Jharkhand High Court
Tata Aig General Insurance Co. Ltd. ... vs Shahwaz Khan on 9 April, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:11206
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 638 of 2016
TATA AIG General Insurance Co. Ltd. Having its office at 2nd Flood, M.R
Tower, Line Tank Road, Main Road P.O.GPO, P.S. Kotwali Ranchi_834001
through its Chief Manager Claims- Jayanta Roy having its office at
Constantia Office Complex, 2nd Floor 11, Dr. U.N. Brahmachari Street
Kolkata- 700017 West Bengal.
.... .... .... Appellant
Versus
1. Shahwaz Khan, S/o Enamul Khan, R/o Village Kathitand, P.O., P.S. Ratu,
Dist. Ranchi.
2. Rakesh Ranjan, S/o Sri M.K. Singh, R/o village Ashok Nagar, Near
Pushpanjali Cinema Hall, Khaleri, P.O., P.S. Khaleri, Dist. Ranchi.
. .... ..Respondents
CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.......
For the Petitioner : Mr. Ashutosh Anand, Advocate
For the Claimant : Mr. Nikhil Ranjan, Advocate
......
19/ 09.04.2025. Heard, learned counsel for the parties.
1. The appellant/ Insurance Company is in appeal against the
judgment and Award of compensation under Section 166 of the M.V.
Act passed by learned Presiding Officer, Motor Vehicle Accident
Claims Tribunal, Ranchi, in Compensation Case No.76 of 2012
which has been awarded for the permanent disablement suffered
by the Claimant (Sahbaj Khan).
2. The finding of facts recorded by the learned Tribunal regarding the
factum of incidence is not in challenge.
3. On 26.01.2012, respondent No.1/claimant (Sahbaj Khan) was
driving Motorcycle on which two pillions were riding along with him.
The accident took place involving a Truck bearing Registration
No.JH01Z 3981 in which the claimant/ respondent No.1 sustained
permanent disability to the extent of 40%, whereas Sahil Khan
sustained fatal injuries and died of it and one Arman Ansari also
suffered permanent disability.
4. The learned Tribunal held that there was 30% contributory
negligence on the part of the claimant, Sahbaj Khan & Ors, and
awarded compensation of Rs.7,52,486/- by taking Rs.12,000/- as
his monthly income from tyre repairing business.
5. It has not been disputed by the appellant- Insurance Company that
the vehicle was under its insurance cover.
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6. The main plea that has been raised to assail the quantum of
compensation is on two counts :-
Firstly in view of the ratio laid down by the Apex Court in the case
reported in 2011(1) SCC 343 [Raj Kumar vs. Ajay Kumar & Anr.], it
was incumbent on the part of the Tribunal to assess the loss of
Future income by taking into account the functional disability
resulting from the said accident and it is submitted that, the learned
Tribunal mechanically applied the physical disability for assessing
the Future loss of income.
Secondly, it is argued that as per the pleadings of the claimant in
the claim petition, he was having a monthly income of Rs.12,000/-
from the business of Auto-rickshaw in which he was a Driver.
However, in the evidence, a completely new story has been sought
to be set up that the claimant was having a monthly income of
Rs.12,000/- from the business of tyre repairing of the tyres of motor
vehicles. The evidence was beyond the pleadings and therefore
should not have been accepted. It is contended that provision of
motor vehicle claim case is indeed a beneficial piece of legislation,
but it does not mean that the provisions of pleading and evidence
have no application in these cases.
7. Even otherwise there is no details with regard to the business being
carried out from which it can be inferred that the claimant was
earning a sum of Rs.12,000/- per month by the deceased.
Considering the nature of business, the very assessment of monthly
income of Rs.12,000/- in the year 2012 is excessive and
extravagant.
8. It is contended that in the claim case of Arman Ansari, it has been
decided in the same case by the same judgment, the learned
Tribunal has accepted only notional income for determining the
compensation amount.
9. It is also argued that impairment of 40% will not affect the functional
disability considering the occupation in which the claimant was
involved.
10. Mr. Nikhil Ranjan, learned counsel for the claimant/ respondent
No.1 has strongly contested the instant Misc. Appeal and argued
that there was typographical error in the claim petition with regard
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to occupation of the claimant's claim and therefore his occupation
of tyre business could not be pleaded. However, there is consistent
evidence that the claimant was having monthly income of
Rs.12,000/- from the business of repairing of tyres. Law is settled
that in claim cases, the strict rules of pleading do not apply.
