Jharkhand High Court
Sairun Nisha & Ors vs The Branch Manager on 29 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.269 of 2013
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Sairun Nisha & Ors. .... .... Claimants/ Appellants Versus The Branch Manager, The New India Assurance Company Limited, Saheed Chowk, Kutchery Road, P.O. G.P.O., P.S. Kotwali, District -Ranchi & Another .... .... Opp. Parties/Respondents
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellants : Nikhil Ranjan, Advocate
For the Respondent No.1 : Mr. Manish Kumar, Advocate
For the Respondent No.2 : None
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Order No.07 Dated- 29.11.2022
I.A. No.3826 of 2014
Heard the parties.
This interlocutory application has been filed with a prayer to condone the delay of 100 days in filing this appeal.
It is submitted by the learned counsel for the appellants that the appellants are poor villagers and they have no source of earning and as they had gone to the Tea Estate of Assam, hence they could not immediately contact their lawyer in filing this appeal which resulted in delay. It is further submitted by the learned counsel for the appellants that the appellants have very good grounds to agitate in this appeal and unless the delay of 100 days is condoned, the appellants will be highly prejudiced.
Considering the aforesaid facts, the delay of 100 days in filing this appeal is condoned.
This interlocutory application stands disposed of accordingly.
(Anil Kumar Choudhary, J.) Sonu-Gunjan/-
M.A. No.283 of 2013With M.A. No.269 of 2013 With M.A. No.284 of 2013 IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No.283 of 2013
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The Branch Manager, The New India Assurance Company Limited, Branch Office at Saheed Chowk, Kutchery Road, P.O. G.P.O., P.S. Kotwali, District -Ranchi, represented through its Divisional Manager, Divisional Office I, Main Road, P.O. Ranchi, P.S. Lower Bazar, Ranchi, District -Ranchi..
.... .... Appellant/ Opp. Party No.2 Versus (1) Badruddin Nisha, wife of Md. Ataullah (2) Sairun Nisha, Daughter of Md. Attaullah (3) Mahrun Nisha, Daughter of Md. Attaullah (4) Kharrun Nisha, Daughter of Md. Attaullah (5) Juhi Nisha, Daughter of Md. Attaullah (6) Naushad Alam, son of Md. Attaullah All residents of Village -Kurgi, P.O. & P.S. -Itki, District - Ranchi.
.... .... Respondents/Applicants (7) Uma Shankar Mahto, Son of -Girdhari Mahto, Resident of Gram Piska Nagri, Deori, P.O. & P.S. -Ratu, District -Ranchi.
.... .... Respondent/Opp. Party No.1.
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For the Appellant : Mr. Manish Kumar, Advocate
For the Respondent Nos. 1 to 6 : Mr. Nikhil Ranjan, Advocate
For the Respondent No.7 : None
With
M.A. No.269 of 2013
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(1) Sairun Nisha, Daughter of Md. Attaullah (2) Mahrun Nisha, Daughter of Md. Attaullah (3) Kharrun Nisha, Daughter of Md. Attaullah (4) Juhi Nisha, Daughter of Md. Attaullah (5) Naushad Alam, son of Md. Attaullah 1 M.A. No.283 of 2013 With M.A. No.269 of 2013 With M.A. No.284 of 2013 Nos. 3 to 5 are minor and represented through their elder sister appellant no.1 who has no adverse interest against them. All residents of Village & P.O. -Kurgi, P.S. -Itki, District - Ranchi.
.... .... Claimants/ Appellants
Versus
1. The Branch Manager, The New India Assurance Company Limited, Saheed Chowk, Kutchery Road, P.O. G.P.O., P.S. Kotwali, District -Ranchi.
2. Uma Shankar Mahto, Son of -Giridhar Mahto, Resident of -
Gram Piska Nagri, Deori, P.S. -Ratu, District -Ranchi.
