Sushila Devi v. Manohar Prasad Singh

Patna High Court MA No.240 of 2003 (11) dt.04-05-2013 2 the award they shall pay the amount of award to the applicant.

2. The claimant- appellant had come forward with a case seeking compensation worth Rs. 5,00,000/- against death of her son, namely, Tetar Mahalar who died on 24.11.2001 in an accident involding Dumpher Registration No. BR-17G- 0440 at the age of 18 years. The vehicle in question was under insurance coverage by the Oriental Insurance Company Ltd and for the accident Mehrama P.S. Case No. 174 of 2001 was also instituted. The deceased was a green grocer having daily income of minimum Rs. 100/- per day.

3. The owner and driver of the vehicle in question by filing the written statements contested the case and simultaneously a separate written statement was also filed by the Insurer.

4. On behalf of the claimant six witnesses were examined, besides producing Ext.1, a copy of the F.I.R, Ext.2 a copy of the Insurance paper and Ext. 3 a copy of the enquiry report. No witnesses were examined either by two sets of defendants- opposite parties and in the shape of Xerox copy of the driving license of the driver valid up to 31st August, 2003 is also on the record and the copy of the owner book are not exhibited. These are un-exhibited documents as is evident from the lower court’s record were filed only on 14th February, 2003 by the Patna High Court MA No.240 of 2003 (11) dt.04-05-2013 3 applicant with a petition to call for originals from the D.T.O. Godda.

5. While the Claim Tribunal considering the material available finding that no driving license etc. were produced by the owner or driver, hence liability to pay the compensation is upon the owner and further finding the age of the deceased 14 years having no income awarded a consolidated sum of Rs. 65,000/-, as stated above.

6. During course of hearing as it appears from the order dated 3rd January, 2011 instead of taking steps for notices upon the owner- respondent no.2 took the chance and opted to proceed for admission at the risk of expunging the name of owner respondent no.2 and is still ready to do so.

7. It is contested on behalf of the appellant that the owner- respondent no.2 by filing written statement and producing a copy of the driving license etc. has discharged his liability and in view of valid insurance itself the insurer indemnity the claim, moreover though in the claim application age of the deceased was written as 18 years, but during evidence the witnesses have stated the same at the relevant time 23 years, so taking the age of the deceased 23 years adopting principles of notional income and more amount could have been awarded to the claimant- appellant Patna High Court MA No.240 of 2003 (11) dt.04-05-2013 4 instead of nominal fixed amount. On the other hand, it is contended by learned counsel appearing on behalf of the Insurer that there is nothing to prove driver of the vehicle having valid license to drive dumpher. Therefore, the Claim Tribunal has rightly awarded the claim against owner exonerating the Insurer and moreover in absence of owner who appeared and contested the claim before Claim Tribunal, appeal is not maintainable.

8. It is not disputed that in the claim application age of the deceased is stated to be 18 years and during proceeding of the case before the Claim Tribunal C.W. 1 Kailash Mandal in his examination-in-chief submitted through affidavit the age 23 to 24 years. Simultaneously, C.W. 2 Balmiki Mandal stated 23 years, likewise C.W. 3 Prakash Mahaldar and C.W. 4 Parmanand Mandal, all these three witnesses stated age of the deceased 23 years. C.W. 6 Jammu Mahaldar stated 23 years, but without any specific basis to state the age contrary to stated by the claimant- mother and sole heir of the deceased who is unmarried and the claimant as C.W. 5 Shudhila Devi also contrary to her own pleading stated the age of the deceased 23 years, but in cross- examination in paragraph-7 she has stated that apart from the deceased’s son she also had daughter 18 years of the age at the time of her deposition on 1st February, 2003 and at the time of Patna High Court MA No.240 of 2003 (11) dt.04-05-2013 5 death of her husband she (daughter) was aged 5 years and at the same time the deceased was aged four years, that means had the deceased been arrived on the date of deposition of this witness he could have been aged 17 years since one year younger than his sister, consequently at the time of death in the year 2000 there appears no error in the finding of the Claim Tribunal that he was aged 14 years and consequently having no income.

