Jharkhand High Court

Bajaj Allianz General Insurance Co. ... vs Anita Devi on 5 March, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

       IN THE HIGH COURT OF JHARKHAND, RANCHI
                M.A. No. 296 of 2023
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Bajaj Allianz General Insurance Co. Ltd. represented through its Manager, GE Plaza, Airport Road, Yerwada PO and PS - Yarwada Pune Maharashtra 411006 Local Office 5th Floor, Parnami Heights, Circular Road, PS - Lalpur, PO and District - Ranchi, through its Legal Executive having its office at 5th floor, Parnami Heights, Circular Road, PS - Lalpur, PO and District -

 Ranchi                                         .... Appellant
                            --    Versus   --
1. Anita Devi, wife of Late Pawan Kisku

2. Prerna Kumari, daughter of Late Pawan Kisku

3. Sojal Kumari, daughter of Late Pawan Kisku

4. Arti Kumari, daughter of Late Pawan Kisku

5. Dukhu Manjhi, son of Late Bilam Manjhi

All residents of village Kunwar Singh Colony, PO and PS - Chas, District - Bokaro (Respondent Nos.2,3 and 4 are minors being represented through their mother being their natural guardian as their next friend

6. Rekha Devi wife of Shaileshwar Prasad Verma, resident of

Baraikala, Bermotand, Ormo, PO and PS - Kamsar, District - Bokaro (Owner)

7. Mahendra Kr. Mahto, son of Raghu Nandan Mahto, resident of

Baraikala, Bermotand, Ormo, PO and PS - Kamsar, District -

  Bokaro, (Driver)                              ....       Respondents


                               With

                                 ----
1. Anita Devi, wife of Late Pawan Kisku

2. Prerna Kumari, daughter of Late Pawan Kisku

3. Sojal Kumari, daughter of Late Pawan Kisku

4. Arti Kumari, daughter of Late Pawan Kisku

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5. Dukhu Manjhi, son of Late Bilam Manjhi

All residents of village Kunwar Singh Colony, PO and PS - Chas, District - Bokaro Applicant Nos.2 to 4 are minor daughters of the deceased, being represented through their mother applicant No.1, legal guardian ..... Appellants

-- Versus --

1. Bajaj Allianz General Insurance Co. Ltd. represented through Legal Manager, GE Plaza, Airport Road, Yerwada PO and PS - Yarwada Pune Maharashtra, PO and PS - Yarwada, 411006 Local Office, Pranami Heights 5th Floor, Parnami Heights, Circular Road, PS - Lalpur, PO and District - Ranchi-834001 (Insurer of offending Car No. JH-02T-8864, vide policy No. OG-10-2490- 1801-00001396 valid from 13.10.2018 to 12.10.2019.

2. Rekha Devi wife of Shaileshwar Prasad Verma, resident of Baraikala, Bermotand, Ormo, PO and PS - Kamsar, District - Bokaro (Owner)

3. Mahendra Kr. Mahto, son of Raghu Nandan Mahto, resident of Baraikala, Bermotand, Ormo, PO and PS - Kamsar, District -

        Bokaro, (Driver)                              ..... Respondents

                                          ----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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             For the Appellant            :-     Mr. Alok Lal, Advocate
             For Respondent No.1 to 5     :-     Mr. Nikhil Ranjan, Advocate

             For the Appellants           :-     Mr. Nikhil Ranjan, Advocate
             For Respondent No.1          :-     Mr. Alok Lal, Advocate
                                          ----
10/05.03.2025     Heard learned counsel appearing for the appellants and learned

        counsel appearing for the respondents.

2. M.A. No.296 of 2023 has been instituted by the Insurance

Company challenging the award dated 10.03.2023 passed by learned

--2-- M.A. No. 296 of 2023 with

District Judge-IV-cum-Motor Accident Claims Tribunal, Bokaro in Motor

Accident Claim Case No.63 of 2019.

3. M.A. No.408 of 2023 has been filed by the claimants for

enhancement of the awarded amount arising out of the said claim case

itself and in view of that both the appeals have been heard together with

consent of the parties.

4. Mr. Alok Lal, learned counsel appearing for the appellant in M.A.

No.296 of 2023 assailed the impugned award on the ground that the

accident took place on 11.01.2019 and the FIR was registered on

13.02.2019. He submits in view of late registration of the FIR the said

case appears to be suspicious. He further submits that the vehicle has

also been implanted and according to him the person who has lodged the

fardbeyan has not been examined. He submits the alcohol smell was also

found on the body of the deceased and in view of that the negligence on

behalf of the deceased is also there, as such the awarded amount is

required to be reduced. He further submits that in every cases in a

routine way the case of National Insurance Company Limited v.