.... .... Opp. Parties/Respondents
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For the Appellants : Mr. Nikhil Ranjan, Advocate For the Respondent No.1 : Mr. Manish Kumar, Advocate For the Respondent No.2 : None With M.A. No.284 of 2013
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The Divisional Manager, The New India Assurance Company Limited, Ashok Automobile Building, Division Office I, Mani Road, P.O. Ranchi, P.S. Lower Bazar, Ranchi, District -Ranchi..
.... .... Appellant/ Opp. Party No.2
Versus
(1) Ramait Devi, wife of Late Gopi Kumhar @ Mahto (2) Shiwam Kuar, son of Late Gopi Kumhar @ Mahto (3) Bablu Kumar, son of Late Gopi Kumhar @ Mahto (4) Kajal Kumar, daughter of Late Gopi Kumhar @ Mahto All residents of Village -Piska Nagri, P.O. Nagri, P.S. Ratu, District -Ranchi.
.... .... Respondents/Applicants (5) Uma Shankar Mahto, Son of - Giridhar Mahto, Resident of -
2 M.A. No.283 of 2013With M.A. No.269 of 2013 With M.A. No.284 of 2013 Gram Piska Nagri, Deori, P.O. & P.S. -Ratu, District -Ranchi.
.... ....Respondent/Opp. Party No.1.
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For the Appellant : Mr. Manish Kumar, Advocate
For the Respondents : None
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(Against the common Judgment and Award dated 05.03.2013 passed by the Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No.227 of 2004/232 of 2004)
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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court: - Heard the parties.
2. Since all the three appeals have arisen out of the common judgment and award, passed by the Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No. 227 of 2004/232 of 2004 whereby and where under the learned tribunal has awarded a sum of Rs.3,34,000/- to the claimants of Compensation Case No. 227 of 2004 and Rs.4,28,000/- to the claimants of Compensation Case No. 232 of 2004 with simple interest thereon at the rate of 6% per annum. Hence all the three appeals are disposed of by this Common Judgment.
3. Since simple questions of law and facts are involved in these appeals, hence these appeals are disposed of at the stage of 'Admission'.
4. Though all the parties have appeared through their counsel but no-one appears in-spite of repeated calls on behalf of respondent no.7 in M.A. No. 283 of 2013, for the respondent no.2 in M.A. No. 269 of 2013 and for the respondents in M.A. No. 284 of 2013. Hence, these appeals are heard ex-parte against them.
5. The brief facts of the case is that the death of the deceased - Jainyal Haque and Gopi Kumhar @ Mahto was caused by the motor vehicle accident involving the offending truck bearing registration no. BR14G -9122. The case of the claimants is that both the deceased were travelling in the said offending vehicle which was being rashly and negligently driven by its driver and the said vehicle turned turtle causing 3 M.A. No.283 of 2013 With M.A. No.269 of 2013 With M.A. No.284 of 2013 injuries to the deceased. It is the case of the applicants that the deceased - Jainyal Haque in respect of whose death Compensation Case No. 227 of 2004 was filed was working as a labourer in the truck and he was earning Rs.3,000/- per month. The case of the claimants of Compensation Case No. 232 of 2004 which has been filed in respect of death of the deceased - Gopi Kumhar @ Mahto is that he was returning home in the said truck but due to rash and negligent driving of the truck, he sustained injuries due to which he was treated at RIMS, Ranchi. It is the case of the claimants that the deceased Gopi Kumhar @ Mahto was earning Rs.3,500/- per month as Khalasi in the truck in question. The opposite party no.1, who is the owner of the truck challenged the maintainability of the claim petition on various technical grounds. It is further submitted that since the vehicle was insured with the opposite party no.2 -insurance company, hence the opposite party no.2 -insurance company is liable to pay the compensation, if any, awarded.
6. The opposite party no.2 -insurer of the vehicle in its written statement also challenged the maintainability of the claim application. They pleaded that at the time of accident, 30-32 passengers were loaded in the truck in violation of the terms and conditions of the insurance policy. Hence, the insurance company cannot be held liable because of violation of the terms and conditions of the insurance policy.
