Cholamandalam M.S. General Insurance ... vs Puja Devi W/O Late Bablu Yadav
2025 Latest Caselaw 223 Jhar

Jharkhand High Court

Cholamandalam M.S. General Insurance ... vs Puja Devi W/O Late Bablu Yadav on 7 May, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                                                2025:JHHC:13813




       IN THE HIGH COURT OF JHARKHAND, RANCHI
                M.A. No. 390 of 2023
                                 ----

Cholamandalam M.S. General Insurance Co. Ltd., I.G. Complex, 3rd Floor, West Boring Canal Road, PO - Boring Road, PS - Boring Road, District - Patna, Bihar - 800001 represented through its Deputy Manager Prafull Choudhary s/o Prakash Chandra Choudhary, aged about 36 years resident of C/o Cholamandalam MS General Insurance Co. Ltd. Shri Krishna Mathura Complex, IInd Floor, Opp. Allahabad Bank, PO and PS

- Lalpur, 834001, Circular Road, Ranchi .... Appellant

-- Versus --

1. Puja Devi W/o Late Bablu Yadav

2. Laxmi Kumari D/o Late Bablu Yadav

3. Pritam Kumar Yadav S/o Late Bablu Yadav

4. Anju Kumari D/o Late Bablu Yadav

5. Kaleshwar Mahato S/o Late Chaturdhan Mahato

6. Partu Devi w/o Kaleshwar Mahato

Respondent Nos.2 to 4 are minors and are represented through natural guardian mother i.e. respondent No.1 All R/o Village - Karmoi, PO - Gokula, PS - Narayanpur, District

- Jamtara, Jharkhand at present R/o near Big Bazar, PO and PS

- Saraidhela, District - Dhanbad

7. Kamlesh Prasad s/o Kapildeo Prasad, R/o 93 Koyri Bandh, Sabji

Pati, PO and PS - Jharia, District - Dhanbad .... Respondents With

----

Cholamandalam M.S. General Insurance Co. Ltd., I.G. Complex, 3rd Floor, West Boring Canal Road, PO - Boring Road, PS - Boring Road, District - Patna, Bihar - 800001 represented through its Deputy Manager Prafull Choudhary s/o Prakash

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Chandra Choudhary, aged about 36 years resident of C/o Cholamandalam MS General Insurance Co. Ltd. Shri Krishna Mathura Complex, IInd Floor, Opp. Allahabad Bank, PO and PS

- Lalpur, 834001, Circular Road, Ranchi .... Appellant

-- Versus --

1. Mangal Ray S/o Late Prayag Ray

2. Tumo Devi W/o Mangal Rai Both R/o village - Karmoi, PO - Gokula, PS - Narayanpur, District - Jamtara, Jharkhand

3. Kamlesh Prasad s/o Kapildeo Prasad, R/o 93 Koyri Bandh, Sabji Pati, PO and PS - Jharia, District - Dhanbad .... Respondents

----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellant :- Mr. Ashutosh Anand, Advocate (M.A. No.390 of 2023) For Respondent Nos.1 to 6 :- Mr. Zaid Ahmed, Advocate For Respondent No.7 :- Mr. Shailesh Kr. Singh, Advocate (M.A. No.391 of 2023) For Respondent Nos.1 to 2 :- Mr. Zaid Ahmed, Advocate For Respondent No.3 :- Mr. Shailesh Kr. Singh, Advocate

----

12/07.05.2025 Both the appeals are arising out of the same accident and in

view of that both the appeals are heard together with consent of

the parties.

2. Heard Mr. Ashutosh Anand, learned counsel appearing for

the appellant in both the appeals and Mr. Shailesh Kr. Singh, learned

counsel appearing for the respondent No.7 and respondent No.3 in

M.A. No.390 of 2023 and M.A. No.391 of 2023 respectively and Mr.

Zaid Ahmed, learned counsel appearing for the claimants in both

the appeals.

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3. M.A. No.390 of 2023 has been filed challenging the award

dated 07.08.2023 passed by learned Principal District Judge-cum-

P.O. M.A.C.T., Dhanbad in Motor Accident Claims Case No.367 of

2016.

4. M.A. No.391 of 2023 has been filed challenging the award

dated 07.08.2023 passed by learned Principal District Judge-cum-

P.O. M.A.C.T., Dhanbad in Motor Accident Claims Case No.366 of

2016.

5. Mr. Ashutosh Anand, learned counsel appearing for the

appellant - Insurance Company submits that the learned Tribunal

has erred in giving the finding, so far rash and negligent driving on

behalf of the truck is concerned. He submits that the case has been

instituted and the final form has been submitted in which it has

been disclosed that the motorcyclists have dashed the truck which

was in parking condition and in view of that the finding of the

learned Tribunal is not correct. He submits that there are

contradictory deposition of the claimants/witnesses with regard to

the employment of the deceased as one has said that the deceased

was earning Rs.12,000/- by way of selling chat on the cart and

another has said that he was doing the work of mason. He submits

in view of that the quantum is also not correctly taken into

consideration by the learned Tribunal.

6. He further submits that so far second case is concerned in

that case the facts are similar and the only difference is that the

deceased of that case was the pillion rider of the said motorcycle

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and in view of that the award may kindly be set aside. He submits

that the right to recovery is already there in favour of the appellant.

