Jharkhand High Court
Sumitra Devi vs Rajesh Prasad Nayak on 22 July, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.369 of 2017
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1. Sumitra Devi
2. Tofan Manjhi
3. Badhni Devi
4. Anita Kumari .....Appellants VERSUS
1. Rajesh Prasad Nayak
2. M/s Shriram General Insurance Co. Ltd, Ranchi..... Respondents With M.A. No.739 of 2017
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Shriram General Insurance Co. Ltd. ........Appellant
-V E R S U S-
1. Sumitra Devi
2. Tofan Manjhi
3. Badhni Devi
4. Anita Kumari
5. Rajesh Prasad Nayak ...........Respondents CORAM: HON'BLE MR. JUSTICE ANANDA SEN.
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For the Claimants : Mr. Nikhil Ranjan Advocate For the Insurance Co : M/s Asutosh Anand, Advocate.
For the owner: : Mr. Santosh Kumar, Advocate.
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11/22.07.2022: M.A. No. 369 of 2017 has been filed by the claimants praying therein
for enhancement of awarded amount of compensation vide Award dated 30.11.2016 passed by the Principal Judge-cum-P.O., Motor Accident Claim Tribunal, Bokaro in T.M.V. Claim Case No. 97/2014, whereas, M.A. No. 739 of 2017 has been filed by the Insurance Company challenging the award, whereby a sum of Rs.8,57,000/- has been awarded as amount of compensation with interest @ 9% per annum.
2. Since the lower court record is already on record and the parties have submitted that these appeals can be disposed of at this stage itself. Thus, I am disposing of these appeals at this stage itself.
3. The claimants filed M.A. No. 369 of 2017 stating therein that in fact the income of the deceased assessed by the Tribunal is on much lower side. It is their case that the deceased was earning Rs.9,000/- per month, but for the reasons best known, the Tribunal has considered the income of the deceased to be Rs.3,000/- per month. As per their claim, there is consistent evidence that the deceased was a driver and was being paid Rs.300/- per day, but only on the ground that there is no documentary evidence to support the income, Rs.3000/- per month has been assessed to be the income of the deceased, which is bad and against the evidence, led by the parties. As per them, the application of 2. multiplier should be '18' in place of '16'. Further, the Tribunal has not enhanced the amount of compensation on account of future prospect, which according to them is illegal.
4. In reply, the counsel for the Insurance Company submits that the quantum assessed by the Tribunal is on much higher side as Rs.4,25,000/- has been awarded under the conventional head, which is not in accordance with the judgment passed by the Hon'ble Supreme Court of India in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others, reported in (2017) 16 SCC
680. As per him, the deceased was aged about 25 years, thus as per the second schedule of Motor Vehicle Act, the multiplier has correctly been applied. It is his contention that the excess amount which has been awarded under the convention head will off set the future prospect. He also submits that the interest has been awarded @9% per annum, which is on much higher side, which should also be taken note of. As per him, the Tribunal has failed to consider the aspect of contributory negligence, which is evident from this case itself. He also submits that the offending vehicle i.e. Dumper was being driven by a person, who did not possess valid driving licence, that being so, the right of recovery should be awarded in favour of the Insurance Company. Further on the point of quantum, he also challenges the deduction on account of personal expenses, which according to the Insurance Company should be 1/3rd and not 1/4th.
5. Countering the appeal preferred by the Insurance Company, the counsel for the claimants submit that the Insurance Company has not verified the driving licence of the driver of the dumper, thus, they cannot take a plea that the licence of the driver of the dumper was fake or the offending vehicle was being driven by a person without licence. On the facts of this case and the materials on record, since the primary onus about validity of the driving licence has been discharged by the claimants, the Insurance Company, who has not adduced any contra evidence, is not entitled to get any benefit of recovery of amount of compensation from the owner of the offending vehicle. On the point of contributory negligence, it has been submitted that no positive evidence has been led by the Insurance Company to prove that there was any contributory negligence.
6. On the basis of the aforesaid argument of the parties, I am deciding these appeals based on evidence and materials on record.
7. On 3.9.2014 at about 11:45 a.m. the deceased along with his relative was going to his in-laws house at village Parsabera (Goniato), Bokaro, by his Hero Honda Motorcycle bearing Registration No. JH 09Q 2119. While he reached near the Boro Nala Bridge (Bokaro Thermal, Narki), one dumper 3. bearing registration No. JH 09K 3851 being driven by the driver rashly and negligently came from the opposite direction and dashed the said motorcycle due to which, both the person fell down and sustained severe injuries. The injured were taken to Bokaro for treatment, but the deceased died on the way to hospital.
8. The owner of the offending dumper has appeared and filed his written statement. M/s Shriram General Insurance Co. Ltd., i.e. the Insurance Company of the offending dumper has also appeared and filed their separate written statement.
9. From the record, I find that offending dumper was having valid insurance policy issued by the Insurance Company being Policy No. 100003/31/14/687439 which was valid from 20.2.2014 to 19.2.2015, tax paid till 9.11.2014, fitness valid till 31.8.2015 and the driver had valid driving licence on the date of accident.
10. From the written statement of the owner, I find that number of the driving Licence of the driver has been mentioned. Once the number of driving licence has been mentioned, it was duty of the Insurance Company to get the same verified. Admittedly the Insurance Company failed to verify the validity or genuineness of the said driving licence which has already been provided. The Hon'ble Supreme Court in the case of Pappu & Others Vs. Vinod Kumar Lamba reported in (2018) 3 SCC 208 has held that the onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorized by him to drive the vehicle and was having a valid driving licence at the relevant time. Considering the aforesaid judgment, since the Insurance Company has not verified the driving licence, thus, they have failed to discharge the onus which was shifted upon them. The plea taken before the Tribunal was that there was violation of the terms and condition of the policy however, this Court finds that there is no evidence to suggest that the offending vehicle was being driven by a person without authority of law.