7. On the basis of the rival pleadings of the parties, the learned tribunal settled the following six issues:-
(1) Are compensation cases No. 227 of 2004 and compensation case No. 232 of 2004 as framed maintainable?
(2) Whether the applicants of both the compensation cases have valid cause of action for their respective claim petition? (3) Whether the deceased namely Jainyal Haque and Gopi Kumhar died in the accident caused on 19.08.2004 due to rash and negligent driving of driver of truck bearing No. BR-14G-9122? (4) Whether both the deceased namely Jainyal Haque and Gopi Kumhar were travelling in the truck as gratuitous passenger or they were labour and Khalasi of the truck bearing No. BR-14G-9122? (5) Whether there is any violation of terms and conditions of the policy by the owner of the vehicle?
(6) Whether the applicants of both compensation cases are entitled to get compensation as prayed for? If yes then to what extent and against whom?4 M.A. No.283 of 2013
With M.A. No.269 of 2013 With M.A. No.284 of 2013
8. The learned tribunal considered the oral testimonies of two witnesses examined by the claimants and the documents which have been marked Ext. 1 &2 in the two separate cases and mark for identification X & X/1 in compensation case no. 227 of 2004 and mark for identification X, X/1 & X/2 in compensation case no. 232 of 2004. The learned tribunal first took up issue no.3 and came to the conclusion that the deceased persons namely Jainyal Haque and Gopi Kumhar @ Mahto died in the accident which was caused on 19.08.2004 due to rash and negligent driving of the driver of the offending truck. Thereafter the learned tribunal took up issue no.4 and considering the materials in the record came to the conclusion and erroneously observed that the facts stated in the fardbeyan and charge sheet have no evidentiary value and excluding such evidence, came to the conclusion that the deceased Jainyal Haque and Gopi Kumhar @ Mahto were occupant of the truck in capacity of labour and Khalasi respectively and they were not gratuitous passengers. The learned tribunal next took up issue nos. 1, 2 & 6 together and assessed the monthly income of the deceased -Jainyal Haque as Rs.3,000/- as claimed by him and also assessed the income of the deceased -Gopi Kumhar @ Mahto as Rs.3,000/- and went on to award the said compensation as already indicated above. It is pertinent to mention here that M.A. No. 283 of 2013 and M.A. No. 284 of 2013 have been filed by the appellant-insurance company in respect of the two separate compensation cases i.e. M.A. No. 283 of 2013 has been filed against the judgment and award passed in compensation case no. 227 of 2004 and M.A. No. 283 of 2013 has been filed against the judgment and award passed in compensation case no. 232 of 2004 whereas M.A. No. 269 of 2013 has been filed by the claimants of compensation case no. 227 of 2004.
9. Mr. Manish Kumar- learned counsel for the appellant of M.A. No. 283 of 2013 and M.A. No. 284 of 2013 relying upon the judgment of the Hon'ble Supreme Court of India in the case of National Insurance Company Limited vs. Rattani and Others reported in (2009) 2 SCC 75 submits that the tribunal erred by not relying upon the contents of the F.I.R. and charge sheet which was filed and proved by the claimant themselves.
5 M.A. No.283 of 2013With M.A. No.269 of 2013 With M.A. No.284 of 2013 It is next submitted by Mr. Manish Kumar, relying para-13 of the said judgment which reads as under:-
"13. Furthermore in their depositions the witnesses examined on behalf of the claimants themselves stated that about 30-40 persons were travelling in the tempo truck. All 30-40 persons by no stretch of imagination could have been the representatives of the owners of goods, meaning thereby, the articles of gift."
that as several persons were admittedly travelling in the said truck so all these persons could not have been said to be the representative of the owners of the goods.
