has to pay the said amount of compensation
as awarded by the learned Tribunal. Accordingly, first plea raised on
behalf of the appellant-Insurance Company is decided in favour of the
appellant and against the owner of the vehicle.
20. So far as the second plea raised on behalf of the appellant-Insurance
Company challenging the quantum of compensation amount is concerned,
which is on the ground that the son of deceased had got compassionate
appointment after death of his father. This fact is proved by the claimant
witnesses P.W.-2, Chandrashekhar Rai and P.W.-4, Prashant Kumar i.e.
the son of deceased himself. Admittedly, the son of deceased, namely,
Prashant Kumar has got the compassionate appointment after death of
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his father in accident. During his service period has got the job under dying
in harness rules.
21. The crucial question arises whether after having received
compassionate appointment after death of his father in accident, the
claimants are entitled to compensation in Motor Accident Claim Petition or
not?
21.1 The provision of the compassionate appointment after the death of
the employee during his service period is statutory provision in all cases
whether the death is natural, accidental, suicidal or homicidal, the
dependent of the deceased are entitled to compassionate appointment.
Therefore, I am of the view that the compassionate appointment has no
co-relation with the amount of compensation, which the dependents of
the deceased are entitled after the death in motor accident. So far as the
retiral benefits are concerned, the same are also vested right of the retired
employee or his/her dependent. If the retiral benefit has been received by the
dependents of the deceased after his death during service period, the same
has also no co-relation with the amount of compensation to be awarded by
the Motor Accident Claim Tribunal in a motor accident.
21.2 The plea raised by the learned counsel for the appellant-Insurance
Company that the claimants cannot be given double benefit is not applicable
in the case in hand. The learned counsel for the appellant has relied upon the
judgment passed by the Hon'ble Apex Court in the case of Krishna & Ors.
Vs. Tek Chan & Ors. passed in Special Leave Petition (C) No.5044 of 2019.
But the benefit of the same cannot be given to the appellant under the facts
and the evidence on record in the case in hand.
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21.3 The Hon'ble Allahabad High Court in the case of State of U.P. & Anr.
Vs. Satyawati Devi & Ors. reported in (2015)4 ALJ 465 held that the
compassionate appointment or ex-gratia has no co-relation with the amount
received under the Motor Vehicles Act occasioned on account of the
accidental death and same cannot be the ground to deny the compensation,
the relevant part is quoted hereinbelow:
"I do not find substance in the argument of learned Standing Counsel.
Tribunal has recorded a categorical finding that on account of rash
and negligent driving by the driver of the dumper, the said dumper has
fallen in nala, causing death. The argument of learned Standing
Counsel that since the wife of the deceased has been given
compassionate appointment, she is not entitled for compensation as it
amounts to double benefit, cannot be accepted. The compassionate
appointment has been given under the Dying-in-Harness Rules. The
compassionate appointment or ex-gratia has no co-relation with the
amount receivable under the Motor Vehicles Act, 1988 occasioned on
account of accidental death and will not be ground for denying the
compensation under the Motor Vehicles Act, 1988."
22. Therefore, the plea raised by the learned counsel for the appellant-
Insurance Company that on account of receiving the compassionate
appointment by the son of the deceased, the compensation cannot be
awarded is not found sustainable. Accordingly, this very plea is decided
against the appellant-Insurance Company and in favour of the claimants.
23. In view of the critical analysis of evidence on record, this
Miscellaneous Appeal deserves to be partly allowed.
24. Accordingly, this Miscellaneous Appeal is partly allowed and the
impugned award dated 30.04.2022 passed by the learned Principal District
Judge-cum- Motor Accident Claims Tribunal, Dhanbad in Motor Accident
Claim Case No.261 of 2018 in regard to the amount of compensation along
with interest is confirmed; but the liability to pay the compensation amount
by the appellant-Insurance Company is hereby set-aside and in place of
Insurance Company, the opposite party No.2, the owner of the offending
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vehicle is directed to pay the amount of compensation along with interest as
awarded by the learned Tribunal.
25. It is made clear if the amount of compensation, which has been
deposited by the appellant-Insurance Company in compliance of the
impugned award and any portion thereof has been released in favour of the
claimants, the appellant-Insurance Company would be entitled to recover the
same from the owner of the offending vehicle. The statutory amount
deposited by the appellant be also refunded as per rules to the appellant.
26. Pending Interlocutory Application, if any, also stands disposed of.
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated: the 22 October, 2024,
Madhav/- A.F.R.
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