Smt. Sunayana Devi vs Smt. Saraswati Devi
2025 Latest Caselaw 2702 Jhar

Jharkhand High Court

Smt. Sunayana Devi vs Smt. Saraswati Devi on 18 February, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            M. A. No. 281 of 2016
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1. Smt. Sunayana Devi, W/o Late Shankar Lal Barnwal

2. Vikash Kumar, S/o Late Shankar Lal Barnwal

3. Binay Kumar @ Bipin Kumar Barnwal, S/o Late Shankar Lal Barnwal

4. Bipin Kumar @ Vipin Kumar, S/o Late Shankar Lal Barnwal

5. Rupa Kumari, D/o Late Shankar Lal Barnwal, All R/o of Village- Argaghat Road, Rajput Mohalla, P.O-Makatpur, P.S.-Giridih (Town), Dist.-Giridih, Jharkhand ... .... Appellants

Versus

1. Smt. Saraswati Devi, W/o Late Bajrangi Prasad Barnwal, R/o Village & P.O.-Isri Bazar, P.S.-Nimiaghat, Dist.-Giridih, Jharkhand

2. Satish Prasad Barnwal, S/o Bajrangi Prasad Barnwal, R/o Village & P.O.-Isri Bazar, P.S.-Nimiaghat, Dist.-Giridih

3. The New India Assurance Co. Ltd. through Branch Manager, Shanti Bhawan Road, Makatpur, Post and P.S.-Giridih (Town) Giridih (Jharkhand) ... .... Respondents With

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The New India Assurance Co. Ltd. through Branch Manager, Shanti Bhawan Road, PO & PS-Makatpur, District-Giridih (Jharkhand) ... .... Appellant Versus

1. Sunayana Devi, W/o Late Shankar Lal Barnwal

2. Vikash Kumar, S/o Late Shankar Lal Barnwal

3. Binay Kumar S/o Late Shankar Lal Barnwal

4. Bipin Kumar S/o Late Shankar Lal Barnwal

5. Rupa Kumari, D/o Late Shankar Lal Barnwal, All R/o of Village- Argaghat Road, Rajput Mohalla, P.O-Makatpur, P.S.-Giridih (Town), Dist.-Giridih, Jharkhand

6. Saraswati Devi, W/o Late Barjangi Prasad Barnwal, R/o Village & P.O-Isri Bazar, P.S. Nimiaghat, Dist.-Giridih, Jharkhand

7. Satish Prasad Barnwal, S/o Late Bajrangi Prasad Barnwal, R/o Village & P.O-Isri Bazar, P.S. Nimiaghat, Dist.-Giridih, Jharkhand ... .... Respondents

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Arvind Kr. Lall, Advocate (in M.A. 281/16) Mr. Alok Lal, Advocate (in M.A. 341/16) For the Respondent : Mr. Alok Lal, Advocate (in M.A. 281/16) Mr. Arvind Kr. Lall, Advocate (in M.A. 341/16)

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Oral Order 24 / Dated : 18.02.2025

1. The Insurance Company is in appeal against the judgment and award of compensation under Section 166 of the M.V Act,1988, by which the liability has been fixed on it in Title (M.V) Suit No. 23 of 2006 for the death of deceased-Shankar Lal Barnwal in a motor vehicle accident.

2. As per the case of the claimant, the deceased on 08.10.2005 was travelling on a Commander Jeep bearing Registration No. JH10A- 4574 as a passenger, when due to rash and negligent driving of its driver, he fell down and sustained fatal injuries and died during course of treatment. The claimants are widow, one daughter and three sons of the deceased.

3. The claim case was filed impleading the owner, driver and insurer of the vehicle.

4. The Tribunal awarded a compensation recording a finding that the death was due to rash and negligent driving of the driver of Commander Jeep bearing Registration No. JH10A-4574 which met with an accident, while he was travelling as passenger in the said vehicle. The vehicle was under the insurance cover of the appellant company and there was no breach of terms of insurance policy.

5. The judgment and award have been assailed on the ground that the FIR (Ext. 16) was lodged immediately after the accident, wherein it has been stated that the deceased-Shankar Lal Barnwal was travelling on the roof top of the said Commander Jeep. Author of the fardbeyan was the deceased himself. Further, the postmortem examination report has not been adduced into evidence to prove that the deceased died in the said motor vehicle accident. The only documentary evidence which has been produced is Ext. 1, which is original dead-body carrying certificate of the deceased, which does not disclose the cause of death or the injuries sustained by him. It is

submitted that since in view of the ratio laid down by the Hon'ble Apex Court in Branch Manager of National Insurance Company Ltd. Vs. Giriraj Prasad Agrawal & Ors. (Civil Appeal No. 2421 of 2008) wherein the compensation was not awarded in a case where the deceased was travelling at the roof top.