10. Mr. Manish Kumar next submits that in the F.I.R. itself which has been marked as Ext. 1 as also in the charge sheet which has been marked Ext.2, it has categorically been mentioned that the deceased was travelling in the truck along with several business men. It is next submitted that charge-sheet submitted by the police after due investigation of the case. Hence, it is submitted that from the descriptions made in the F.I.R. and charge sheet, it is crystal clear that the deceased were travelling in the said truck as gratuitous passengers. It is then submitted by Mr. Manish Kumar that it being a settled principle of law that the contents of the F.I.R. and charge-sheet will prevail over the oral testimony of the witnesses examined in the matter of motor vehicle accident claim case. Hence, it is submitted that as the deceased persons were travelling as gratuitous passengers in violation of the terms and conditions of the policy of insurance issued by the appellant- Insurance Company in favour of the owner of the vehicle -respondent -opposite party No.1- owner of the vehicle namely Uma Shankar Mahto. Hence, the impugned judgment and award be modified by absolving the Insurance Company of the liability to pay the compensation amount and instead the owner of the vehicle being the -respondent -opposite party No.1- Uma Shankar Mahto be directed to pay the compensation.
11. Mr. Nikhil Ranjan, the learned counsel for the claimant - respondents on the other hand defends the impugned judgment and award and submits that the tribunal has rightly held that the insurance company liable to pay the compensation amount. It is next submitted by Mr. Nikhil Ranjan, the learned counsel for the respondent-claimants who 6 M.A. No.283 of 2013 With M.A. No.269 of 2013 With M.A. No.284 of 2013 are the appellants in M.A. No. 269 of 2013 that the compensation amount awarded by the learned tribunal is meagre. It is then submitted that the government by making the learned tribunal has failed to add the future prospects of 40% to the income of the deceased and has not awarded Rs.70,000/- under the conventional head in view of the settled principle of law in the case of National Insurance Company Limited Vs. Pranay Sethi & Others, reported in, (2017) 16 SCC 680. Hence, it is submitted that the Miscellaneous Appeal Nos. 283 and 284 of 2013 be dismissed and the impugned judgment and award be modified by enhancing the amount of compensation.
12. Having heard the rival submissions made at the Bar and after going through the materials in the record, the following points for determination crop up for determination in this appeal:-
"(i) Whether this is a fit case where the appellant-Insurance Company be absolved of the liability to pay the compensation amount and if yes then who is to pay the compensation amount?
(ii) Whether the amount of compensation awarded in compensation case no. 227 of 2004 be enhanced?"
13. It is pertinent to mention here that it is a settled principle of law that the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn around and contend that the other contents contained in the rest part thereof had not been proved as has been held by the Hon'ble Supreme Court of India in the case of Oriental Insurance Company Limited Vs. Premlata Shukla and Others, reported in (2007) 13 SCC 476 para -13 to 15 of which read as under:-
13. However, the factum of an accident could also be proved from the first information report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved.
Both the parties have relied thereupon. It was marked as an exhibit as both the parties intended to rely upon them.
14. Once a part of it is relied upon by both the parties, the learned 7 M.A. No.283 of 2013 With M.A. No.269 of 2013 With M.A. No.284 of 2013 Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document having been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.
15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. In Hukam Singh the law was correctly been laid down by the Punjab and Haryana High Court stating: (PLR p. 911, para 8).
"8. Mr G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The trial court had discussed the evidence of Ram Partap in the light of the report Exhibit D-1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement made by him in the committing court. It appears that the counsel for the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to approbate and reprobate."
