IFFCO-TOKIO General Insurance Co. Ltd., Office at S-11 1st Floor, Bumbra Enclave v. Minor Pinki Gudwa

------ : Mr. Bibhash Sinha, Advocate : Mr. Ankit Vishal, Advocate : Mr. Atanu Banerjee, Advocate : Mr. Suman Kr. Ghosh, Advocate P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- 2 M.A. No. 166 of 2020

5. Heard the parties. This miscellaneous appeal is directed against the judgment and award dated 17.12.2019 passed by the District Judge-IV-cum-Presiding Officer-Motor Accidents Claims Tribunal, West Singbhum at Chaibasa in Motor Accident Claim Case No. 29 of 2018 by which the learned Tribunal under Section 163A of Motor Vehicle Act, 1988 has awarded a total compensation of Rs.6,46,000/- along with simple interest at the rate of 6% per annum to the claimants. No one turns up on behalf of the respondent no.8 in- spite of repeated calls though notice has been validly served upon him. Hence, this appeal is heard ex-parte upon the respondent no.8. Vide order dated 27.03.2023, the appeal abated against the respondent nos. 1 and 7 but since the other claimants are there being respondent nos. 2 to 6, hence, this appeal has not abated as a whole. The brief fact of the case is that Sado Gudwa @ Vinod Gudwa while working as a driver of the tractor-trailer bearing registration no. JH-06K-1166 and JH-06K-2442 respectively which were used in a brick kiln, the wheels of the tractor became jammed due to soft soil on the road and the tractor got tilled causing grievous injury to Sado Gudwa @ Vinod Gudwa and he ultimately succumbed to such injuries at Sub-Divisional Hospital, Chakradharpur; during the course of his treatment there. 3 M.A. No. 166 of 2020

6. Police registered a case in connection with the said

8. accident. It is stated that the deceased- Sado Gudwa @ Vinod Gudwa was aged about 35 years at the time of occurrence and was having a valid driving licence since 2007. It was further stated that Sado Gudwa @ Vinod Gudwa used to earn Rs.3,300/- per month as salary and Rs.50/- per day as maintenance allowance. The opposite party no.1-IIFCO-TOKIO General Insurance Company Limited in its written show-cause pleaded that the owner of the vehicle has violated the terms and condition of the insurance policy thereby, admitted the insurance policy but did not produce the said insurance policy. The opposite party no.2-owner of the vehicle challenged the maintainability of the claim application on various technical grounds and pleaded that the driver was negligent in driving the vehicle which resulted in the accident. The opposite party no.2 further pleaded that the vehicle was insured with the opposite party no.1 and the opposite party no.2 has not violated any of the terms and condition of the insurance policy. Therefore, the offending vehicle of the opposite party no.2 having been validly insured, the opposite party no.1 is liable to pay the compensation awarded case by way of indemnification.

9. On the basis of the rival pleading of the parties, the 4 M.A. No. 166 of 2020 learned Tribunal framed the following five issues:- (I) Whether the applicants have any cause of action or the case is maintainable in its present form? (II) Whether the deceased Sado Gudwa @ Vinod Gudwa died in the motor vehicle accident? (III) Whether the accident took place, arising out of use of vehicle (Tractor) bearing Registration No. JH-06K- 1166 and Trailer No. JH-06K-2442? (IV) Whether the owner of the offending vehicle (O.P. No.2) has violated any terms and conditions of Insurance Policy and Insurance Company (O.P. No.1) is not liable to indemnify the insured? entitled the applicants are to get compensation amount as claimed, if so, up to what extent and from whom? (V) Whether

11. In support of their case, the claimants examined two witnesses and proved documents which have been marked Ext. 1 to 12 but the opposite parties did not examine any witnesses nor adduced any evidence whatsoever. The learned Tribunal first took up issue nos. (II) and (III) together and after considering the evidence in the record came to the conclusion that Sado Gudwa @ Vinod Gudwa died in the motor vehicle accident arising of the use of offending vehicle and decided the issue nos. (II) and (III) in favour of the claimants. The learned Tribunal next took up issue no. (IV) and considering the evidence in the record that since the claim of compensation was filed under Section 163A of the Motor Vehicles Act so, the negligence if any of the deceased driver is of no consequence so far as the claim of compensation under no fault liability is concerned and held that there is no violation of any terms and condition of the insurance policy hence, the opposite party no.1 was liable to pay the compensation by way of indemnification of 5 M.A. No. 166 of 2020 the opposite party no.2-owner of the vehicle. The learned Tribunal next took up issue no. (V) and assessed the age of the deceased to be 40 years on the date of accident on the basis of Aadhar Card and driving licence in which the date of birth of the deceased has been mentioned as 01.01.1983. The learned Tribunal assessed the income of the deceased to be 3,000/- per month. Adding 25% of the income towards future prospects and deducted 1/5th of the income towards personal living expenses and applied the multiplier 16 and also added Rs.70,000/- under conventional head and arrived at a total compensation of Rs.6,46,000/-. The learned Tribunal lastly took up issue no. (I) and held that the claimants has valid cause of action and the claim application is maintainable and went on to pass the said judgment and award.