Pranay Sethi reported in (2017) 16 SCC 680 cannot be applied. He

submits that the purpose of the motor vehicle act is that just

compensation should be awarded to the aggrieved person. He further

assailed the income calculation made by the learned Tribunal and

according to him the salary has been wrongly interpreted by the learned

Tribunal and in view of that he submits that the said may kindly be set

aside.

5. On the point of delay of lodging of FIR, Mr. Alok Lal, learned

counsel appearing for the appellants relied in the case of Anil & Ors.

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versus New India Assurance Co. Ltd. & Ors. reported in (2018) 0

Supreme (SC) 43 and on this ground, he submits that this appeal may

kindly be allowed.

6. On the other hand, Mr. Nikhil Ranjan, learned counsel appearing

for the opposite party Nos.1 to 5 submits that the person who was also

accompanying the deceased was examined as PW-2, who has stated in

paragraph No.3 that he was also sitting on the motorcycle and he was

the pillion rider and has stated that accident has took place in view of

that the accident is proved. He submits that the reason of delay in

lodging of the FIR has been stated in the fardbeyan itself disclosing that

the family was destabilized due to such accident and in view of that such

delay has occurred. He further submits that the learned trial court has

rightly calculated the income and there is no illegality in the same and he

relied in the case of Pranay Shetty (supra). He further submits that the

learned trial court has however taken the salary as net salary in place of

gross salary which has been done illegally and on that ground the said

award is required to be interfered with and to buttress this argument he

relied in the case of Yerramma and Ors. versus G. Krishnamurthy &

Anr. reported in (2015) 2 Supreme 375, wherein at paragraph

No.13, it has been held as under :-

13. The Tribunal on examining the salary slip of the deceased for the month of April, 2011 determined the salary of the deceased at Rs.21,168/- per month after deducting towards P.T. and other statutory deductions. Therefore, the Tribunal arrived at Rs.21,168/- per month as the salary of the deceased. The High Court in its impugned judgment and order affirmed the same. We are of the view, that on the facts and circumstances of this case, the net salary of the deceased taken by the Tribunal and the High Court for determination of loss of dependency is erroneous as it is not in accordance with

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the principles laid down by this Court in this regard. Therefore the same is liable to be set aside as it has to be properly determined by taking gross income of the deceased. It is clear that the gross income of the deceased at the time of his death as per his salary slip was Rs.26,000/- per month. Therefore, we are of the view that a just and reasonable compensation under the head of loss of dependency has not been determined by the courts below. Thus, the impugned judgment and order of the High Court is vitiated both on account of erroneous finding and error in law. The gross salary drawn by the deceased at the time of his death was Rs.26,000/- per month. The High Court and the Tribunal have taken the net salary at Rs.21,168/- per month, thereby the Courts below have erred in making deductions from the gross salary of the deceased towards P.T. of Rs.200/- and other statutory deductions and therefore, arriving at Rs.21,168/- per month as the net salary of the deceased is erroneous in law.

Therefore, we are of the view that both the Tribunal and the High Court have erred in not following the rules laid down by this Court in Indira Srivastava's (supra) in not taking gross income of the deceased to determine the loss of dependency.

7. On the point of proving of case by way of examination of eye

witness, he relied in the case of National Insurance Company Ltd.

versus Chamundeswari & Ors. reported in (2021) 18 SCC 596,

wherein at paragraph No.8, it has been held as under :-

8. It is clear from the evidence on record of PW-1 as well as PW-3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 & PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3, who has given statement before the police, was examined as eye-witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has

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to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellant's counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others1, this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited2, this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case.

8. Relying on the above judgment i.e. Yerramma and Ors.

versus G. Krishnamurthy & Anr. (supra), he submits that the said

award may kindly be modified to take into account the gross salary which

comes to Rs.65,708/-. On this ground, he submits that there is no

illegality in the award, however, the amount is required to be modified on

the head of salary and future prospect in the light of the Pranay Shetty

judgment which should be 50% in place of 40% as the deceased was

aged about 29 years at the time of accident.

