Jharkhand High Court
Urvashi Kumari Choudhary vs The General Manager Iffco Tokiyo on 9 October, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 436 of 2018
1. Urvashi Kumari Choudhary
2. Nilam Mandal ........ Claimants
Versus
1. The General Manager IFFCO Tokiyo, General Insurance Company Limited 4 th and
Fifth Floor IFFCO Tower, Plot No. 3, Sector 29, P.O. P.S, and District-Guragon,
Haryana, PIN No. 122001 Insurer of Maruti Car Alto K 10 JH 15F 5723.
2. Moti Lal Mandal, son of LKate K.C. Mandal,
With
M.A. No. 451 of 2018
The General Manager IFFCO Tokiyo, General Insurance Company Limited 4 th and 5th
Floor IFFCO Tower, Plot No. 3, Sector 29, P.O. P.S, and District-Guragon, Haryana,
through its Vice President-Mr. Saikat Sarkar
........ Opposite Party No.2/Appellant
Versus
1. Rita Choudhary
2. Motilal Mandal
3. Pravin Kumar Choudhary
........... Opposite Parties/Respondents
With M.A. No. 452 of 2018 The General Manager IFFCO Tokiyo, General Insurance Company Limited 4 th and 5th Floor IFFCO Tower, Plot No. 3, Sector 29, P.O. P.S, and District-Guragon, Haryana, through its Vice President-Mr. Saikat Sarkar ........ Opposite Party No.2/Appellant Versus
1. Urvashi Kumari Choudhary
2. Nilam Mandal ........... Opposite Parties/Respondents CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Claimants : Mrs. Ritu Kumar, Advocate :Mr. Lalit Yadav, Advocate For the Insurance Company : Mr. Ashutosh Anand, Advocate 12/Dated: 09/10/2023 In all these appeals common question of law and judgments are under challenge accordingly, all these appeals are being heard together with the consent of the parties.
2. Heard Mrs. Ritu Kumar, learned counsel assisted by Mr. Lalit Yadav appearing for the claimants and Mr. Ashutosh Anand, learned counsel for the Insurance Company.
3. M.A. No. 436 of 2018 has been filed by the claimants challenging the judgement and award dated 24.03.2018 passed by the learned District 2 Judge-IV, Deoghar-cum-M.A.C.T. (Tribunal), Deoghar in M.V. Claim Case No. 12/2014 for enhancement of the awarded amount.
4. M.A. No. 451 of 2018 has been filed by the Insurance Company namely, IFFCO Tokiyo, General Insurance Company Limited being aggrieved and dissatisfied with the award dated 27.01.2018 passed by the learned District Judge-IV,-cum-Motor Vehicles Accident Claims Tribunal, Deoghar in Motor Accident Claim Case No. 13/14.
5. M.A. No. 452 of 2018 has been filed by the said Insurance Company being aggrieved and dissatisfied with the award dated 24.03.2018 passed by the learned District Judge-IV-cum-Motor Vehicles Accident Claims Tribunal, Deoghar in Motor Accident Claim Case No. 12/14
6. Mr. Ashutosh, Anand, learned counsel for the Insurance Company submits that awards dated 27.01.2018 passed in Motor Accident Claim Case No. 13/2014 and 24.03.2018 passed in Motor Accident Claim Case No. 12/14 in both the appeals have been passed pursuant to same accident. He submits that the Insurance Company has preferred two M.As however ground of challenge in both the awards are similar.
