…..... Chola MS General Insurance Co. Ltd. … v. Surja Devi & Others
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction) M.A. No. 60 of 2018 …..... Chola MS General Insurance Co. Ltd. …. ..... Appellant Versus Surja Devi & Others …. ..... Respondents WITH M.A. No. 286 of 2016 …..... The Branch Manager, M/s Cholamandalam MS General Insurance Co. Ltd. …. ..... Appellant Versus Monika Singh & Others …. ..... Respondents WITH M.A. No. 350 of 2017 …..... The Branch Manager, M/s Cholamandalam MS General Insurance Co. Ltd. …. ..... Appellant Versus Ishrat Begum & Others …. ..... Respondents WITH M.A. No. 352 of 2017 …..... The Branch Manager, Cholamandalam MS General Insurance Co. Ltd. Versus …. ..... Appellant Most. Manorma Devi & Others …. ..... Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellant …......... : Mr. Ashutosh Anand, Advocate. [In all cases] For the Resp./Claimants : Mr. Prabhas Ch. Sinha, Advocate. [In M.A. No. 286/16, M.A. No. 350/17 & M.A. No. 352/17] For the Resp./Owner : Mr. Rajesh Kr. Mahtha, Advocate. [In M.A. No. 286/16, M.A. No. 350/17 & M.A. No. 352/17] For the Resp. Nos. 2(a) & 2(b) : Mr. Pratik Sen, Advocate. [M.A. No. 350 of 2017] The matters are being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that the audio and video qualities are good. 11/17.04.2023. ........ Heard, learned counsel for the appellant - M/s Cholamandalam MS General Insurance Co. Ltd., Mr. Ashutosh Anand, learned counsel for the respondents/claimants, Mr. Prabhas Chandra Sinha (In M.A. No. 286/2016, M.A. No. 350/2017 & M.A. No. 352/2017), 2 learned counsel for the respondent / owner, Mr. Rajesh Kumar Mahtha (In M.A. No. 286/2016, M.A. No. 350/2017 and M.A. No. 352/2017) and learned counsel for the respondent nos. 2(a) & 2(b) in M.A. No. 350/2017, Mr. Pratik Sen. I.A. No. 357/2018 in M.A. No. 286/2016, I.A. No. 518/2019 in M.A. No. 350/2017 and I.A. No. 517/2019 in M.A. No. 352/2017. Learned counsel for the appellant, Mr. Ashutosh Anand has submitted, that I.A. No. 357/2018 has been preferred in M.A. No. 286/2016 arising out of Claim Case No. 150/2011 for condoning the delay of 152 days in preferring the instant miscellaneous appeal. Learned counsel for the appellant, Mr. Ashutosh Anand has further submitted, that I.A. No. 518/2019 has been preferred in M.A. No. 350/2017 arising out of Claim Case No. 152/2011 for condoning the delay of 14 days in preferring the instant miscellaneous appeal. Learned counsel for the appellant, Mr. Ashutosh Anand has further submitted, that I.A. No. 517/2019 has been preferred in M.A. No. 352/2017 arising out of Claim Case No. 151/2011 for condoning the delay of 12 days in preferring the instant miscellaneous appeal. Learned counsel for the appellant has further submitted, that the claimants have not filed any objection nor they have filed any counter affidavit, as such, the delay may be condoned. Learned counsel for the claimants, Mr. Prabhash Ch. Sinha and Mr. Pratik Sen have admitted that they have not filed any objection or counter affidavit. Considering the rival submissions of the parties and looking into facts and circumstances of the cases, this Court feels it proper to condone the delay. Accordingly, I.A. No. 357/2018 in M.A. No. 286/2016, I.A. No. 518/2019 in M.A. No. 350/2017 and I.A. No. 517/2019 in M.A. No. 352/2017 filed for condoning the delay are hereby allowed. I.A. No. 6917/2022 Learned counsel, Mr. Prabhas Ch. Sinha has submitted, that during pendency of M.A. No. 350/2017, respondent no. 2 namely, Md. Illias, son of Md. Faruque has died and his wife namely, Nagma Tarannum and his son namely, Md. Annas have already been 3 substituted as respondent nos. 2(a) & 2(b) vide I.A. No. 3692/2022 in terms of order dated 10.05.2022 passed by the Coordinate Bench of this Court. Learned counsel, Mr. Prabhas Ch. Sinha has further submitted, that the daughter of Md. Faruque has not been added as party, for which I.A. No. 6917/2022 has been preferred and is pending before this Court, as such, the same may be allowed. This Court sitting in miscellaneous appeal is not inclined to look into the succession matter of the legal heirs of the deceased. They may raise this question before the competent court of law, if so require.
