The Oriental Insurance Company Limited, Dumka Branch, Court Compound, Dumka, P.O. & P.S. Dumka v. 1. Most. Dulari Devi, Wife of Late Narayan Thakur
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Misc. Appeal No. 86 of 2016 The Oriental Insurance Company Limited, Dumka Branch, Court Compound, Dumka, P.O. & P.S. Dumka (Town), District-Dumka, respresented through its legal cell, Circular Road, Ranchi, P.O. & P.S. Lalpur, District-Ranchi ...... …... Appellant/Defendant No. 3/ Opp. Party No. 3 Versus 1. Most. Dulari Devi, Wife of Late Narayan Thakur (deleted vide order dated 20.01.2023.) 2. Robin Thakur, Son of Late Narayan Thakur. (deleted vide order dated 20.01.2023.) Both resident of Village-Jogia Dhoba, P.O. & P.S. Ramgarh, District- Dumka (Jharkhand) 3. Most. Putul Devi, D/o Late Narayan Thakur, Wife of Late Jay Ram Thakur, Resident of Village-Koraiya, P.O. Koraiya, P.S. Dumka(M), District-Dumka. 4. Babli Devi, D/o Late Narayan Thakur, Wife of Sri Pradip Bhandari, Resident of Village-Barmasia, P.O. Barmasia, P.S. Shikaripara, District- …… ……. Respondents/Plaintiffs/Claimants Dumka 5. Shankar Prasad Sah, S/o Bhola Prasad Sah, Resident of Village- Baniyara, Mahadeogarh, P.O. Ramgarh, P.S. Ramgarh, District-Dumka 6. Sahabuddin Ansari, S/o Muslim Ansari, Resident of Village-Kurma, Kushiyari, P.S. Hansdiha, District-Dumka …. Respondents/Defendants/Opp. Parties ------- CORAM: HON’BLE MR. JUSTICE SUBHASH CHAND -------
Legal Reasoning
For the Appellant For the Resp. Nos. 1-4 For the Resp. Nos. 5 & 6 : Mr. Kaushal Kishor Mishra, Advocate : Mr. Manish, Advocate : Mr. Saibal Kumar Laik, Advocate ------- C.A.V. on: 19/11/2024 Pronounced on: 02/12/2024 Per: Subhash Chand, J. J U D G M E N T 1. Instant appeal has been preferred on behalf of the appellant Oriental Insurance Company Ltd, dissatisfied with the Award dated 17.09.2015 passed by the Motor Accident Claim Tribunal No. III cum District and Addl. Sessions Judge III, Dumka, in Motor Accident Claims Case No. 14 of 2012, whereby the learned Tribunal has awarded the amount of Rs. 9,99,000/- along with simple interest thereon @ 12% per annum from the date of filing the claim petition i.e. 30th March, 2012, till the date of payment and realization of the said compensation amount. The said amount was directed to be paid within 45 days, in failure the Insurance Company was directed to pay the penal interest @ 18% per annum to the claimant up to the date of actual payment. 2. The brief facts leading to this appeal are that the claim petition was filed on behalf of the claimants Smt. Dulari Devi and three others under Section 166 of Motor Vehicles Act, with these averments that on 19.01.2012, at 06:00 am, the deceased Narayan Thakur was going to Tea stall at Ragarh market walking by the side of Ramgarh-Godda pucca road. When he reached in front of house of Devi Singh, the offending Ranjeet Travels Mini bus bearing Registration No. JH 04C 6576 came driven by its driver rashly and negligently and dashed to the deceased Narayan Thakur and further dashed and damaged one Qualis vehicle no. JH 05B 8183 of Diwakar Mandal. On account of sustaining injuries, Narayan Thakur died at the spot. The driver of the offending mini bus was also nabbed by the public at the spot. Ramgarh P.S. Case No. 9 of 2012 was registered for the offence under Section 279, 304A and 427 of Indian Penal Code against the driver Sahabuddin Ansari of the offending vehicle. The charge-sheet was also filed against him by the Investigating Officer after having concluded the investigation. It is further stated that the deceased Narayan Thakur was a barber and was earning Rs. 6,000/- per month. After his death, he left his legal heirs, his widow and one son Robin Thakur and two daughters Putul Devi and Babli Devi. The deceased was 50 years old on the date of accident. - 2 - Misc. Appeal No. 86 of 2016 As such, the compensation for the death was claimed by the claimants. 3. On behalf of the O.P. Nos. 1 and 2 (Respondent nos. 5 and 6 respectively herein), the owner and driver of the offending vehicle filed the written statement with these averments that the offending vehicle was insured by the O.P. No. 3 Oriental Insurance Company Ltd. And the insurance policy was valid and effective on the date of accident. The driver was driving the vehicle with a valid and effective driving license. If any liability is fastened, for the same, Insurance Company is liable. However, the rash and negligence in driving the vehicle was denied. 