7. The Claimants have filed the Claim Case alleging that deceased- Raviraj Mandal aged about 28 years in the accident he has left for his heavenly abode and the claim has been made under section 166 of the Motor Vehicle Act, 1988. The said case was filed by the mother of deceased namely Ravi Raj Mandal and widow of the deceased Raviraj Mandal namely, Urbarshi Kumari Choudhary and Neelam Mandal. In the said claim it has been alleged that on 14.10.2013 about 3.45 A.M. the deceased Raviraj Mandal and brother- in-law Prashant Kumar Choudhary were travelling by his Alto K-10 which was numbered as 10 JH 15 F 5723 and the purpose was to catch the train from Jasidih Station however they have not been able to return back. On 15.10.2013 information was received by them that dead body has been found near the Ajay 3 river. On reaching there they found that dead body is of the deceased Prashant Kumar Choudhary and 16.10.2013 it was informed that dead body is there near Bengi Bishunpur bridge of Ajay river. On reaching it was found that the said dead body was of Raviraj Mandal and the said car was found in a well which was pulled over by the police. They claimed that due to all of a sudden increase of water near diversion of the Darhwa river the said car was drown away along with two persons. In this background U.D. Case No. 6/2013 dated 16.10.2013 was registered in which final form has been submitted stating therein that deceased Raviraj Mandal and his brother-in-law Prashant Kumar Choudhary have left for their heavenly as they have been drown away in the river while they were crossing the bridge.
8. Learned Tribunal framed six issues for deciding the claim by award dated 24.03.2018 in Motor Accident Claim Case No. 12/2014 and directed to pay a sum of Rs. 35,06,860/- to the claimants of that case on account of death of Raviraj Mandal since Rs. 50,000/- has already been paid under section 140 of M.V. Act a sum of Rs. 34,56,860/- was directed to be paid. By award dated 27.01.2018 in Motor Accident Claim Case No. 13/2014 after deducting an amount of Rs. 50,000/- and a sum of Rs. 12,06,500/- was directed to be paid to the claimants due to death of deceased-Prashant Kumar Choudhary.
9. Mr. Ashutosh Anand, learned counsel for the Insurance Company assailed the awards passed by the learned tribunal in both the cases on the ground that owner of the said vehicle was not driving the case and the said vehicle was driven by Prashant Kumar Choudhary who happens to be brother- in-law of Raviraj Mandal and Prashant Kumar Choudhary is relative and in view of that 3rd party case is not made out. To buttress his argument he relied in the case of "Manager, New India Assurance Co. Ltd. Vs. Vinayagamoorthy and Another 2020 SCC Online Madras 8525.
10. Relying on the said judgement he submits that there is no 4 coverage, no premium was paid for any 3rd party in view of that the claim petition was misconceived under section 166 of the said Act. Based on that judgment, he further advanced his argument by way of submitting that due to fault and negligence of the deceased persons the said accident took place. They have not taken care and without examining the water in question they tried to cross river in view of that also the case is not fit to maintain under 166 of the said Act and there should be 100% contributory negligence against the deceased. He also refers to judgment of the Hon'ble Supreme Court in the case of " Meena Jain and Others Vs. United India Insurance Co. Ltd and Others: 2017 SCC Online Rajasthan 4285. He further submits that even the calculation are not in accordance with judgment of the Hon'ble Supreme Court in the case of "National Insurance Co. Ltd. Vs. Pranay Sethi"
(2017) 16 SCC 680.
11. He further submits that personal deduction is required to be as 1/3rd and loss of consortium and love and affection, loss of estate, funeral expenses total of maximum can be 70,000/- whereas learned tribunals have awarded the amount to the tune of Rs. 1,02,500/-. He further submits that even the income of the deceased was not properly calculated and to buttress this argument, he refers to Income Tax Return of the deceased which was exhibited before the learned tribunals. On these grounds he submits that both the awards may kindly be reversed and the appeals filed by the Insurance Company may be allowed.
12. Per contra, Mrs. Ritu Kumar, learned counsel for the claimants in M.A. No. 436 of 2018 as well as in other two M.As on behalf of the claimants submits that the learned tribunal passed the award and considering the submissions as well as documents on record. She submits that once Income Tax Return is there that can be looked into and in view of the Income Tax Return the earning of the deceased namely, Raviraj Mandal was rightly 5 calculated. She submits that learned tribunal has rightly calculated the amount and the submissions of the wrong calculation on the basis of judgment of the Hon'ble Supreme Court in the case of Pranay Sethi(supra) of the Insurance is misconceived one. She submits that so far has been argued before this Court was not argued before the learned tribunal. No issue has been tried to be framed by the Insurance Company and for the first time these points have been argued which is not maintainable. She submits that there is no illegality in the award.
