Jharkhand High Court
Smt. Lilawati Devi vs Imtiyaz Alam on 29 June, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 55 of 2015
With
M.A. No. 93 of 2015
1. Smt. Lilawati Devi
2. Bhim Deo Pandit
3. Munna Kumar
4. Smt. Dulari Devi
5. Deepan Pandit............ Appellants (In M.A. No. 55 of 2015)
........
ICICI Lombard General Insurance Company Limited through its Legal Manager.......Appellants (In M.A. No. 93 of 2015) Versus
1. Imtiyaz Alam 2 (a) Govind Kumar Gupta
3. Kamaluddin
4. The ICICI General Insurance Company Limited through the Branch Manager Respondents (In M.A. No. 55 of 2015) .........
1. Smt. Lilawati Devi
2. Bhim Deo Pandit
3. Munna Kumar
4. Smt. Dulari Devi
5. Deepan Pandit
6. Imtiyaz Alam
7. Tulsi Sao
8. Kamaluddin............ Respondents (In M.A. No. 93 of 2015) ......
Coram: Hon'ble Mr. Justice Ananda Sen
......
For the Appellants : Mr. Chetan K. Nagesh, Advocate
For ICICI Lombard Ins. Com. : Mr. Amit Kr. Das, Advocate Mrs. Swati Shalini, Advocate ......
10/29.06.2022 Both these appeals are taken up together.
2. Heard Mr. learned counsel for the claimants-appellants and Mrs. Swati Shalini, learned counsel for the Insurance Company in both these appeals.
3. The claimants have preferred M.A. No. 55 of 2015, praying therein for enhancement of the amount of compensation awarded by the District Judge-cum-Motor Accident Claim Tribunal, Court No. 1, Giridih in Title (M.V.) Suit No. 08 of 2011, whereas the Insurance Company has challenged the said award by filing M.A. No. 93 of 2015, on the ground that the deceased was a rooftop passenger therefore, the liability should be fastened upon the owner of the vehicle and not upon the insurer.
4. The deceased Shankar Pandit was travelling in a Bus bearing Registration No. JH02M 2350 on 10.08.2010, for the purpose of making Idols alongwith his fellow workers. It is stated that he was forced to sit in the rear seat where his other colleagues were sitting. When the Bus reached near Demotand, Hazaribagh due to rash and negligent driving by -2- the driver of the Bus, the door of the Bus suddenly opened and he fell down resulting in his injury and death.
5. An F.I.R. was registered being Hazaribagh (M) P.S. Case No. 573 of 2010. A claim application was filed which was contested by the driver, owner and the Insurance Company. The income of the deceased was challenged so was the manner of the accident. The Insurance Company has taken a plea that the deceased was travelling as a rooftop gratuitous passenger whereas the owner has to prove that there was no violation of the insurance policy.
6. On the basis of the evidences, seven issues were framed. Several documents were also exhibited on behalf of the contesting parties and oral evidence was recorded.
7. The Tribunal, after considering the evidences on record, came to a conclusion that the deceased was earning Rs.4500/-per month and thereafter, awarded an amount of Rs.6,17,500/- as compensation alongwith interest @ 9% Per Annum.
8. Challenging the aforesaid award and praying for enhancement, learned counsel appearing on behalf of the claimants-appellants in M.A. No. 55 of 2015, submitted that the Tribunal has wrongly assessed the monthly income of the deceased ignoring the oral evidence to the effect that the deceased was earning Rs.10,000/- per month. He further submits that admittedly, the future prospects of the deceased was not considered and no amount of compensation considering the future prospects was awarded. He also submits that under conventional head only Rs.10,000/- has been awarded, which should have been Rs.70,000/- in view of the judgment of the Hon'ble Supreme Court in the case of "National Insurance Company Limited - versus- Pranay Sethi & Others, reported in (2017) 16 SCC 680".
9. Counsel appearing on behalf of the Insurance Company opposes the prayer of enhancement and submitted that there is no cogent evidence to suggest that the deceased was earning Rs.10,000/- Per Month. Only a bald statement of some of the witnesses cannot be a ground to consider the income of the deceased to be Rs.10,000/- Per Month. She submits that the minimum wages of a skilled labourer at that relevant point of time was nearly Rs.100/- and if that be so, the Tribunal has assessed the monthly income much more, which is Rs.4500/-. She submits that from the evidence of the parties, it is quite clear that he was mere a labourer, who was going for work at Ranchi. She admits that compensation should be calculated in terms of the judgment rendered by the Hon'ble Supreme Court in the case of "National Insurance Company Limited - versus- Pranay Sethi & Others (Supra)".
-3-10. In the appeal, i.e. M.A. No. 93 of 2015, preferred by the Insurance Company, the only point, which has been argued, is that the deceased was a rooftop passenger, which is apparent from the statement made in the fardbeyan of the FIR, thus, the amount of compensation either should have been directed to be paid by the owner of the vehicle or at least "right of recovery" should have been granted to the Insurance Company.
