Jharkhand High Court

Branch Manager vs Manjuara Bibi @ Rubi Bibi @ Manuwara Bibi on 15 April, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                                                  2025:JHHC:11360




IN THE HIGH COURT OF JHARKHAND AT RANCHI
            M.A. No. 06 of 2015

Branch Manager, National Insurance Company Ltd., Hero Honda
Vertical 101106 BMC House NI, Connaught Place, New Delhi-
110001 cum Manager, National Insurance Company Ltd., Sahibganj
Branch, P.O. and P.S. Sahibganj, District Sahibganj, Jharkhand,
represented through its Dy. Manager, Jharkhand Legal Cell, National
Insurance Company Ltd., P.O. Ranchi, P.S., Kotwali, District Ranchi,
Jharkhand.
                                            ....    ....    Appellant
                                Versus
1. Manjuara Bibi @ Rubi Bibi @ Manuwara Bibi, W/o Late Amir
    Hussain
2. Rupa Khatoon
3. Shilpa Khatoon
4. Chompa Khatoon
5. Rupa Khatoon
6. Ashik Hussain
7. Bulbuli Khatoon
8. Julekha Khatoon
    Claimant Nos.2 to 8 are minor children of the deceased and
    represented though their mother, claimant No. 1 (Manjuara Bibi),
    All are resident of village Manikpur, P.O. & P.S. Maheshpur,
    District-Pakur.
9. Bishnu Das, S/o Bikel Gupta, R/o village Indranagar, P.O. and P.S.
    and District-Dumka, owner of the vehicle No. JH-04E-0430
10. Ajijur Rahman, S/o Rashid SK @ Rahid SK, village Karipahari,
    P.O. and P.S. Pakuria, District Pakur cum village Moglabandh,
    P.O. and P.S. Pakuria, District Pakur cum village Manikpur, P.O.
    and P.S. Maheshpur, District-Pakur (Jharkhand) owner of
    vehicle No.JH-04A-1690              ...        ....      Respondents
                         With
                    M.A. No. 07 of 2015

 Branch Manager, National Insurance Company Ltd., Hero Honda
 Vertical 101106 BMC House NI, Connaught Place, New Delhi-
 110001 cum Manager, National Insurance Company Ltd., Sahibganj
 Branch, P.O. and P.S. Sahibganj, District Sahibganj, Jharkhand,
 represented through its Dy. Manager, Jharkhand Legal Cell, National
 Insurance Company Ltd., P.O. Ranchi, P.S., Kotwali, District Ranchi,
 Jharkhand.
                                           ....  ....    Appellant
                               Versus
1. Soma Rakshit, W/o Late Bikash Kumar Rakshit, R/o village
   Hospital Road, Maikrapara, Durgasthan Road, Dumka cum R/o
   village Napitapara, Dumka cum R/o village Banpara, P.O. and P.S.
   Dumka, District-Dumka, Jharkhand.
                                                   2025:JHHC:11360




2. Bishnu Das, S/o Bikel Gupta, R/o village Indranagar, P.O. & P.S.
   and District-Dumka, owner of the vehicle No. Jh-04E-0430
3. Ajijur Rahman, S/o Rashid SK @ Rahid SK, village Karipahari,
   P.O. and P.S. Pakuria, District Pakur cum village Moglabandh, P.O.
   and P.S. Pakuria, District Pakur cum village Manikpur, P.O. and P.S.
   Maheshpur, District-Pakur (Jharkhand) owner of JH-04A-1690
4. Amit Kumar Rakshit, S/o Late Bikash Kumar Rakshit, R/o village
   Hospital Road, Maikrapara, Durgasthan Road, Dumka cum R/o
   village Napitapara, Dumka cum R/o village Banpara, P.O. and P.S.
   Dumka, District-Dumka, Jharkhand
                                          ...     ....     Respondents
                           With
                    M.A. No. 61 of 2015