11. The Insurance Company has taken plea about the contributory negligence. The witnesses stated that it was the driver of the dumper, who was rashly and negligently driving the offending vehicle, which caused the accident, resulting in death of the deceased. Further I find that the Hon'ble Supreme Court in the case of Meera Devi and Anr. Vs. Himachal Pradesh Road Transport Corporation and Others, reported in (2014) 4 SCC 511 in para 10 has held as under;
"10. To prove the contributory negligence there must be cogent evidence. In the instant case, there is no specific 4. evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case."
12. From the aforesaid judgment, it is clear that to prove the contributory negligence, there must be cogent evidence. In this case, there is no evidence to prove that the accident had taken place due to rash and negligent driving of the deceased. Only by way of an empty formality this plea has been taken.
13. Further the charge-sheet in criminal case being Bokaro Thermal P.S. Case No. 108/2014, which was registered after the accident, the driver of the dumper was chargesheeted for committing offence under Sections 279, 337, 338, 427 and 304A of the IPC, which suggests that it was the driver of the dumper i.e. offending vehicle who is liable for causing the accident. In this case, the Insurance Company has filed their written statement and has taken the ground of contributory negligence, but has not led any evidence in support. There is no evidence on record to conclude that there was contributory negligence on the part of the deceased. The Insurance Company has failed to provide any evidence that the deceased was also liable of the accident. Thus, I hold that in absence of any evidence, this Court cannot hold that there was contributory negligence on the part of the deceased. Rather there are evidence that the dumper was the offending vehicle, which the accused was driving. Further I find that there is no violation of the conditions of the insurance policy, thus the Insurance Company is not entitled to recover the amount of compensation from the owner of the vehicle.
14. So far as quantum is concerned, I find that the Tribunal has granted 4,25,000/- under the convention head, which needs to be corrected. In terms of the judgment of Hon'ble Supreme Court in the case of Pranay Sethi (Supra), the claimants are entitled to Rs.70,000/- under the conventional head. The Tribunal has applied multiplier as '16' relying upon the second schedule of the Motor Vehicles Act, thus the Tribunal has committed illegality. The Hon'ble Supreme Court in the case of Pranay Sethi (supra) relying upon the judgment of Sarla Verma Vs. DTC, reported in (2009) 6 SCC 121, has held that the multiplier of '18' should be applied when the age of deceased is 25 years. Thus the application of multiplier should be '18' and not '16'.
15. The enhancement under the future prospect has not been awarded. The deceased was aged about 25 years at the time of accident and was self- employed. The fact that he was a driver is not disputed and there are oral 5. evidences, which suggest that the deceased was a driver and that being so, the amount of compensation should have been enhanced by 40% considering the future prospect of the deceased in terms of judgment of Hon'ble Supreme Court in the case of Pranay Sethi (supra).
16. Now the question which falls for consideration before this Court is what would be the income of the deceased. In respect of income of the deceased, admittedly there is no documentary evidence. C.W.1 is Govind Soren who stated that the deceased was a driver and was having valid driving licence. His driving licence was also produced and marked as Ext.1. C.W.2- Sumitra Devi, wife of the deceased, who deposed that the deceased was earning Rs.300/- per day by driving the vehicle. She reiterated her statement in examination-in-chief. C.W.3-Binod Hembrum has stated that the deceased was engaged by him to drive his vehicle. He stated that he was paying Rs.300/- per day. In cross examination, he admitted that the deceased was under his employment since last three years, but admits that there is no documentary evidence in support of paying his daily wages. From the aforesaid evidence, it is clear that the deceased was a driver and was self employed. There is evidence which suggests that the deceased was earning Rs.300/- per day at the time of accident. In view of this positive evidence, when there is no evidence contra on record, the Tribunal could not have assessed the income of deceased as Rs.3000/- per month. There are 26 normal working days in a month, which needs to be taken into consideration for considering the monthly income of the deceased. Thus, the monthly income of the deceased should be 26 x Rs.300 =Rs.7,800/- per month.
17. Now on the part of interest, I find that the tribunal has granted interest @ 9% per annum. Accident is of the year 2014, the rate of interest thus is on much higher side, in fact, it should be @ 7.5% per annum. Thus, the claimants are entitled to interest @7.5% per annum on the awarded amount of compensation. Taking into consideration the dependency upon the deceased i.e. four persons depends upon the deceased, the deduction should be 1/4th and not 1/3rd.
18. Thus, in view of what has been held above, the amount of compensation will be re-calculated as follows:-
Rs.7,800(income) x 12 x 18 (multiplier) =Rs.16,84,800/- Rs.16,84,800 - Rs.4,21,200 (deduction) =Rs.12,63,600/- Rs.12,63,600 +Rs.5,05,440(future prospect) =Rs.17,69,040/- Rs.17,69,040/- + 70,000 (conventional head) =Rs.18,39,040/-
(Rupees eighteen lakh thirty nine thousand forty) 6.
19. The entire amount of compensation along with interest @7.5% per annum, from the date of filing of claim application till the same is paid, will be paid to the claimants within twelve weeks from today.
20. With the aforesaid observation and direction, M.A. No. 369 of 2017 filed by claimants stands allowed, whereas M.A. No. 739 of 2017, filed by the Insurance Company is dismissed.
(ANANDA SEN, J.) Anu/-C.P.2.