11. To counter this, the counsel appearing on behalf of the claimants submits that there are two eyewitness to the said occurrence, who stated that the deceased was travelling inside the Bus. He submits that when the statement of the eyewitnesses are on record, the Fardbeyan will lose its relevance so far as the manner in which the occurrence had taken place, more so, when the author of the F.I.R. was not the eyewitness to the occurrence.
12. After hearing the parties, I find that two issues are to be adjudicated in these appeals;
1. Whether the claimants are entitled for enhancement considering his income to be Rs.10,000/- Per Month and/or they are entitled to receive additional amount of compensation on account of future prospects and under conventional head?
2. Whether the deceased was a rooftop passenger thus there was violation of the conditions of the insurance policy?
13. To decide issue no. 1, I have gone through the evidence led by the claimants. P.Ws.- 1, 2, 3 and 4 have stated that the deceased was earning Rs.10,000/- Per Month by making Idols. There is no more evidence save and except this. The minimum wage during the aforesaid period was nearly Rs.123/-. From the evidences of P.Ws. 3 & 4 it is quite clear that the deceased was travelling with them to make Idols. It is an admitted case that the deceased was travelling from his house, which is in the Village Manjhaladih, District- Giridih to Ranchi. This suggests that he was not having his own business at his own place, rather he was going to Ranchi to earn his livelihood. Thus, it can be said that though he had knowledge and skill of making Idols, but he was going to Ranchi to work for some one. Thus, it can be concluded that the deceased at least was a skilled labourer. The accident occurred in the year 2010. This Court thus, feels that the monthly income which has been assessed by the Tribunal commensurates with the daily wage of the skilled labourer.
Thus, I find no ground to interfere with the assessment so far as it relates to the monthly income of the deceased.
14. After going through the impugned judgment, I find that the compensation considering future prospects has not been awarded to the -4- claimants. Further, only Rs.10,000/- has been awarded under conventional head. In terms of the judgment of the Hon'ble Supreme Court in the case of "National Insurance Company Limited - versus- Pranay Sethi & Others (Supra)", the claimants are entitled for an enhancement on account of future prospects. Admittedly, the deceased was aged about 33 years and was self-employed. Thus, 40% enhancement is to be granted considering the future prospects. Further, multiplier of 15 has been applied, which should be 16 considering the age of the deceased. The claimants are also entitled for an additional amount of Rs.60,000/- under the conventional head, as in view of the judgment of the Hon'ble Supreme Court in the case of "National Insurance Company Limited - versus- Pranay Sethi & Others (Supra)", they are entitled for Rs.70,000/-. Now, if the amount of compensation is recalculated, it will be;
Sl. Description Calculation Amount
No.
1 Amount of compensation taking monthly
income of the deceased as Rs.4500/- with 4500x 12x16 8,64,000.00
multiplier of '16'
2 Amount of compensation after deducting
8,64,000 - 2,16,000 6,48,000.00
1/4th on account of personal expenses
3 Amount of compensation after adding 40%
6,48,000 + 2,59,200 9,07,200.00
on account of future prospect
4 Amount of compensation adding the amount
9,07,200+ 70000 9,77,200.00
of Rs.70,000/- under conventional head
15. The claimants have already received Rs.6,17,500/- as
compensation, the balance amount on the principal compensation would be Rs.3,59,700/-. This balance amount should be paid to the claimants within 10 weeks from today, which will carry an interest @ 7% per annum from the date of judgment and award, i.e. 22.11.2014, till the same is paid.
16. The second issue is in respect of violation of the policy as it is the case of the Insurance Company that the deceased was a rooftop passenger. To decide the aforesaid issue, I find that the FIR was lodged by the father of the deceased, who is also PW-2. In the FIR, it has been stated that he had received information that his son was travelling on the rooftop and suddenly fell down resulting in his death. This is the only material in support of the claim set forth by the Insurance Company. Admittedly, the author of the FIR is not the eyewitness, rather he received information from some source, but who was that source, has not been disclosed. No one came forward before the Tribunal as a witness to say that he had informed the aforesaid fact to the author of the FIR. Contra, there is evidence of P.Ws. 3 & 4, who were also travelling with the deceased. They stated that the deceased was traveling with them and was inside the Bus and he fell down when the door of the Bus suddenly opened when the Bus -5- was in a running state. The Hon'ble Supreme Court in the case of "National Insurance Company Limited- versus- Chamundeshwari and Others, reported in (2021) SCC Online SC 849" has held that in view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report.
17. Considering the said judgment, since there is oral evidence where two of the eyewitnesses narrated the manner in which the accident has occurred and the deceased died, narration in the Fardbeyan, cannot be given any weightage. Since, there is cogent and reliable eyewitnesses, who have stated that the deceased was inside the bus in question, I hold that the deceased was traveling inside the bus and was not a rooftop passenger.
18. Thus, from what has been held above, the appeal filed by the claimants, i.e. M.A. No. 55 of 2015 is allowed only to the extent mentioned in Para-14 & 15 above.
The appeal preferred by the Insurance Company, i.e. M.A. No. 93 of 2015, stands dismissed.
19. The statutory amount, deposited by the Insurance Company at the time of filing the appeal, i.e. M.A. No. 93 of 2015 should be refunded to the Insurance Company.
(Ananda Sen, J) Mukund/-cp.2