9. There is consistent view of the Apex Court as well as other Hon’ble Courts in the case of death of minors specially school going having good prospect as pecuniary loss of Rs. 1,50,000/- and Rs. 75,000/- as non pecuniary loss fixed amount have been paid, as elaborately been discussed by this Court in a case between ‘Oriental Insurance Company Ltd. & Anr. Vs. Sri Shiv Shankar Singh & Ors’ passed in Miscellaneous Appeal No. 510 of 2011 vide order dated 09.04.2013, wherein, the various decisions of Hon’ble Apex Court have duly been considered and discussed, such as:- (i) “Sarla Verma (Smt.) and Others Vs. Dehi Transport Corporation and Another” reported in “(2009) 6 SCC 121”, (ii) “Amrit Bhanu Shali and Others. Vs. National Insurance Company Limited and others” reported in “(2012) 11 SCC 738”, (iii) “Laxmi Devi and Other Vs. Mohammad. Tabbar and Another” reported in “(2008) 12 SCC 165”, (iv) Patna High Court MA No.240 of 2003 (11) dt.04-05-2013 6 “R.K. Malik & Another Vs. Kiran Paul & Others” reported in “2009 ACJ (3) 1924 (S.C.)”, (v) “Lata Wadhwa and Others Vs. State of Bihar and Others” reported in “(2001) 8 SCC 197”, (vi) “M.S. Grewal and Another Vs. Deep Chand Sood and Others” reported in “(2001) 8 SCC 151”, (vii) “General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas (Mrs) & Others” reported in “(1994) 2 SCC 176”, (viii) “Sarla Dixit (Smt.) & Another Vs. Balwant Yadav & Others” reported in “(1996) 3 SCC 179” and (ix) “State of Haryana and Another Vs. Jasbir Kaur and Others” reported in “(2003) 7 SCC 484”, whereas, in case in hand the Claim Tribunal has awarded Rs. 65,000/- only. Admittedly, inspite of attaining the age of 14 years was doing nothing but as the claimant version a green grocer. Thus in case in hand, the award of Rs. (65,000/-+ 65,000/-) Rs. 1,30,000/- may be treated just and valid composite compensation for pecuniary and non pecuniary loss.

10. Learned counsel placed reliance upon decision of the Apex Court in the case of United India Insurance Company Ltd Vs. Smritikona Mistri & Ors. Reported in 2001 A.C.J. 520 and the decision of this Court in the case of Jageshwar Prasad Singh and Anr Vs. Mrs. Tara Linker Carrier Private Ltd & Anr, reported in 2010 (4) P.L.J.R. 28, but in both the cases the Patna High Court MA No.240 of 2003 (11) dt.04-05-2013 7 owner was made party and notices were duly served, inspite of that the owner of the vehicle did not choose to appear either before the Claim Tribunal or in the appeal, contrary to it in the case in hand the owner appeared before the Claim Tribunal and filed written statement inspite of award against him preferred no appeal, but the appellant whose claim was allowed with a liability to be compensated by the owner of the vehicle preferred this appeal and chooses to expunge the name of the owner. It is difficult to appreciate such act on behalf of the appellant who could have realize the amount awarded by now during execution proceeding to be preferred before the Claim Tribunal, but instead of doing so the appellant is pressing this appeal and even expunged the name of the owner and if at all the order of the Claim Tribunal remain intact he is only sufferer.

11. The decision reported in 2006 (1) PLJR 512 Patna, 2003 (2) PLJR 169 SC, 2009 (10) SCC 648, 2001 (3) PLJR 74 SC and 2005 (4) BBCJ 52 Patna since are on different footings and related to the case wherein the deceased was major and all the parties concerned, i.e. owner, insurer and claimant were well represented, hence not applicable in the case in hand. Likewise the decision in 2009 (3) PLJR 23 and 2012 AIR SCW 4330.

12. This is most unfortunate fact in the case in hand Patna High Court MA No.240 of 2003 (11) dt.04-05-2013 8 is that Xerox copies of the relevant documents were produced while evidence was going on and if the claimant appellant herself filed a petition to get its genuineness verified by calling for its originals from the D.T.O. Godda, no opportunity was given to the insurer to verify the genuineness of such documents and taking into consideration the relevant materials inspite of award being granted in favour of the appellant to be paid by the owner preferring to file appeal by real person. This appeal has been preferred by the appellant and even after preferring the appeal the owner- respondent no.2, the appellant may perhaps under improper legal advice took risk of expungement of his name.

13. In such circumstances, if any modification in the award either enhancement or to the extent of shifting initial liability to pay the amount of award upon insurer with a liberty to exercise right of recovery from the owner is done it may also be deemed contrary to the interest of owner and done without giving any opportunity of hearing to him. Had the appellant taken steps for notice upon the owner- respondent no.2 even by substituted service, if required, position could have been different, but in absence thereof without giving any opportunity to the owner- respondent no.2 any modification in the award shall be contrary to the principles of natural justice which is not at all permissible. Patna High Court MA No.240 of 2003 (11) dt.04-05-2013 9

14. Hence, the appeal is hereby dismissed at this stage on contest against Insurer, but ex-parte against others. However, there is no order as to cost. Patna High Court. Dated-8th May, 2013. Abhay/- (Akhilesh Chandra, J)