4. On behalf of the O.P. No. 3, Oriental Insurance Company Ltd. in its written statement denied the alleged accident and also the income and age of deceased. It is also stated in case of breach of conditions of insurance policy, the Insurance Company is not liable to pay the compensation and it was also pleaded that Insurance Company reserves its rights to contest the claim petition on all those grounds which are available to the owner of the vehicle in view of the Section 170 of Motor Vehicles Act. The learned Tribunal framed the six issues. “Issue No. 1:- Whether the present claim application is maintainable in its present form and had the claimant have valid cause of action for filing the same? Issue No. 2:-Whether the deceased Narayan Thakur died in Motor vehicle accident caused due to use of offending Mini Bus bearing Registration No. JH 04C 6576? Issue No. 3:-Whether the offending Mini Bus bearing Registration No. JH 04C 6576 belongs to OP No. 1 having valid document to ply the same and its driver OP. No. 2 Sahabuddin Ansari having valid licence to drive the same? Issue No. 4:-Whether the claimants is/are entitled for compensation as claimed in the claim application along with other expenses caused to them? Issue No. 5:-Whether the said offending vehicle Mini Bus bearing Registration No. JH 04C 6576 was insured with OP. No. 3 Oriental Insurance Company at the time of accidental death of Narayan Thakur? Issue No. 6:-Whether the claimants is/are entitled for any other or further reliefs? - 3 - Misc. Appeal No. 86 of 2016 5. On behalf of the claimant in oral evidence examined P.W. 1, Dulari Devi, P.W. 2 Indradev Kumar, eye-witness of the occurrence, P.W.3, Diwakar Mandal, the scribe of the FIR and in documentary evidence filed following Exhibits 1 to 8. Exhibit 1- Photocopy of Insurance Policy No. 322401/31/2011/5523 valid from 09.02.2011 to midnight of 08.02.2012. Exhibit 2- Driving licence No. 1311/07/Godda valid up to 30.01.2014. Exhibit 3- Registration/Owner Book of offending Bus No. JH 04C 6576 Exhibit 4- Postmortem Report Exhibit 5- Certified copy of charge-sheet of Ramgarh PS Case No. 9/2012 Exhibit 6- Certified copy of order-sheet for taking cognizance dated 29.03.2012 of Ramgarh PS Case No. 09/2012 Exhibit 7- Certified copy of FIR of Ramgarh PS Case No. 9/2012 Exhibit 8- Original Heir-ship Certificate 78 dated 10.02.2012. 6. The learned Tribunal after hearing the rival submission of the learned counsel for the parties, passed the impugned Award on 17.09.2015 as stated hereinabove. 7. Aggrieved from the impugned Award dated 17.09.2015, the appellant Oriental Insurance Company has preferred this appeal assailing the impugned Award on the ground that the learned Tribunal has awarded under the conventional head excessive amount. The same is not permissible in the eye of law. Further, the learned Tribunal has awarded the rate of interest @ 12% per annum, the same is bad in the eye of law and further, the penal interest @ 18% has been awarded which cannot be permissible. In view of the above, it is submitted that the said amount of compensation should be - 4 - Misc. Appeal No. 86 of 2016 modified. 8. Learned counsel for the respondent/claimants opposed the contentions made by learned counsel for the appellant and submitted that the learned Tribunal has awarded the amount of 1,00,000/- Rs. for loss of love and affection each total. Rs. 2,00,000/- for the love and affection for both the daughter claimants, Rs. 100,000/- to the widow and Rs. 1,00,000/- for the mother and funeral expenses Rs. 25,000/-. Relying upon the judgment of Hon’ble Apex Court Vimal Kanwar and Ors. vs. Kishore Dan and Ors. reported in 2013 (3) JCR (SC) (197). So far as the rate of interest is concerned, the same is also rightly awarded by the learned Tribunal, on these grounds, the impugned Award needs no interference. It is also further submitted that if for the sake of argument under the conventional head, the amount awarded is found to be excessive, the deceased was not awarded the compensation for the future prospect which the claimants were entitled. 