  Soma Rakshit, W/o Late Bikash Kumar Rakshit, R/o village Hospital
  Road, Maikrapara, Durgasthan Road, Dumka cum R/o village
  Napitapara, Dumka cum R/o village Banpara, P.O. and P.S. Dumka,
  District-Dumka, Jharkhand.
                                              ....    ....   Appellant
                                  Versus
 1. Bishnu Das, S/o Bikel Gupta, R/o village Indranagar, P.O. & P.S.
     and District-Dumka, owner of the vehicle No. Jh-04E-0430
 2. Branch Manager, National Insurance Company Limited Hero
     Honda Vertical 101106BMC House NI, Connaught Place, New
     Delhi-110001 Cum Manager, National Insurance Company Ltd.
     Sahibganj Branch, P.O., P.S. & Dist.-Sahibganj, Jharkhand
 3. Ajijur Rahman, S/o Rashid SK @ Rahid SK, village Karipahari,
    P.O.- Pakur, P.S. Pakuria, District Pakur cum village Moglabandh,
    P.O. and P.S. Pakur, District Pakur cum village Manikpur, P.O. and
    P.S. Maheshpur, District-Pakur (Jharkhand) owner of JH-04A-1690
 4. Amit Kumar Rakshit, S/o Late Bikash Kumar Rakshit, R/o village
    Hospital Road, Maikrapara, Durgasthan Road, Dumka cum R/o
    village Napitapara, Dumka cum R/o village Banpara, P.O. and P.S.
    Dumka, District-Dumka, Jharkhand
                                           ...       ....      Respondents
                          -----

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Ganesh C. Jha, Advocate (in M.A. 6 & 7/15) Mr. Ashish Verma, Advocate (in M.A. 61/15) For the Respondents : Mr. Arvind Kr. Lall, Advocate Md. Yasir Arafat, Advocate (in M.A.6/15) Mr. Ashish Verma, Advocate (in M.A.7/15) Mr. Ganesh C. Jha, Advocate (in M.A.61/15)

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C.A.V. ON 08.04.2025 PRONOUNCED ON 15 / 04 / 2025

1. M. A. No. 06 of 2015 and M. A. No. 07 of 2015 have been filed

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by the appellant-Insurance Company against the impugned judgment of award and compensation in MACT Case No. 83 of 2013 and MACT Case No. 78 of 2013 respectively, whereby and whereunder, compensation has been awarded under Section 166 of the Motor Vehicle Act for the death of Amir Hussain and Bikash Kumar Rakshit respectively and the liability has been fixed on the Insurance Company to pay the said amounts.

M. A. No. 61 of 2015 has been filed by the appellant for enhancement of compensation amount awarded by the Tribunal in MACT Case No. 78 of 2013.

Since all these appeals arise out of the same accident, therefore, they have been heard together and will be disposed of by common order.

2. As per the case of the claimants in M. A. No. 06 of 2015 and M. A. No. 07 of 2015, accident took place on 23.12.2012 at 13:40 hours when two motorcycles bearing Registration No. JH 04 A-1690 (wrongly typed as JH 04 A -1630 in the impugned judgment) and No. JH 04 E - 0430 met with head on collusion in which Amir Hussain and Bikash Kumar Rakshit had died.

3. The claimants in MACT Case No. 83 of 2013 are the legal representatives of deceased Amir Hussain whereas the claimants in MACT Case No. 78 of 2013 are the legal representatives of deceased Bikash Kumar Rakshit. MACT Case No. 78 of 2013 was filed impleading the owner of the motorcycle namely Ajijur Rahmam and MACT Case No. 83 of 2013 was filed impleading the owner of the motorcycle namely Bishnu Das.

4. On the basis of fardbeyan, FIR being Maheshpur P.S. Case No. 2007 of 2012 was lodged against both the drivers under Sections 279, 338 427 and 304A of IPC. After investigation, final form was submitted against both the drivers under the aforesaid sections.