Decision
Accordingly, I.A. No. 6917/2022 is disposed of. M.A. No. 60/2018, M.A. No. 286/2016, M.A. No. 350/2017 & M.A. No. 352/2017 Learned counsel for the appellant, Mr. Ashutosh Anand has submitted, that five persons lost their lives in an accident and out of which three persons namely, Uday Narayan Singh, Staya Narain Rajwar and Shailendra Kumar Rakesh died on the spot, one person namely, Rajeev Kumar died while he was being taken for treatment and one person namely, Mohd. Farooq died during treatment at Apollo Hospital, Ranchi and as such, all the cases may be taken together as the same have been preferred by insurer of the offending vehicle Scorpio bearing registration no. JH-02N-9434. Learned counsel for the appellant has assailed the impugned award on the ground that the learned Tribunal has not considered the evidence of CW-3, Monika Singh in Claim Case No. 150/2011 (M.A. No. 286/2016), where she has admitted during cross-examination that Scorpio was standing and an unknown truck dashed and fled away. Learned counsel for the appellant has submitted, that the entire liability fastened upon the Insurer of the offending Scorpio Vehicle is bad in law, as the learned Tribunal has not considered the contributory negligence. Learned counsel for the appellant has further submitted, that the owner of the offending Scorpio Vehicle has violated the terms 4 and conditions of the Insurance Policy by using the private vehicle as commercial vehicle. Learned counsel for the appellant has further submitted, that there is no provision of grant of penal interest, though the learned Tribunal has granted penal interest @ 9% per annum, in case the awarded amount has not been indemnified within 30 days from the date of award. Learned counsel for the appellant has further submitted, that unnecessary component of the salary has been considered as income of the deceased by the learned Tribunal and thus granted compensation on the higher side, which may be reviewed. Learned counsel for the appellant has further submitted, that apportionment of awarded amount is to be done amongst the legal heirs, so that the Insurance Company may not face the legal impediment in future. Learned counsels for the claimants, Mr. Prabhash Chandra Sinha and Mr. Pratik Sen have univocally opposed the prayer of the appellant on the ground that the judgment is not based upon the perverse finding as alleged by the appellant relying upon the evidence of C.W.-3, Monika Singh. Learned counsels for the claimants have further submitted, that issue of contributory negligence, which has not been an issue before the learned Tribunal as the same has not been taken in the written statement nor framed by the learned Tribunal, cannot be raised before this Court of appeal. They have further submitted that the issue with regard to use of private vehicle as commercial vehicle has not been framed by the learned Tribunal. Thus, it is misconception on the part of the appellant that any issue can be raised before the appellate court without having raised the same before the learned Tribunal. Learned counsels for the claimants have further submitted, that the salary component, which is being agitated before this Court, has never been agitated before the learned Tribunal and thus, this Court may preclude from looking into the same, as those component are definitely loss to the dependents of the deceased, as had the deceased 5 survived today, those component would have been paid to the deceased, as such, these issues cannot be raised before the appellate court. Learned counsels for the claimants have submitted, that all the pay slips have been marked without objection, either as X/6 or X/5 or X/2 or X/5 before the learned Tribunal in their respective claim cases, as such the Insurance Company cannot agitate the same before this Court as those are admittedly loss to the dependents of the deceased and therefore, this Court may not look into the same. Learned counsels for the claimants have submitted, that though they have not preferred any appeal for enhancement of the award or any cross-objection before this Court within statutory time, but definitely under the conventional head, less amount has been paid and future prospect have also not been considered. If those amount would have been considered, the awarded amount shall definitely enhance. Learned counsels for the claimants have relied upon the judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639. Para-6 of the said judgment may profitably be quoted hereunder:- 6. We are of the view that the High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of