8.1 From the perusal of the impugned Award, it is found, the learned Tribunal has awarded the amount under the conventional head to the claimants relying upon the judgment of Hon’ble Apex Court in the case of Vimal Kanwar and Ors. vs. Kishore Dan and Ors. reported in 2013 (3) JCR (SC) 197, the same should not have been relied upon by the learned Tribunal because the Hon’ble Apex Court has awarded the said amount under the conventional head by exercising the power under Article 142 of the Constitution of India. Therefore, the impugned Award on this point needs intervention and under the conventional head, the amount which will be payable to the claimants, in view of the judgment of Hon’ble Apex Court, National Insurance Company Ltd. vs. Pranay Sethi and Ors. (2017) 16 SCC 680, Rs. 70,000/- + the increase of 10% after lapse of three years as in - 5 - Misc. Appeal No. 86 of 2016 this case, the accident took place on 19.01.2012. As such the amount under the conventional head would be payable lump sum Rs. 1,00,000/-. 8.2 So far as the rate of interest is concerned, the same has been awarded by the learned Tribunal @ 12% per annum. It also needs to be modified and the rate of interest should be @ 7.5 % per annum. In view of the latest decision of Hon’ble Apex Court in National Insurance Company Ltd. vs. Mannat Johal and Ors., 2019 (2) TAC 705 (SC) wherein the Hon’ble Apex Court has held as under. “13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high, a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court.” 8.3 So far as the penal interest of 18% is concerned, the same also needs interference, reason being that if the said amount of Award along with interest is not paid by the Insurance Company within 45 days from the date of passing Award, for the same, execution proceeding may be initiated by the claimants under Section 174 of the Motor Vehicles Act. Therefore, the penal interest of 18% per annum is hereby struck off from the impugned Award. 8.4 It is found from the impugned Award that the learned Tribunal while passing the impugned Award has assessed the income of deceased as Rs. 6,000/- monthly. The annual income has been assessed to be Rs. 72,000/-. On this income, the learned Tribunal has not added the future prospect. From the evidence on record, it is found that the deceased was 50 years old on the date of accident. 8.5 In view of the Judgment of Hon’ble Apex Court, National Insurance - 6 - Misc. Appeal No. 86 of 2016 Company Ltd. vs. Pranay Sethi and Ors., 2017 0 Supreme (SC) 1050. The deceased who was self-employed barber an addition of 10% in his income would be added for future prospects taking into consideration the age of deceased being between 50 to 60 years. As such in the annual income of the deceased which was computed by the learned Tribunal to be Rs. 72,000/- , i.e. Rs. 7,200/- would be added towards future prospects and total annual income would be 79,200. As such the modified amount of compensation is computed as under. 1. Income=Rs. 6,000/- per month 2. Annual income = Rs, 6,000/- x 12=Rs. 72,000/-. 3. Percentage towards future prospect, 10%, i.e. Rs. 7,200/-. 4. Total annual income is Rs. 79,200 4. Income after one third deduction i.e. Rs. 24,000/-, for personal expenses, it will be Rs. 55,200. And the multiplier of 13 would be applicable as the deceased was 50 years old, then the total amount of compensation would be 55,200 x 13 = Rs. 7,17,600/-. Therefore, loss of dependency = Rs. 7,17,600/- 5. Amount under the conventional head = 100,000. 6. Total amount of compensation will be Rs. 8,17,600. 9. As such this appeal is allowed. The impugned Award passed by the learned Tribunal is modified and to the extent that the total amount of compensation which would be payable to the claimants would be Rs. 8,17,600/- and 7.5% interest would be payable thereon from the date of filing the claim petition i.e. 30th March, 2012 till the date of actual payment. The aforesaid amount be deposited by the appellant within 45 days of the judgment in this appeal. 10. The statutory amount if any paid by the appellant be remitted back to - 7 - Misc. Appeal No. 86 of 2016 concerned Tribunal. Jharkhand High Court, Ranchi Dated: the December , 2024, Rashmi/- A.F.R. (Subhash Chand, J.) - 8 - Misc. Appeal No. 86 of 2016