5. It is argued by Mr. G.C. Jha, learned counsel appearing on behalf of the Insurance Company in M.A. No. 06 of 2015 arising out of

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M.A.C.T. Case No. 83 of 2013, whereby a compensation of Rs. 5,32,000/- has been imposed on the appellant-Insurance Company, that it is a case of head-on collision between two motorcycles bearing registration No. JH04A-1690 (Bazaz Boxer) being driven by deceased- Amir Hussain and another motorcycle bearing registration No. JH04E- 0430 driven by deceased-Bikash Kumar Rakshit. F.I.R was lodged against the driver of both the vehicles and in the police report both the drivers have been held responsible for causing accident. In this factual circumstance, it is argued that since the fault was equally on the driver of both the vehicles, therefore, the claim for compensation under Section 166 of the Motor Vehicle Act was not maintainable. Fundamental ingredient to bring a claim of compensation under Section 166 in contradistinction to Section 163A of the Motor Vehicle Act is that the accident should have resulted on account of fault of the other offending vehicle. Here since the deceased was also at fault, therefore, the claim was not maintainable under Section 166 of the Motor Vehicle Act.

6. It is further argued that contrary to evidence, learned Tribunal in its finding on Issue No. 4 has held the driver of offending vehicle bearing Registration No. JH04E-0430 to be responsible for the accident. With regard to quantum of compensation, it is argued that the consortium of Rs.1,00,000/- has been awarded which is impermissible in view of ratio laid down by Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi, reported in (2017) 16 SCC 680 and the amount which has already been awarded under Section 140 of M.V. Act was not deducted by awarding the final compensation amount. Further Rs. 6,00,000/- has already been deposited by the Insurance Company in compliance of the order passed on 17.08.2018.

7. In M.A. No. 07 of 2015 arising out of M.A.C.T. Case No. 78 of 2013, apart from the argument regarding non-maintainability of claim under Section 166 of M.V. Act, argument on the same line has been

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advanced by Mr. G.C. Jha, learned counsel appearing on behalf of Insurance Company. It is further argued that learned Tribunal has held on Issue No. 4 that Bikash Kumar Rakshit died while he was riding vehicle bearing Registration No. JH04E-0430 and the accident occurred due to "mechanical default".

8. It is argued by Mr. Arvind Kumar Lall, learned counsel for the claimants (respondent nos. 1 to 8 in M.A. No. 06 of 2015) that so far the question of maintainability under Section 166 of the M.V. Act is concerned, it comes under Chapter X of the M.V. Act, and the mandate of law is that the accident should have taken place by use of motor vehicle. Section is silent, and there is no provision as such, to cast onus on the claimants to prove that the offending vehicle was being driven rashly and negligently at the time of accident. In this view of matter, there was no error on the part of learned Tribunal to award compensation under Section 166 of the M.V. Act.

9. It is difficult to countenance the argument advanced on behalf of the appellant that negligence is not required to be proved in a claim case filed under Section 166 of the M.V. Act. To accept such a proposition of law, will obliterate the distinction between the cases filed for no fault liability under Section 163 A of the M.V. Act and that under Section 166 of the M.V. Act. The scheme of the M.V. Act postulates two distinct form of claims arising out of motor vehicle accidents. One that is on account of the fault on the part of the driver of the offending vehicles, and the other where such a plea is not taken. In the former case an action under Section 166 of the M.V. Act is maintainable, whereas in the later case, claim case under Section 163A of M.V. Act is maintainable. It has been held in National Insurance Co. Ltd. v. Ashalata Bhowmik, (2018) 9 SCC 801:

"7. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. It is an admitted position that the deceased was the owner- cum-driver of the vehicle in question. The accident had occurred

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due to the rash and negligent driving of the vehicle by the deceased. No other vehicle was involved in the accident. The deceased himself was responsible for the accident. The deceased being the owner of the offending vehicle was not a third party within the meaning of the Act. The deceased was the victim of his own action of rash and negligent driving. A claimant, in our view, cannot maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company to pay for the same."