13. It is an admitted fact that two persons have drown away in the said car while they were crossing Ajay river. Thus, in view of U.D. Case as well as final form the death certificate which is on record the death due to drowning away of two persons is an admitted position. The question remains if such a situation is there and the car is insured, due to certain rise of water all of a sudden the car drowned away due to rise in the river the Insurance Company is liable to pay the insurance amount or not.
14. The emphasis has been made by the learned counsel for the appellant-Insurance Company that in such a situation Insurance Company is not liable. Insurance policy is on the record and only the first page of the Insurance Paper has been brought on record. The terms and conditions of the said Insurance Policy is not on record and Insurance Company has taken such plea, it was incumbent upon the Insurance Company to bring on record the complete policy which is lacking in the case in hand. The onus lies upon the Insurance Company to prove that said accident was not covered under the said Insurance Policy.
15. In view of that restricted meaning to term cannot be made. The flood means overflow of water over land. It can be classified into three categories (i) coastal floods; (ii) fluvial floods (river floods) and (iii) pluvial floods (surface floods). The coastal floods occur when water from a sea or an 6 ocean flows into nearby areas. They are caused by extreme tidal activity (high tides) or by storm surge or by simultaneous occurrence of both these phenomena. This aspect of the matter was considered by the Hon'ble Supreme Court in the case of "Oriental Insurance Company Limited Vs. J.K. Cement Works (2020) 19 SCC 794.
16. In view of not providing the entire policy paper by the Insurance Company and in view of that grounds taken by the Insurance Company of negligent is hereby negated.
17. Learned tribunal has come to the conclusion on the basis of statement of the witnesses as well as documents. The license is not in dispute. The person who was driving the car, the licence was proved before the learned tribunal. In such cases, the claimants have to establish their case on the touchstone of preponderance of probabilities. A holistic view of the evidence has to be taken into consideration by the Tribunal and strict proof of an accident caused by a particular vehicle in a particular manner need not be established by the claimants. The claimants have to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be applied while considering the petition seeking compensation on account of death or injury in a road traffic accident. To the same effect is the observation made by the Hon'ble Supreme Court in the case of "Dulcina Fernandes Vs. Joaquim Xavier Cruz, (2013) 10 SCC 646 which was further referred in the case of Bimla Devi Vs. Himancal Road Corporation (2009) 13 SC 530
18. The person who was driving the vehicle was having the licence and once he was driving the borrowed vehicle that was insured in such instance he would step into the shoes of the owner of a vehicle.
19. Further even if a person who was relative of one of the deceased was travelling in the car only on that ground the compensation cannot be 7 denied as he will come into the category of gratuitous passenger. Now, it needs to be examine the liability, if any, of an Insurance Company towards a gratuitous passenger. In New India Assurance Company vs. Satpal Singh and Others reported in (2000) 1 SCC 237 the Supreme Court was considering the case of a 10 year old girl who met with her death in a truck accident. Her father, brother and sister sought compensation for her death under the M. V. Act, 1988. The Learned Motor Accidents Claims Tribunal passed an Award for a sum of Rs.25,000/- (Rupees twenty five thousand) only, to the Claimants. The owner of the truck was found liable to pay the compensation amount. The Insurance Company had been directed to pay the compensation as the vehicle was then covered by an Insurance Policy issued by that Company. The Insurance Company appealed against the Judgment and put forth the contention that the deceased was a gratuitous passenger in the truck and hence, no liability could be fastened on the insurer. The Division Bench of the High Court dismissed the Appeal filed by the Insurance Company which was then before the Hon'ble Supreme Court. After considering the matter, the Hon'ble Supreme Court reasoned that the Appellant had banked on the decision in Mallawwa vs. Oriental Insurance Company Limited to resist the liability, on the premise that the victim of the accident was a gratuitous passenger in the vehicle covered by the Insurance Policy. The Supreme Court opined that the decision was rendered under Section 95 of the Motor Vehicles Act, 1939. That, as per the proviso to the said Section when read with Clause (ii) it is clear that the Policy of Insurance shall not be required to cover liability in respect of the death of or bodily injury to persons who were gratuitous passengers of that vehicle. The provision of Section 95 of the M. V. Act, 1939, was compared to Section 147 of the M. V. Act, 1988. It was concluded as follows;
"The result is that under the new Act an insurance policy covering third-party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-à-vis gratuitous passengers 8 are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force." [emphasis supplied) .