12. Mr. Bibhash Sinha, learned counsel for the appellant submits that the learned Tribunal has failed to consider that the accident took place because of negligence of the deceased hence, the claimants are not entitled to any compensation. It is next submitted by Mr. Sinha that the learned Tribunal failed to consider that the opposite party no.2-owner of the vehicle failed to produce vehicular documents including permit and as the owner of the vehicle has violated the terms and condition of the insurance policy, therefore, the insurance company is entitled for an order of pay and recovery. It is then submitted by Mr. Sinha that in the 6 M.A. No. 166 of 2020 absence of any finding of the learned Tribunal that the delay has occurred on account of non-cooperation of the part of the insurance company, the learned Tribunal ought not to have awarded interest at the rate of 9% per annum. It is also submitted by Mr. Sinha that the learned Tribunal erred by adding 25% of the established income of the deceased as future prospects in an application under Section 163A of Motor Vehicle Act, 1988. Hence, it is submitted that the compensation amount be reduced and insurance company be absolved of liability to pay compensation or at least by given to recover the amount paid by it as compensation to the claimants from the owner of the vehicle-opposite party no.2.

13. Learned counsel for the respondents on the other hand submits since admittedly the application compensation was under Section 163A of Motor Vehicle Act, 1988 which envisages payment of compensation on no fault liability hence, whether or not the deceased has any negligence or fault in happening of the occurrence of accident is irrelevant. It is then submitted that this limb of argument of the appellant has no merit. It is next submitted by Mr. Banerjee that the tractor as such is not required to have any permit for operation and insurance company has not pleaded absence of permit of the vehicle in question. Hence, in the absence of any pleading of any violation of the terms and condition of the insurance policy because of the 7 M.A. No. 166 of 2020 absence of permit, the learned Tribunal has rightly not accepted such contention of the appellant. It is further submitted that essentially, interest of the compensation amount is to be paid from the date of filing of the claim application and in case of any laches on the part of the claimants only; interest from later date can be directed to be paid but in this case even the appellant does not contend that the claimants have any laches in prosecuting the case. Hence, it is submitted that the learned Tribunal has rightly awarded the interest from the date of filing of the claim application. It is lastly submitted that this appeal being without any merit be dismissed.

14. Having heard the submissions made at the Bar and after going through the materials in the record, the following points for consideration that cropped up in this appeal is :- (i) “Whether the insurance company will be absolved of the liability to pay the compensation or be given liberty to pay the compensation amount first and then to recover the compensation amount from the owner of the vehicle on the ground that the offending tractor in question was not having any permit? (ii) Whether the learned Tribunal erred by adding 25% of the established income of the deceased towards future prospects?

15. Now coming to the facts of the case, it is pertinent to mention here that a tractor simpliciter is not required to 8 M.A. No. 166 of 2020 have any permit for its operation. The insurance company for the reasons best known to it has not produced the copy of the insurance policy before the learned Tribunal but the insurance of the tractor is not disputed. So, since the tractor has admittedly insured by the insurance company and a tractor does not require any permit to ply hence, this Court is of the considered view that the learned Tribunal has not committed any error in holding that there is no violation of the terms and condition of the insurance policy on the ground that the offending tractor was not having any permit. More so, because no such plea was taken by the appellant-opposite party no.1-insurance company before the learned Tribunal in its written statement.

16. It is pertinent to mention here that as rightly pointed out by the learned counsel for the respondents that this being the claim for compensation under Section 163A of Motor Vehicle Act, 1988 as it stood then hence, whether or not the deceased driver of the tractor was negligent in driving the vehicle in question which met with the accident is irrelevant.