10. With regard to contributory negligence, there is merit in the argument on behalf of the claimants, that neither FIR nor charge-sheet is a substantive piece of evidence and the finding that has been recorded by learned Tribunal is on the basis of the evidence given on oath and therefore, it will have an overriding effect. The witnesses have specifically deposed that the accident resulted due to rash and negligent driving by the driver of the motorcycle bearing Registration No. JH04E-0430 and, therefore, liability to pay compensation has been fixed on the insurer of this vehicle. Specific reference is made to the deposition of A.W.-2 (Imamul Sk.), who deposed in para 1 that the accident took place due to rash and negligent driving of motorcycle bearing Registration No. JH04E-0430. Therefore, plea of contributory negligence raised on behalf of the appellant Insurance Company is not sustainable and is accordingly rejected. Learned Tribunal appears to have made out a third case without any evidence that accident took place due to "mechanical default". Such a finding is perverse and against the weight of evidence.

11. It is argued by Mr. Ashish Verma, learned counsel on behalf of the appellant in M.A. No. 61/2015, which has been filed on behalf of the claimant for enhancement of compensation awarded in MACT Case No. 78/2013, and Mr. Arvind Kumar Lall, learned counsel on behalf of respondent nos. 1 to 8 in M.A. No. 06/2015, that no award of

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compensation has been made under the head of future prospect.

12. Main object of adjudication in a claim case is to award just and fair compensation to the dependents in case of death in motor accident and to the victim/claimant in permanent disability case. There is no impediment to enhance compensation by awarding just and fair compensation, in an appeal preferred by the Insurance Company, even if the claimants may not have moved the appellate court for enhancement of compensation.

13. In the present case there is merit in the plea for enhancement of compensation, in the award of compensation in both MACT Case No. 83 of 2013 and MACT Case No. 78 of 2013, as no compensation has been awarded under the head of "future prospect". The compensation awarded under the conventional heads and interest rate is not in line with the ratio laid down in Pranay Sethi (supra) case.

14. The final compensation to be paid to the claimants on adding loss of income under future prospect and with Rs 84000/- under conventional head will work out as under:

In MACT Case No. 78 of 2013, the learned Tribunal has taken the annual income of the deceased Rs.1,68,000/- and omitted the future prospect part in the awarded compensation. Further Rs.1,00,000/- was awarded under the conventional head which is against the ratio of Pranay Sethi (supra).

Now taking 50% as future prospect and Rs.84,000/- as conventional head and 1/3rd under the loss of personal deduction and by taking the multiplier of 16 the total amount comes to Rs. 27,72,000/- with interest @ 6% per annum from the date of filing of claim application till its realization.

In MACT Case No. 83 of 2013 the learned Tribunal has taken the annual income of the deceased Rs. 36,000/- and omitted the future prospect part in the awarded compensation. Further Rs.1,00,000/- was awarded under the conventional head which is against the ratio of Pranay Sethi (supra) case.

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Now taking 40% as future prospect and Rs.84,000/- as conventional head and 1/4th under the loss of personal deduction and by taking the multiplier of 15 (as learned Tribunal has taken the age of the deceased to be of 36 years), the total amount comes to Rs. 6,51,000/- with interest @ 6% per annum from the date of filing of claim application till its realization.

Insurance Company is directed to pay the aforesaid compensation amounts with interest @ 6% per annum from the date of filing of claim application till its realization to both the claimants within one month from the date of this order.

In the result, M.A. No. 06/2015 is dismissed with modification in award and M.A. No. 07/2015 stands dismissed. M.A. No. 61/2015 is allowed with enhancement of compensation as at above.

Statutory amount deposited at the time of filing of appeal by the Insurance Company is remitted to the Tribunal for disbursement to the claimants and shall be adjusted against the final compensation amounts.