Jharkhand High Court
The Divisional Manager The New India ... vs Lil Mohan Munda And Ors on 2 August, 2017
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. no. 167 of 2013
The Divisional Manager, The New India Assurance Company Limited,
Ashoka Automobile Building, D.O.-1, Ranchi Main Road, Ranchi, P.O. Chutia,
P.S. Hindpiri, Town- Ranchi, District Ranchi ......Appellant
Versus
1. Lil Mohan Munda, S/o of Sri Kundan Munda, R/o village- Huanghatu, P.O.
Taimara, P.s. Namkum, District-Ranchi
2. Arshad Hussain, S/o Md. Siddique, R/o Karbala Tank Road, P.O. and P.S.
Lower Bazar, District-Ranchi .......... Respondents
With
M.A. no. 268 of 2013
1. Lil Mohan Munda, S/o of Sri Kundan Munda, R/o village- Huanghatu, P.O.
Taimara, P.s. Namkum, District-Ranchi .....Appellant
Versus
1. The Divisional Manager, The New India Assurance Company Limited,
Ashoka Automobile Building, D.O.-1, Main Road, P.O. GPO, P.S. Kotwali,
District Ranchi
2. Arshad Hussain, S/o Md. Siddique, R/o Karbala Tank Road, P.O. GPO, P.S.
Lower Bazar, District-Ranchi .......... Respondents
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellants : Mr. Ganesh C. Jha, Advocate (in M.A.
no.167/13)
Mr. Ashutosh Anand, Adv. (In M.A.
no.268/13)
For the Respondents/claimants : M/s. Ashutosh Anand & Mr. Nikhil Ranjan,
Advocates (in M.A. no.167/13)
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08/Dated:02.08.2017
1. Both miscellaneous appeals arise out of the common judgment/award dated
06.03.2013passed by Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi, in Compensation Case no.211 of 2005, whereby the compensation of Rs.1,56,150/- with interest @ 6% per annum payable from 26.02.2010 till the date of realization less the amount of Rs.25,000/- paid, under Section 140 of the M.V. Act, 1988 has been granted.
The appeal being M.A. no.167 of 2013 has been preferred by New India Assurance Company Limited challenging the liability fastened upon the Assurance Company to pay compensation amount and M.A. no.268 of 2013 has been preferred by the respondents/claimants for enhancement of the awarded compensation.
2. Learned counsel for the appellant- The New India Assurance Company Limited has argued that it is admitted case that the injured-Lil Mohan Munda was travelling on the roof of the Bus bearing Registration no. BR-15P-0151. That the Bus came in contact with a hanging electric wire and due to the electric shock Lil Mohan Munda suffered 50% permanent disability on the right portion of the body.
It is argued by the learned counsel that in the given facts, it is evident that there is violation of the terms and conditions of the Insurance Policy as the injured was travelling on the roof of the Bus. That he sustained injury resulting in partial -2- disablement on account of electric shock due to his own negligence. The owner of the Bus has committed breach of the terms and conditions of the policy by carrying passengers on the roof of the Bus, hence, the owner of the Bus is liable to pay the compensation and the Insurer should be exonerated from the liability to pay the compensation.
It is urged that compensation has been awarded by assessing the income of the injured at Rs.2,000/- per month but no document has been filed in support of the income of the injured.
On the above grounds, it is submitted that the impugned award be set aside and the appellant-The New India Assurance Company Limited be exonerated from the liability to pay compensation.
3. Mr. Ashutosh Anand, learned counsel for the respondent/claimant has submitted that a Full-Bench of this court in a decision rendered in the case of Giriraj Prasad Agrawal and Ors. Vs. Parwati Devi and Ors. and Kali Paharin and Ors. reported in 2005 (2) JCR 523 (Jhr) in similar facts and circumstances has held that the Insurance Company can only be exonerated of the liability to pay compensation when there is violation of terms and conditions as enumerated under Section 149(2) of the Motor Vehicle Act. In the aforesaid case the deceased was travelling as a passenger of the Bus atop the roof of the Bus and the Full Bench dismissed the plea of the Insurance Company that there is violation of terms and conditions of the policy and held that the Insurer was liable to pay the compensation.
It is submitted that the compensation has been awarded by assessing the income of the deceased at Rs.2,000/- per month whereas the witnesses have stated that the injured was a labourer and was earning Rs.3,000/- per month, hence, the Tribunal has committed an error by assessing the income of the injured at Rs.2,000/- per month instead of Rs.3,000/- per month. That the Tribunal has erred in giving a finding that the disability was only 25% whereas the medical certificate produced by the claimant/respondent shows that he sustained 50% permanent disability in the right portion of the body. That the Tribunal has committed an error in awarding a meager amount towards future earning, pain and suffering on account of permanent disability, trauma, as well as loss of enjoyment of life and towards future medical expenses.
4. Heard. In view of the decision rendered by the Full-Bench of this Court in the case of Giriraj Prasad Agrawal and Ors. (Supra), it is well settled that the Insurer can be exonerated of the liability to pay compensation only when there is violation of terms and conditions as enumerated under Section 149(2) of the Motor Vehicle Act. In terms of Section 147, the contractual obligation to compensate an -3- injured or deceased on account of motor accident lies on the insurer as section 147 mandates coverage of third party risk.
On perusal of judgment/award of the court below, it is evident that no material evidence has been adduced by the Insurer to make out a case that there was violation of the terms and conditions as enumerated under Section 149(2) of the M.V. Act, by the owner of the vehicle. The Tribunal has erred in assessing the income of the injured at Rs.2,000/- per month, hence, it will be just and proper to assess the income of the injured at Rs.3,000/- per month.
On-going through the impugned order it is explicit that the amount awarded towards pain and suffering, trauma and future medical expenses as well as loss of enjoyment of life is not adequate. Hence, it will be just, fair and reasonable to enhance the compensation amount of Rs.1,56,150/- to Rs.4,00,000/- and the appellant-The New India Assurance Company Limited shall pay the aforesaid amount less the amount of Rs.1,25,000/- paid in compliance of the order of this Court and under Section 140 of the Act.
The appellant- The New India Assurance Company Limited shall pay an interest of 7% per annum on the outstanding amount in terms of the order of the court below in the Lok Adalat scheduled to be held on 12.08.2017.
5. Registry shall return the statutory amount of Rs.25,000/- to the appellant/ The New India Assurance Co. Ltd.
6. Let a copy of this order be handed over to the both the counsels for needful.
7. With the aforesaid modification of the impugned judgment, M.A.no. 268 of 2013 is allowed and M.A. no. 167 of 2013 stands dismissed.
(Amitav K. Gupta, J.) Tarun/-