Jharkhand High Court
Branch Manager vs Lilmuni Orain Wife Of Late Sarawjit ... on 18 February, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No.412 of 2016
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Branch Manager, Oriental Insurance Company Limited, Branch Office at
Hotel Novelty, Powerganj Chowek, P.O., P.S. & District Lohardaga
.... .... .... Appellant
Versus
1. Lilmuni Orain wife of Late Sarawjit Oraon
2. Taramuni Kumari daughter of Late Sarawjit Oraon
3. Rinki Kumari daughter of Late Sarawjit Oraon
4. Daso Devi wife of Late Prasad Oraon
Respondent Nos.2 and 3 are minor and represented by their mother as
natural guardian
All residing at Village & P.O. Merle, P.S. Kisko, District Lohardaga
5. Ram Sewak Sahu son of Late Bukha Sahu resident of Village & P.O. Merle,
P.S. Kisko, District Lohardaga .... .... .... Respondents
With
Misc. Appeal No.335 of 2016
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1. Lilmuni Orain wife of Late Sarawjit Oraon
2. Taramuni Kumari
3. Rinki Kumari
both minor daughters of Late Sarawjit Oraon
4. Daso Devi wife of Late Prasad Oraon
Claimant Nos.2 and 3 are minor and under the custody and guardianship
of claimant no.1
All residing at Village & P.O. Merle, P.S. Kisko, District Lohardaga
All residents of Village Merle, P.O. & P.S. Kisko, District Lohardaga
.... .... .... Appellant
Versus
1. Branch Manager, Oriental Insurance Company Limited, Branch Office at
Hotel Novelty, Powerganj Chowek, P.O., P.S. & District Lohardaga
2. Ram Sewak Sahu son of Late Bukha Sahu resident of Village & P.O.
Merle, P.S. Kisko, District Lohardaga
.... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. Alok Lal, Advocate
(In M.A. No.412 of 2016)
Mr. Suraj Deo Munda, Advocate
(In M.A. No.335 of 2016)
For the Respondents : Mr. Arvind Kumar Lall, Advocate
(In M.A. No.412 of 2016)
Mr. Alok Lal, Advocate
(In M.A. No.335 of 2016)
Mr. Suraj Deo Munda, Advocate
(In M.A. No.412 of 2016)
Order No.17 / Dated : 18.02.2025
As far as M. A. No. 335 of 2016 is concerned, it has been preferred
for enhancement of compensation amount.
It is argued that learned Tribunal awarded Rs.1,00,000/- lumpsum
under the conventional head as well as under the head of future prospect
which should have been separately awarded.
Learned counsel on behalf of Insurance Company and the owner of
vehicle have not disputed these factual assertions.
I find merit in the appeal for enhancement, as loss of earning under
the head of future prospect has not been separately computed.
Taking monthly income of Rs.3000/-, 1/4 deduction as personal
and living expense of the deceased, multiplier of 17 as the deceased was
aged 28 years at the time of accident and loss of income under future
prospect 40%, the final compensation amount will work as under: -
Annual Income = Rs.3000/- X 12 Rs.36,000/-
Future Prospect Rs.36,000/- Rs.14,400/-
X 40%
After adding annual income and Rs.36,000 + Rs.14,400 =Rs.50,400/-
future prospect
Deduction (1/4th as total nos. of Rs.50,400 X 1/4 =Rs.12,600/-
dependants are 3)
After deduction Rs.50,400 - Rs.12,600 = Rs.37,800/-
Multiplier of 17 taking the age of the Rs. 6,42,600/-
deceased to be 28 as per post-mortem
report
Conventional Head Rs.84,000/-
Total Compensation Rs. 6,42,600 +Rs.84,000 =Rs.7,26,600/-
M. A. No. 335 of 2016 is allowed. Interlocutory Application, if any,
is disposed of.
The Insurance Company is in appeal against the award of
compensation in which liability has been fixed on the Insurance Company
for paying compensation of Rs.5,59,000/- awarded under Section 166 of the
Motor Vehicle Act with interest of 6% per annum.
2. As per the case of the claimant, on 23.06.2009 the deceased- Sarawjit
Oraon was coming on a tractor bearing Registration No. JH 08A-4514 after
unloading stone chips when he met with an accident due to rash and
negligent driving by the driver, as a result the tractor overturned and fell in
the river.
3. Learned Tribunal recorded a finding that the accident took place
due to rash and negligent driving of the tractor by its driver, and further
held that at the time of accident, the deceased was not travelling as a
gratuitous passenger, as he was a labour, who was returning after unloading
the stone chips.
4. Judgment and award has been impugned on the ground that the
offending vehicle was under insurance cover of act-only policy in which the
liability is limited. In the F.I.R (Exhibit 1), it has come that there were several
persons travelling on the same tractor and, therefore, the learned Tribunal
was in error to hold that he was a labour and not a gratuitous passenger
travelling on a vehicle. The act-only policy does not cover the occupants in
any vehicle. Further, the deceased left behind four dependents for which the
applicable deduction on living and personal expenses shall be 1/3rd and not
1/4th as taken by the Tribunal. It is also argued that, since the tractor was
being used for commercial purpose, therefore, permit was also required
which was not produced by the owner before the Tribunal. Reliance is
placed in National Insurance Company Ltd. Vs. Balakrishnan and Anr. AIR
2013 SC (Civil) 436 wherein the policy was act-only policy and therefore, the
Insurance Company was held to be not liable to compensate for the death of
the occupant/pillion rider of the vehicle. Principle that in cases of "act-only
policy", the Insurance Company is liable to indemnify the owner of the
vehicle for the death or injury to the occupant of the vehicle, has been
reiterated in Jagtar Singh Vs. Sanjeev Kumar & Ors. (Civil Appeal No. 7546
of 2013 and 6943 of 2015).
5. It is submitted by learned counsel on behalf of the owner of the
vehicle (Respondent No.5) that it is factually incorrect to assert that the
policy was only Act policy which will be evident from Exhibit 5. The policy
specifically states that it was Miscellaneous Class D vehicles liability only
Policy which covered legal liability to employees-IMT-29 for which
premium of Rs.25/- was also paid. Further, A.W.1, A.W.2 and A.W.3 have
consistently stated that the deceased was returning after unloading the stone
chips. There has not been any cross-examination of A.W.2 and A.W.3 on this
point which will amount to admission of the statement made in
examination-in-chief. With regard to requirement of permit, it is submitted
that under the Jharkhand Motor Vehicle Rules, there is no requirement of
permits so far as tractors are concerned.
6. Having considered the submission advanced on behalf of both
sides, and perusal of the insurance policy (Exhibit 5), it cannot be said that it
was "act-only policy" as extra premium was paid to cover the risk to the
employees. Oral evidence that the deceased was returning after unloading
the stone chips has come up consistently, and has remained uncontroverted
in the cross-examination. F.I.R. is not a substantive piece of evidence, as such
it cannot be placed on a higher pedestal than the statement made before the
Tribunal on oath. Therefore, the Insurance Company cannot escape liability
on this count.
Under the circumstance, the Insurance Company is directed to
make payment of Rs.7,26,600/- with interest @ 6% from the date of filing of
the claim application, within a month of the order, which shall be disbursed
to the claimants by the Tribunal on terms fixed by it.
M. A. No. 412 of 2016 stands dismissed.
Statutory amount be remitted to the Tribunal for disbursement to
the claimants. Interlocutory Application, if any, is disposed of.
(Gautam Kumar Choudhary, J.)
Anit