the future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs 23,134 being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future 6 prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross- objections. Upon which, learned counsel for the appellant, Mr. Ashutosh Anand has submitted, that in case the compensation amount would go high, then also in appeals preferred by the Insurance Company, the same cannot be enhanced. The ultimate would be that the appeals preferred by the Insurance Company would be dismissed. Learned counsel for the appellant has relied upon para-8 of the judgment passed by the Apex Court in the case of Ranjana Prakash (Supra). Para-8 of the said judgment may profitably be quoted hereunder:- 8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation. Learned counsel for the owner, Mr. Rajesh Kumar Mahtha has submitted that no contravention of the Insurance Policy was pointed out against the owner of the vehicle by the appellant, as such, he has nothing to say in these appeals. After hearing learned counsel for the parties and on the basis of materials available on record as well as on perusal of awards, it 7 appears that the pleas, which are being relied by the learned counsel for the appellant-M/s Cholamandlum MS General Insurance Company Limited with regard to evidence of C.W.-3, Monika Singh or contributory negligence or use of private insured vehicle as a commercial vehicle were not taken before the learned Tribunal nor in the written statement nor issue was framed with respect to the same by the learned Tribunal. Only one line statement during cross- examination of Monika Singh will not be a ground to set aside the judgment passed by learned Tribunal. Those are beyond pleading and thus no help to the appellant, which are hereby rejected, as no contrary evidence has been brought on record by the Insurance Company and the consistent case of the claimants is that on 10.07.2011, Shailendra Kumar Rakesh, Uday Narayan Singh, Satya Narain Rajwar, Rajeev Kumar and Mohd. Farooq were travelling in Scorpio vehicle bearing registration no. JH-02N-9434, which hit a standing truck at G.T. Road under Chouparan Police Station, due to which, Uday Narayan Singh, Satya Narain Rajwar and Shailender Kumar Rakesh lost their lives on the spot, whereas one injured namely, Rajeev Kumar lost his life while he was being taken for treatment and another injured namely, Mohd. Farooq succumbed to his injury at Apollo Hospital, Ranchi on the next day and thus, the police lodged an FIR bearing No. 65/2011 dated 10.07.2011 under Sections 279, 337, 304-A of I.P.C. Further case of the claimants is that deceased were the employees of the TISCO (Tata Iron and Steel Company Ltd.) and their salary certificate of month of June, 2011 have been brought on record, which have been marked without objection. It appears that owner of the vehicle has also appeared before this Court. He has filed his document. Appellant has no grievance against the owner of the vehicle. Thus, this Court examine the component of the salary as agitated by learned counsel for the appellant, Mr. Ashutosh Anand. It appears that the components of the salary are financial benefits given to its employee. The death of the employee definitely cause financial loss to the component of the salary to the dependents 8 of employee after his death. As per the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (Para-59.2), the tax component can only be deducted from gross salary, nothing more can be deducted. Thus, this argument is bad in law. It is true that future prospect has not been considered and less amount has been paid under the conventional head. The conventional head is uniform for every type of claim case in case of death to be Rs. 70,000/- i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses and Rs. 15,000/- for loss of estate in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (para-59.8). It is also true that future prospect of the permanent employee is to be considered as per para-59.4 of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra), but in absence of any appeal or Cross-objection by the Claimants, this Court has no power to consider the same in view of para-8 of the judgment passed by the Apex Court in the case of Ranjana Prakash (Supra), where it has been held that in case of appeal preferred by the Insurance Company and not preferred by the Claimants, if the amount comes on higher side, then instead of enhancing the compensation amount, the appeal preferred by the Insurance Company is bound to be dismissed. So