9. In view of the above submission of learned counsel appearing

for the parties, the Court has gone through the award and the trial court

record. The compensation case was filed stating that on 11.01.2019 at

about 2:00 PM, Pawan Kisku (now deceased) was on his bike with his

friend Rupesh Karmali, bearing No. JH-24B-1012, in the meantime near

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Pochra (Barkakana) the driver of vehicle No. JH-02T-8864 dashed on his

bike from back side due to which both the riders sustain grievous injury

and were sent at Central Hospital, Naisarai. But, during the treatment

Pawan Kisku died and his friend was under treatment at Ghato Tata

Hospital and for that the First Information Report was lodged on

13.02.2019 being Patratu P.S. Case No.56 of 2019 under Sections 279,

304(A), 337 and 338 of Indian Penal Code against the driver of the

vehicle No. JH-02T-8864 and after completion of investigation the

charge-sheet was submitted on 29.06.2019.

10. In the fardbeyan lodged by Mahabir Kisku, who is the brother of

the deceased, it is stated that delay has occurred as the mental condition

of entire family was jeopardized due to said accident pursuant to that the

FIR was registered which was investigated and final form has been

submitted against the vehicle in question. The name of the vehicle is also

disclosed in the FIR itself and postmortem report further proves the

accident and PW-2 who was the pillion rider on the said motorcycle was

also sustained the injury who has proved that accident has took place on

11.01.2019. Thus, by way of eye witness the accident has been proved

and further if the said vehicle was not involved in the said accident that

has not been challenged by the insurance company in any appropriate

proceeding in view of that the ground of delay in lodging of the FIR is not

available to the insurance company and the learned Court has passed the

said award looking into the oral and documentary evidence.

11. The genuine claim cannot be rejected on purely technical

grounds in a mechanical manner since it will result in loss of confidence

of policy holders in the insurance policy. In the present case cogent

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reason has been disclosed in the fardbeyan itself of lodging the FIR with

certain delay as the health condition of entire family was not in good

condition due to such accident.

12. So far the argument of Alok Lal, learned counsel appearing for

the appellants with regard to just compensation arising out of motor

vehicle accident is concerned that depends upon the facts and

circumstances of each case and each case has to be considered on the

facts.

13. It is well settled that if a judgment is delivered the said

judgment is applicable with retrospective effect, unless by the said

judgment itself it is restricted prospectively, as such the Pranay Shetty

case is fully applicable in the facts and circumstances of the case and in

view of that the argument of learned counsel appearing for the

appellants is negated.

14. The learned Tribunal has calculated the compensation and has

assessed the age of the deceased as 29 years and that is also not denied

by the insurance company, however, in the future prospect, he has

assessed at 40% of income wherein in the Pranay Shetty judgment at

paragraph No.59.4 it should be 50% considering the age which is as

under :-

59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

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59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

15. In view of that the calculation was required to be made on the

future prospect 50% of income.

16. The salary slip was brought on the record which was exhibited

and the salary was said to be Rs.65,708/- and the learned Court has

calculated it on the basis of net salary in place of gross salary.

17. In view of the judgment of Yerramma and Ors. versus G.

Krishnamurthy & Anr. (supra) the calculation is required to be made

on the gross salary not on net salary and only the income tax is required

to be deducted and in view of that, that part will be re-calculated by the

Tribunal taking into account the gross salary and deducting the income

tax.

18. So far judgment relied by Mr. Alok Lal in the case of Anil & Ors.

versus New India Assurance Co. Ltd. & Ors. (supra) is concerned

in that case no postmortem was conducted, no medical reports were

available and in that fact, the Supreme Court has decided that case. So

far facts of the present case is concerned, the postmortem is there,

charge-sheet has been submitted and the witnesses have supported the

case in view of that, that judgment is not helping the insurance company.

19. In view of the above, the appeal challenging the award in M.A.

No.296 of 2023 is hereby dismissed, so far M.A. No.408 of 2023 filed by

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the claimants is allowed to the effect that 50% future prospect will be

added in place of 40% and salary will be re-calculated taking gross salary

and deducting income tax only, the said appeal is partly allowed in above

terms and disposed of.

20. These appeals are disposed of.

21. The statutory amount deposited by the insurance company will

be remitted back to the learned Tribunal which will be utilized in

satisfying the said award. The said award if not implemented as yet, will

be satisfied within six weeks from the date of receipt/production of the

copy of this judgment.

22. Let the trial court record be sent back to the learned Court forth

with.



                                     (Sanjay Kumar Dwivedi, J.)
Sangam/
  A.F.R.




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