20. In view of above the arguments of the learned counsel for the appellant is negated by this Court. So far the calculation is concerned, there is no doubt the case of Pranay Sethi(supra) still holds the field.
21. In view of above facts and finding that deceased died in accident due to flood and once Income Tax Return is brought on record it is statutory document reliance can be placed on that and considering that aspect of the matter the tribunal has rightly relied upon the Income Tax Return filed by one of the deceased. Reference may be made to the case of "Anjali and Others Vs. Lokendra Rathod and Ohters" 2022 SCC Online SC 1683.
22. Income Tax Return was again subject matter before the Hon'ble Supreme Court in the case of "Rajwati @ Rajo & Ors. Vs. United India Insurance Company Ltd. and Others" JT 2022 (120 SC 211.
23. In view of Income Tax Return of the deceased which was exhibited before the learned tribunal, there is no error on the part of the tribunal of calculation of salary of the deceased namely, Raviraj Mandal.
24. So far as dependence head are concerned, that has been considered in para 37 of Pranay Sethi (supra) which is quoted here-in- below:-
"37. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] , Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 :
(2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] and Munna Lal Jain [Munna Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347 : (2015) 3 SCC (Civ) 315 : (2015) 4 SCC (Cri) 195] . Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paras 30, 31 and 32, Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] lays down : (SCC p. 136) "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362] , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this 9 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (¼th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
25. Conventional head was also considered in the Pranay Sethi(supra) case in para 59.8 which is quoted hereinbelow:-
59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses shold be Rs. 15,000/-
Rs. 40,000 and Rs. 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10 % in every three years.
26. It appears that the learned tribunal in the award dated 24.03.2018 in Motor Accident Claim Case No. 12/2014, 1/4th deducted as personal expenses of the deceased. Since there was two dependents in the said case in view of Pranay Sethi(supra) and looking into "Sarla Verma & Others V. Delhi Transport Corporation and Another" (2009) 6 SCC 121, the learned tribunal has tribunal has calculated 1/4th on the point of expenses of the deceased and the same will 1/3rd in view of Pranay Sethi(supra) based on "Sarla Verma" case in para 30 to 32. In the conventional head in view of "Pranay Sethi" (supra) maximum limit is made 70,000/- subject to 10% enhancement. The accident took place in the year, 2013 whereas the judgment in "Pranay Sethi(supra) has been delivered in the year, 2017 and in view of that increase of 10% is not coming in the way and in view of that conventional head is required to be maintained to the tune 10 of Rs. 70,000/- only in both the awards.
27. It appears that in view of the calculation made in the award dated 27.01.2018 in Motor Accident Claim Case No. 13/2014, the calculation are correct so far salary and deduction of 1/3rd on account of personal deduction is concerned however, conventional head is not in accordance with Pranay Sethi(supra) accordingly the conventional head is restricted to Rs. 70,000/- in both the awards. The award dated 24.03.2018 passed in Motor Accident Claim Case No. 12/2014 is modified to the above extent. The Claimants shall be entitled for the conventional head to Rs. 70,000/- lump sump and 1/3rd be deducted on the part of expenses of the deceased. The calculation made in award dated 27.01.2018 passed in Motor Accident Claim Case No. 13/2014 are correct.
28. M.A. No. 451 of 2018 and M.A. No. 452 of 2018 filed by the Insurance Company are partly allowed in above terms.
29. M.A. No. 436/2018 filed by the claimant for enhancement of award is dismissed.
30. In view of above orders, the Insurance Company shall satisfy the award within two months. The statutory amount deposited by the Insurance Companies shall be transmitted back to the learned tribunal forthwith. The learned tribunal shall take endeavor to release the said amount and fruit of award in favour of the claimants at the earliest if the same has not been provided as yet.
31. Pending I.A, if any, stands, disposed of.
32. Let L.C.R. be transmitted to the concerned Court.
( Sanjay Kumar Dwivedi, J.) Satyarthi/-A.F.R.