far penal interest @ 9% per annum to be paid on the awarded amount from the date of award, in case the awarded amount along with interest @6% per annum from the date of settlement of issue in different claim cases is not paid within 30 days of the award is concerned, this Court finds good ground of the appellant and accordingly, this Court interferes to make it a consistent for all the Tribunals. There is no provision under the Motor Vehicles Act to award penal interest which is under the Employees' Compensation Act and that too as penalty. In the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12) SCC 208 (Para-14), the Apex Court has quantified the rate of interest considering the rate of interest prevailing in the nationalized bank 9 during a certain period to be 7.5% uniformly. This Court also follows the same and this Court is of the opinion that two interest cannot be applicable on awarded amount, one as interest and another as penal interest, rather the awarded amount shall be paid with interest @ 7.5%. The question arises why the interest shall be paid from the date of settlement of issue, when no such plea was taken by the Insurance Company that it was laches on the part of the claimants in pursuing the claim case. Since there is no such evidence on the record, this Court grants the same from the date of filing of the claim application till the date of indemnifying the award. Accordingly, this Court grants interest on awarded amount decided by the learned Tribunal in each claim case to be 7.5% from the date of institution of the claim application till the date of indemnifying the award. This Court further directs the claimants to furnish their bank account number to the counsel for the Insurance Company or to the learned Tribunal or to the learned Executing Court within a period of two weeks, so that Insurance Company, after calculating the interest @ 7.5% on the awarded amount, as granted by the learned Tribunal, from the date of filing of the claim application till the date of indemnifying the award, shall remit the same in bank accounts of the claimants at the nationalized bank or may deposit the same before the learned Tribunal or the learned Executing Court. Learned Tribunal and the learned Executing Court shall pay the same in the bank accounts of the claimants. The amount, which has already been indemnified, shall be deducted and balance amount shall be paid within a period of 60 days in the nationalized bank account of the claimants. However, there is some legal question with regard to the legal heirs of Mohd. Farooq. Learned Tribunal shall consider the same or seek certificate of the Succession Court in that respect, if required in case of Mohd. Farooq. Accordingly, all the four miscellaneous appeals are disposed of. The interim order dated 12.02.2018 passed in I.A. No. 356/2018 in M.A. No. 286/2016 is hereby vacated. 10 Since the miscellaneous appeals are already disposed of, I.A. No. 5407/2020 in M.A. No. 352/2017 stands closed. Before parting with the judgment, it appears to this Court that against the impugned award of all four claim cases, four appeals have been preferred before this Court, but none of the parties has assist this Court with regard to the claim of the deceased Rajeev Kumar, who has also lost his life while he was being taken for treatment. The Principal District Judge, Hazaribagh as well as the Secretary, District Legal Services Authority, Hazaribagh are directed to ensure that all the victims of the motor accident may prefer their claim application before the learned Tribunal and if there is deficiency in the same, they must enquire whether they require any legal assistance or not. Since the matters belong to Chouparan in the district of Hazaribagh, the Principal District Judge, Hazaribagh and the Secretary, District Legal Services Authority, Hazaribagh shall look into the same and shall take legal recourse in the matter. The statutory amount deposited by the Insurance Company at the time of preferring these appeals shall be remitted to the learned Tribunal. The learned Tribunal shall enquire into the matter, if it is found to be excess after indemnifying the award to the claimants, the same shall be returned to the Insurance Company, otherwise the same shall be part of the award. Let the L.C.Rs. be sent down. Let a copy of order be communicated to the Principal District Judge, Hazaribagh as well as the Secretary, District Legal Services Authority, Hazaribagh and the Motor Vehicle Accident Claim Tribunal, Hazaribagh through FAX / e-mail. Sunil/- (Kailash Prasad Deo, J.)