Jharkhand High Court
New India Assurance Company vs Jirwa Devi & Ors on 6 May, 2015
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 74 of 2010
1. Jirwa Devi, wife of Late Pairu Turi
2. Golden Turi, son of Late Pairu Turi
3. Babu Turi, D/o Late Pairu Turi
4. Mukesh Turi, son of Late Pairu Turi
All resident of Village-Bhuiandih, P.S. Sadar, P.O. Chatra, Dist. Chatra
...........Appellants
Versus
1. Mrs. Puran Sao, son of Sri G. Saw
Resident of village Sinpur Kamta, PO and PS Chatra, District Chatra
2. The New India Assurance Company, C/o Manager, the New India
Assurance Company, PO, PS and District Hazaribagh
.... Respondents
With
C.O. no. 1 of 2011
The New India Assurance Company, C/o Manager, the New India Assurance
Company, PO, PS and District Hazaribagh ......Appellant
Versus
1. Jirwa Devi, wife of Late Pairu Turi
2. Golden Turi, son of Late Pairu Turi
3. Babu Turi, D/o Late Pairu Turi
4. Mukesh Turi, son of Late Pairu Turi
All resident of Village-Bhuiandih, P.S. Sadar, P.O. Chatra, Dist. Chatra
5. Mr. Puran Sao, son of Sri G. Saw, resident of village Sinpur Kamta, PO
Chatra, PS Chatra, District-Chatra ...........Respondents
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellants : Mr. Vijay Kumar Sharma, Advocate
For the Respondent no. 2 : Mr. D.C. Ghose, Adv.
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14/Dated: 6th May, 2015
This appeal has been preferred against the judgment/award dated 30.01.2010 passed in (compensation) claim case no. 02 of 2004 passed by Additional Claim Tribunal, F.T.C. III, Chatra whereby and whereunder the respondent- The New India Assurance Company was directed to pay the compensation amount of Rs. 4,32,000/-(four lacs thirty two thousand only) to Appellants/claimant after deducting the interim compensation of Rs. 50,000/- (fifty thousand only).
2. Learned counsel for the claimant/appellants has submitted that the deceased was a married man of 27 years. He is survived by his widow/wife and three minor children. Considering the number of dependents, the tribunal should have deducted one-fourth of the income as the amount which the deceased would have spent on personal expenses. That the tribunal has deducted one-third as personal expenses which is not in -2- consonance with the ratio laid down by the Supreme Court in the case of Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and Another reported in [(2009), 6, SCC 121)]. It is argued that the court below while awarding the compensation has not considered the future prospects of the deceased who used to sell and make bamboo baskets. That the court below has failed to appreciate that 50% of the income should have been added as per the ratio laid down in the case of Rajesh and Others Vs. Rajbir Singh and Others reported in [(2013), 9, SCC 54)]. It is urged that no amount has been awarded for loss of estate, loss of consortium, love and affection and funeral expenses.
3. Learned counsel on behalf of respondents-Insurance Company has submitted that the cross objection has been filed by him wherein it has been asserted that said Jeep though was validly insured with the respondent but the said insurance policy had a coverage of only 12 passengers, whereas it is admitted as per Ext. 1 (F.I.R.) that the offending vehicle was carrying 35 to 40 passengers. From the facts and circumstances it would be evident that the deceased was not one of the 12 passengers entitled for coverage under the policy. As per recital in Ext. 1 it is manifestly clear that the deceased was pressed to the ground when the Jeep turned turtled, hence it can be inferred that he was a passenger travelling in the Jeep in excess of the 12 passengers. It is urged that the terms and conditions of the insurance policy has been violated, the Insurance Company has the right to recover the alleged compensation amount from the owner. It is urged that the learned Tribunal while observing that the Insurance Company is liable to indemnify the owner has not given the liberty to the Insurance Company for recovering the said amount from the owner.
4. It is urged that the future prospects cannot be granted when there is no specific pleading to that effect. Moreover, the claimant has not led any evidence in the court below to sustain his plea of future prospects on the basis of a fixed income. In support of his contention, learned counsel has placed reliance on the decision in the case of Bijoy Kumar Dubey Vs. Bidyadhar Dutta reported in [(2006), 1, TAC, 969)]. It has been contended by the learned counsel for the respondents, that from the application filed in the court it would be evident that the claimant has mentioned the income of deceased as Rs. 18,00/-(one thousand eight hundred only) per month, by doing labour work and has claimed compensation amount of Rs. 3,10,000/- (three lacs ten thousand only). In the -3- statement of claimant there is no whisper regarding the future prospects of higher income/earning by the deceased.
5. Heard. Perused the impugned order.
6. Admittedly, the deceased was travelling in Jeep bearing registration no. JH-13A-0867 and the said vehicle was duly insured by the respondents and the insurance coverage was only for 12 passengers. From the F.I.R., i.e., Ext. 1, it is manifestly clear that 35 to 40 passengers were travelling in the said Jeep which turned turtled and the deceased came under the said overturned Jeep and sustained injury, whereafter he died. The circumstances show that the deceased was not one of the 12 passengers covered under the insurance policy rather he was a passenger in excess to the prescribed limit while travelling in the Jeep. There has been violation of the terms of the conditions of the insurance policy and the owner of the said Jeep is liable to pay the said amount, since, the Jeep was insured with the Insurance Company, the Insurance Company shall indemnify the owner and pay the compensation amount with liberty to recover the amount from the owner of the said Jeep.
7. It transpires from the office note that notice was validly served upon respondent no. 1 (the owner of the Jeep) bearing registration no. JH- 13A-0867, but the owner has not appeared personally or through any counsel, accordingly, the case has been heard ex-parte against respondent no. 1/owner of the Jeep.
8. It is evidenced from the material available on record that learned tribunal has not awarded any amount for loss of consortium, love and affection and funeral expenses to the dependents i.e. the wife and the minor children. Learned tribunal also erred in deducting one-third of the earnings of the income towards personal expenses as in a case where the dependents are 4 (four) in number, one-fourth of the income should have been deducted towards personal expenses of the deceased. In the claim application the income of the deceased has been mentioned as Rs. 1800/- (one thousand eight hundred only) per month and the tribunal has assessed the income as Rs. 3,000/- (three thousand only) per month.
9. In view of the discussions made above and the facts and circumstances, it would be just and proper to enhance the compensation amount of Rs. 4,32,000/-(four lacs thirty two thousand only) by Rs. 1, 75,000/- (one lacs seventy five thousands only) and the said amount shall be deposited by the claimant in fixed deposit for at least 5 years for the -4- benefit of the children however, she will be entitled to receive the interest on the fixed deposit to meet the required daily expenses, if any.
10. With the said directions and observations the impugned order dated 30th January, 2010 passed by the court below is modified to the extent noted above and the appeal allowed in part. C.O. 1 of 2011 filed by the respondent/New India Assurance Company stands allowed with liberty to recover the compensation amount paid by them from the owner of the Jeep/respondent no.1.
11. Let the matter be sent to Lok Adalat scheduled to be held on 9th May, 2015.
(Amitav K. Gupta, J.) Tarun /-