17. Under such circumstances, this Court does not find any force in the contention of the learned counsel for the appellant that the insurance company be either absolved of the liability to pay the compensation or be given liberty to pay the compensation amount first and then to recover the compensation amount from the owner of the vehicle. The 9 M.A. No. 166 of 2020 first point for determination is answered accordingly; in the negative.

18. So far as the second point for determination is concerned, it is a settled principle of law that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects, in an application for compensation under section 163A, of the Motor Vehicles Act, 1988 as has been held in the case of R.K. Malik and another v. Kiran Pal and others reported in (2009) 14 SCC 1, paragraph nos. 33 and 34 of which reads as under:- “33. On perusal of the evidence on record, we find merit in such submission that the courts below have overlooked that aspect of the matter while granting compensation. It is well-settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the courts to consider the said aspect while awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit v. Balwant Yadav [(1996) 3 SCC 179] and Lata Wadhwa case [(2001) 8 SCC 197] . 34. In view of the discussion made hereinbefore, it is quite clear that the claim with regard to future prospects should have been addressed by the courts below. While considering such claims, child’s performance in school, the reputation of the school, etc. might be taken into consideration.”

19. Similarly, in the case of Kurvan Ansari alias kurvan ali and another v. Shyam Kishore Murmu and another reported in (2022) 1 SCC 317, the Hon’ble Supreme Court of India fixed the notional income at ₹ 30,000/-where the 10 M.A. No. 166 of 2020 deceased was 10 years old child by observing thus in paragraph nos. 11 to 13 of which reads as under:- a granted accordingly “11. As the claim was made under Section 163-A of the Motor Vehicles Act, 1988, since the deceased child was not an earning member, the Tribunal has considered notional income as per Schedule II for the purpose of fixing compensation. The Tribunal has awarded compensation by taking notional income of the deceased at Rs 15,000 per annum by applying multiplier of 15, awarded compensation of Rs 2,25,000 towards loss of dependency with interest @ 6% p.a. from the date of judgment. When the appeals are preferred by the insurance company as well as the appellants herein, by impugned common judgment [United India Insurance Co. Ltd. v. Kurvan Ansari, 2018 SCC OnLine Jhar 1506] , the High Court has dismissed the appeal preferred by the insurance company, and in the appeal preferred by the claimants, while confirming the compensation awarded for loss of dependency at Rs 2,25,000, has awarded a further sum of Rs 15,000 towards funeral expenses compensation of Rs 2,40,000 with interest @ 6% p.a. payable by Respondent 2 insurance company and by permitting it to recover the same from Respondent 1 owner of the motorcycle. 12. In the judgment in Puttamma [Puttamma v. K.L. Narayana Reddy, (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574] , this Court has observed that the Central Government was bestowed with the duties to amend Schedule II in view of Section 163-A(3) of the Motor Vehicles Act, 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs 1,00,000 (Rupees one lakh only) towards compensation for the non-earning children up to the age of 5 (five) years old and a sum of Rs 1,50,000 (Rupees one lakh fifty thousand only) for the non- earning persons of more than 5 (five) years old. 13. In R.K. Malik [R.K. Malik v. Kiran Pal, (2009) 14 SCC 1 : (2009) 5 SCC (Civ) 265 : (2010) 1 SCC (Cri) 1265] also, this Court has observed that the notional income fixed under Section 163-A of the Motor Vehicles Act, 1988 as Rs 15,000 per annum should be enhanced and increased as the same 11 M.A. No. 166 of 2020 continued to exist without any amendment since 14- 11-1994. In Kishan Gopal [Kishan Gopal v. Lala, (2014) 1 SCC 244 : (2014) 1 SCC (Civ) 184 : (2014) 1 SCC (Cri) 241] where the deceased was a ten-year- old child, this Court has fixed his notional income at Rs 30,000 per annum.” and in view of the settled principle of law, this Court has no hesitation in holding that no illegality has been committed by the learned Tribunal in enhancing the established income of the deceased by 25% towards future prospects of the income of the deceased and the second point for determination is also answered in the negative. In view of the discussions made above, this Court is of the considered view that there is no merit in this appeal. Accordingly, this appeal is dismissed on contest but under the circumstances without any costs. The Registrar General of this Court is directed to remit the statutory amount of Rs. 25,000/- if any, deposited by the appellant to the learned Tribunal forthwith. Let a copy of this Judgment along with the Lower Court Record be sent back to the learned court below forthwith.

23. High Court of Jharkhand, Ranchi Dated the 20th July, 2023 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.)