6. It is argued on behalf of the claimants that the doctor, who examined the deceased, has been examined as PW 6 and he has proved the injury report. There has not been any cross-examination regarding the injuries suffered by the deceased in the motor vehicle accident.

7. At the outset, it may be noted that post mortem examination report is not a sine qua non for the proof of accidental death of a person in a motor vehicle accident. Facts in a motor vehicle case are proved by preponderance of probability and a strict proof is not required.

8. In the present case after the accident on the very same day FIR was lodged being Pirtand P.S Case No. 35/2005 under Sections 279, 337, 338 and 304(A) of the IPC against the driver of Jeep No.-JH-10 A 4571 regarding the death of one and grievous injury to others. Police on investigation found the case true and submitted charge-sheet against the driver of the offending vehicle. Doctor who examined the deceased in an injured condition has been examined on behalf of the claimants and he has proved the injury report (Ext-17 and 18). Ext-2 is the death certificate issued by the Ranchi Nagar Nigam. No contrary evidence has been led on behalf of the appellant in support of the contention that death was not accidental. AW-1 and AW-2 have deposed that the deceased died in the motor vehicle accident when he was travelling in the offending vehicle. Thus, this Court is of the view that there is no infirmity in the finding of the Tribunal that death was caused due to motor vehicle accident.

9. Plea that the deceased was travelling on the roof top of the vehicle is being raised for the first time before this Court. Learned

Tribunal has specifically noted in para-9 of the Judgment that accident was caused due to rash negligent driving by the driver of the offending vehicle on the basis of the charge sheet and the evidence of Minjit Pandey. AW-3 and AW-4 have deposed that when the accident took place they were also travelling in it, and have attributed the cause of accident to be rash and negligent driving by the driver of the offending vehicle. There is no other contrary evidence. Law is settled that FIR is not a substantive piece of evidence and it cannot override oral evidence given on oath before the Tribunal. By preponderance of probability on the basis of oral evidence account, it can be inferred that deceased died in the motor vehicle accident, while he was travelling in the offending vehicle. Under the circumstance I find that there is no legal evidence from which an inference can be drawn that the deceased died while he was travelling on the roof top of the vehicle.

10. Appeal filed on behalf of the Insurance Company, therefore, fails and is, accordingly, dismissed.

11. This misc. appeal has been filed on behalf of the claimants for enhancement of compensation on the ground that the actual income of the deceased was Rs.5000/- whereas learned Tribunal has taken Rs.4000/- as the income, under conventional only Rs. 10,000/- was allowed.

12. On the other hand, it is argued by learned counsel for the Insurance Company that the loss of earning under the head of future prospect, will be 25% as per the age of the deceased which was 44 at the time of accident, and not 30% as taken by the Tribunal.

13. Under conventional head, total compensation will be Rs.84,000/- and so far as the income of the deceased is concerned, I find no reason to interfere with the well-reasoned order of learned Tribunal.

14. I find merit in the argument made on behalf of the claimants for

enhancement of compensation under the following head:

    Monthly income                                       Rs.4000
     Annual Income                                       Rs.48,000
     Future Prospect 25% age 44 years                    Rs.12,000
    Annual Income + Future Prospect                      Rs.60,000
    Personal and living expense 1/4th as                  Rs. 15,000/-
    number of dependents of the deceased
    are five
    60,000 - 15,000 =                             Rs. 45,000/-
    Multiplier is 14 as the age of the            Rs.45,000X14 = 6,30,000/-
    deceased at the time of accident was 44
    years
    Conventional Head                                    Rs.84,000
                                     Total               Rs. 7,14,000/-

The Insurance company is liable to pay total compensation of Rs. 7,14,000/- with interest @ 6% from the date of claim application. Payment shall be made within one month from the date of the order before the learned Tribunal and the same shall be disbursed to the respective claimants on proper identification as per the terms of disbursement decided by the Tribunal.

Misc. Appeal 281 of 2016 is, accordingly, allowed. Pending I.A., if any stands disposed of.

The statutory amount, which was deposited before this Court at the time of filing of this appeal, shall be remitted to the Tribunal for disbursement to the claimants, which will be adjusted against the compensation amount.

(Gautam Kumar Choudhary, J.) AKT/Satendra