He relied on the judgment of Hon'ble Supreme Court in the case of

Oriental Insurance Company Limited versus Premlata

Shukla and Others reported in (2007) 13 SCC 476. He also

relied in the case of Ranjeet & Anr. versus Abdul Kayam Neb &

Anr. arising out of SLP(C) No.10351/2019 and submits that

the charge-sheet has been filed and the driver was found negligent

and no further evidence is required.

7. Learned counsel appearing for the claimants draws the

attention of the Court and submits that the PW - 2 is the eye

witness and he has proved the accident and in view of that the rash

and negligent driving has been proved on behalf of the truck. He

further submits that even the proper care has not been taken in

parking of the said truck and that has been considered by the

learned Tribunal. He then submits that the learned Tribunal, so far

the income is concerned, has calculated the same on the basis of

the minimum wages prevalent at the time of the accident. He

further submits that however the wife has stated that her husband

was selling the chat on the cart. He relied on the evidence in the

case of National Insurance Company Ltd. versus

Chamundeswari & Ors. reported in 2021 0 Supreme (SC)

533, 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

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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 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, he submits that what have

been proved by way of evidence that is material and the first

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information report is not required to be given weightage in light of

the said judgment.

9. Mr. Shailesh Kumar Singh, learned counsel appearing for the

respondent Nos.7 and 3 in M.A. No.390 of 2023 and 391 of 2023

respectively submits that the vehicle in question was insured with

the insurance company.

10. In view of the above submission of learned counsel

appearing for the parties, the Court has gone through the materials

on record including the trial court record. It transpires from the

record that the claim case was instituted disclosing that on

01.11.2016 at about 5:30 P.M. stating that one Bablu Yadav and his

friend Jhantu Rai were coming from their native village by a

motorcycle and when they reached near Latani Harkatta More, PS -

Purvi Tundi, Dhanbad, all of a sudden a truck No. JH-10-AC-6165

being driven rashly and negligently by its driver dashed the

motorcycle resultantly both of them sustained severe injuries. They

were rushed to PMCH, Dhanbad where they were declared brought

dead. It was stated that the deceased was earning Rs.12,000/- per

month and the offending vehicle No.JH-10AC-6165 was insured with

defendant No.2, who is the insurance company vide policy

No.3379/00648530/000/04 from 30.11.2015 to 29.11.2016.

11. The learned Tribunal has framed eight issues to decide the

said case. Issue No.3 was with regard to the deceased died due to

rash and negligent driving of the vehicle being Registration No.JH-

10AC-6165 and while deciding the issue, the learned Tribunal has

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considered the evidence of PW-1, who is the wife of the deceased

and she has stated about the incident as depicted in the FIR. PW-2

- Md. Ainul Haque was said to be the eye witness and he has

supported the occurrence and involvement of the truck in the said

accident. Exhibit - 3 was the FIR and the learned Tribunal has

further considered charge-sheet and considering all these evidence

the learned Court has come to the conclusion that the accident took

place due to rash and negligent driving of the truck driver and the

learned Tribunal has further held that the charge-sheet is not

rescuing the insurance company due to the fact that the insurance

company did not plead so in its written statement nor give any

suggestion to PW-1 and PW-2 in this regard. The learned Court has

further found that even if the version of insurance company is

accepted, it was the duty of the truck driver to turn on the back

light, indicators or putting any obstacle behind the truck to make

the passerby understand about the condition of the vehicle and in

view of that the learned Court has decided that issue in favour of

the deceased. The Court finds that so far that finding is concerned

is not perverse in view of the judgment relied by the learned

counsel appearing for the claimant in the case of National

Insurance Company Ltd. versus Chamundeswari & Ors.

(supra).

12. So far the judgment relied by Mr. Ashutosh Anand, learned

counsel appearing for the appellant in the case of Ranjeet & Anr.

versus Abdul Kayam Neb & Anr. (supra) is concerned in the

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same paragraph on which the reliance has been placed it has been

further held that even if the witnesses are not examined that will

not be hurdle to prove the death of the deceased, however, so far

the present case is concerned the eye witness has proved the case

of the claimants and in view of that, the judgment is

distinguishable, so far the facts of the present case and Oriental

Insurance Company Limited versus Premlata Shukla and

Others (supra) Ranjeet & Anr. versus Abdul Kayam Neb &

Anr. (supra) are concerned.

13. So far the income of the deceased is concerned the learned

Tribunal has taken the minimum wages prevalent at the time of the

accident and has calculated the income of Rs.7,020/- and in view of

that the learned Tribunal has taken care of finding of income of the

deceased and in view of that the Court finds that there is no

illegality even on the point of income of the deceased is concerned.

14. In view of above facts, reasons and analysis both these

appeals are dismissed.

15. The statutory amount deposited by the insurance company

shall be transmitted back to the learned Tribunal which will be

utilized in satisfying the award in favour of the claimants.

16. It has been pointed out that a sum of Rs.7,00,000/- and

Rs.5,00,000/- in M.A. No.390 of 2023 and M.A. No.391 of 2023

respectively has been ordered to be released in favour of the

claimants.

17. In view of above, it is made clear that if the said amount

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has not been released the same will be released along with all the

awarded amount to the claimants within six weeks.

18. It is further made clear that if a sum of Rs.7,00,000/- and

Rs.5,00,000/- in M.A. No.390 of 2023 and M.A. No.391 of 2023

respectively have been released in favour of the claimants in that

situation the rest of the amount minus (Rs.7,00,000/- and

Rs.5,00,000/-) respectively shall be paid to the claimants within the

aforesaid period.

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

concerned forth with.

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

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