Considering the nature of occupation, 40% of disablement in
locomotion amounted to 100% functional disability.
11. It is further contended that this is a fit case for enhancement of
the compensation as the contributory negligence could not have
been attributed to the deceased, for not wearing the helmet and
driving the vehicle with two other pillion riders. Reliance in this
regard is placed on 2020 (3) SCC 57 at Para-12.
12. In reply, it is argued by learned counsel for the appellant-
Insurance Company that the instant Misc. Appeal has been
preferred by the Insurance Company, therefore, claimant is not
entitled for enhancement of the compensation in view of the ratio
laid down by the Apex Court in the case, reported in 2018 (8) SCC
492.
13. Having considered the submissions advanced on behalf of both
the sides and the materials on record, it is difficult to agree with the
argument advanced on behalf of the claimant/Respondent No.1 that
in claim cases, the rules of evidence and pleadings are to be given
a complete go-bye. It's true that adjudication in claim cases do not
proceed like an adversarial litigation and the rules of procedure and
evidence do not strictly apply, but to contend that they have no
application is some what outlandish.
14. It is definite case of the claimant in the claim application that he
was having a monthly income of Rs.12,000/- from Auto-Rickshaw
in which he was working as Driver. There was not a whisper about
any tyre business. During enquiry, before the Tribunal, a new case
was developed that he was also having the income from repairing
of tyres, but nowhere in his examination- in- chief, any description
of the place from which the said business was being carried out has
been given. The claimant who was examined as AW.3 has deposed
in his cross-examination at Para-15 that the said job/ business was
somewhere near Ratu, Kathi Tand, Ranchi. If such evidence is
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accepted to assess the monthly income, inquiry will be reduced to a
farcical exercise and any monthly income can be claimed without
any pleading or cogent evidence.
15. This Court is of the view that the learned Tribunal has erred in
assessing monthly income of Rs.12,000/- from the tyre business. In
absence of any consistent evidence, the only course open in such
case is to assess the monthly income on the basis of notional
income.
16. Considering the fact that the claimant was not in an intellectual
profession, earning capacity will certainly be impacted to the extent
of permanent disablement of 40% suffered by him. So far as the
contributory negligence of the claimant is concerned, it is to be noted
that FIR has been adduced into evidence which has been marked
as Ext.1 which was lodged against the Driver of the Truck and after
investigation, charge-sheet has also been submitted against the
Driver of the Truck (Gulab Khan). The witnesses have also
attributed the accident caused by the driver of the offending truck.
Therefore, in absence of any evidence that the triple riding was the
proximate cause for accident, the finding of contributory negligence
to the extent of 30% is not sustainable and is accordingly set aside.
17. Taking Rs.30,000/- per year as the Notional income of the
claimant, the loss of Future income will work out as under :-The
claimant was 21 years of the age at the time of accident, the loss of
Future income on account of disability will work out to be
Rs.30,000/- X18 =Rs.5,40,000/- and Rs.5,40,000/- Plus
Rs.5,40,000/-X 40% = Rs.7,56,000/-
As the claimant suffered 40% physical disablement, therefore,
pecuniary loss under the head of Loss of Future income will be
Rs.3,02,400/-.
18. Accordingly, the claimant will be entitled to get the amount which
is as follows :-
1 Loss of Future income Rs.3,02,400/-
2 Medical Expenditure Rs.23,893/-
3. Pain and Suffering Rs.1,00,000/-
Total Rs.4,25,893/-
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19. The Insurance Company is liable to pay the aforesaid
compensation amount within one month of the order along with interest
@ 6% from the date of filing of the claim application till its realization.
20. It goes without saying that the amount already paid shall be
deducted /adjusted from the aforesaid compensation amount.
21. The instant Misc. Appeal is partly allowed.
Pending I.A., If any, stands disposed of.
22. Statutory amount, if any, deposited at the time of preferring the
instant Misc. Appeal shall be remitted to the learned Tribunal so as to
disburse /adjust to the compensation amount to be given to the
claimant.
(Gautam Kumar Choudhary, J.)
Sandeep/