14. Now, coming to the facts of the case, both in the F.I.R. as well as in the charge-sheet which have been relied upon by the claimants and from the side of the claimants the same has been proved and marked as Ext. 1 and 2 respectively; it has categorically been mentioned that the deceased persons along with others were travelling in the truck and while the said truck was being driven rashly and negligently, the said truck turned turtle and the death of the deceased persons occurred because of 8 M.A. No.283 of 2013 With M.A. No.269 of 2013 With M.A. No.284 of 2013 the said accident. Under such circumstances and in view of the settled principle of law, the learned tribunal certainly erred by not relying upon the contents of the F.I.R. and not considering the charge-sheet and erroneously made a statement that the facts stated in the fardebeyan and the charge sheet has no evidentiary value. Therefore, this Court is of the considered view that the tribunal erred by holding that the deceased persons were not gratuitous passengers. Hence, this Court is of the considered view that the appellant- Insurance Company is not liable to pay the compensation amount and instead of the Insurance Company, it is the owner of the vehicle being the respondent/opposite party No.1- Uma Shankar Mahto who has to pay the compensation amount because the deceased persons were travelling as a gratuitous passenger in the offending truck.
15. In view of the principle of law settled by the Hon'ble Supreme Court of India in the case of Manuara Khatun & Ors. vs. Rajesh Kr. Singh & Ors., reported in (2017) 4 SCC 796, para-21 & 22 of which reads as under:-
"21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (Respondent 3) -- they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent 3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo) Respondent 1 in execution proceedings arising in this very case as per the law laid down in para 26 of Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] quoted supra.
22. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that Respondent 3 United India Insurance Co.
Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter Respondent 3 United India Insurance Co. Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending vehicle (Tata Sumo) Respondent 1 in these very proceedings by filing execution application against the insured."
This Court is of the considered view that since the insurance policy is not under dispute hence, the appellant-Insurance Company be directed first to pay the awarded sum to the claimants and then to recover 9 M.A. No.283 of 2013 With M.A. No.269 of 2013 With M.A. No.284 of 2013 such amount paid, from the owner of the said offending truck bearing registration No. BR14G -9122 in execution proceedings arising in the said case as laid down in para -26 of Manager, National Insurance Company Limited v. Saju P. Paul & Anr., reported in (2013) 2 SCC 41.The first point for determination is answered accordingly.
16. So far as the contention of the appellants of M.A. No. 269 of 2013 for enhancement of compensation is concerned, the age of the deceased was assessed to be 18 years, in view of para-59 of National Insurance Company Limited Vs. Pranay Sethi & Others (supra), 40% of the total income of the deceased ought to have been added towards future prospects. So the total income comes out to Rs.50,400/-. Deducting 50% towards the personal income of the deceased, his net annual income comes out to Rs.25,200/-. The multiplier 18 has rightly been applied. So applying the multiplier 18 in view of the fact that the deceased was 18 years of age, the amount comes out to Rs.4,53,600/-. Adding Rs.70,000/- under the conventional head, in view of the principle of law settled in the case of National Insurance Company Limited Vs. Pranay Sethi & Others (supra), the total amount comes to Rs.5,23,600/-. Therefore the amount of compensation is to be enhanced to this extent. The second point for determination is answered accordingly.
17. In view of the discussions made above, the impugned judgment and award is modified by directing the appellant-Insurance Company to pay the compensation amount of Rs.5,23,600/- with interest thereon as stipulated by the learned tribunal to the claimants-appellants of M.A. No. 269 of 2013 in compensation case no. 227 of 2004 and Rs.4,28,000/- to the claimants-appellants of compensation case no. 232 of 2004 within three months from the date of this judgment.
18. The impugned judgment and award is modified to the aforesaid extent only.
19. Let a copy of this Judgment along with the Lower Court Records be sent back to the learned tribunal concerned forthwith.
20. The Registrar General of this Court is directed to remit the statutory amount, if any, deposited by the appellants in this Court in connection with M.A. No. 283 of 2013 and M.A. No. 284 of 2013, to the 10 M.A. No.283 of 2013 With M.A. No.269 of 2013 With M.A. No.284 of 2013 concerned Motor Vehicle Accident Claims Tribunal by appropriate mode forthwith.
21. In the result, these appeals are disposed of with the aforesaid modification of the judgment and award.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 29th of November, 2022 AFR/ Sonu-Gunjan/-
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