1. Ishwar Sharan Gupta @ Ishwar Sharan Agrawal 2. Smt. Prem Lata Agrawal … v. 1. Fr. James Lakra, Principal, St. Xavier’s School, Doranda, Ranchi. 2. St. Xavier’s School
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Miscellaneous Appeal No.628 of 2016 ---- 1. Ishwar Sharan Gupta @ Ishwar Sharan Agrawal 2. Smt. Prem Lata Agrawal …. …. Appellant(s) Versus 1. Fr. James Lakra, Principal, St. Xavier’s School, Doranda, Ranchi. 2. St. Xavier’s School, Doranda, Ranchi. 3. The National Insurance Company Limited, Divisional Office, Ranchi. …. …. Respondent(s) With Cross Objection No.32 of 2021 ---- 1. St. Xavier’s School, Doranda, Ranchi through its Principal – Fr. Sanjay Kerketta, resident of St. Xavier’s School Campus, Doranda, Ranchi. …. …. Cross Objector Versus 1. Ishwar Sharan Gupta @ Ishwar Sharan Agrawal 2. Smt. Prem Lata Agrawal 3. The National Insurance Company Limited, Divisional Office, Ranchi. …. …. Respondent(s) ---- CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR ---- For the Appellant(s) For the Respondent(s) 22/Dated: 12th March, 2024 : Mr. Arvind Kr. Lall, Adv. Mrs. Bandana Sinha, Adv. Mr. Shiwam, Adv. : Mr. Bibhash Sinha, Adv. Mr. Amresh Kumar, Adv. ---- 1. 2.
Legal Reasoning
Heard the parties. The present miscellaneous appeal being M.A No.628 of 2016 has been filed by the claimants for enhancement of the compensation amount, while the cross objection being C.O No.32 of 2021 has been filed by School i.e. the owner of the vehicle for indemnification of the liability from the Insurance Company. 3. From the arguments and pleadings of the parties, it appears that on 13.03.2003 the deceased namely, Mukesh Kr. Agarwal, has met with an accident while he was returning to his house riding on his scooter bearing registration No.BR-14C-1358 with the school bus of St. Xavier’s School, Doranda, Ranchi bearing registration No.BPN-8157 and he died on the same day. Thereafter, claim petition bearing Compensation Case No.32 of 2007 has 2 M.A. No.628 of 2016 with C.O. No.32 of 2021 been filed. It appears that altogether seven issues have been framed which are as follows:- registration No.BPN-8157 driving “1. Whether the case as framed maintainable? 2. Whether the applicants have valid cause of action for the case? 3. Whether the deceased Mukesh Kr. Agarwal died in the alleged vehicular accident caused by the offending vehicle Bus, bearing rashly and negligently? 4. Whether thee is any contributory negligence of the deceased in drivig the Scooter bearing registration No.BR-14C-1358 involved in the accident? 5. Whether the insured owner of the offending vehicle Bus bearing registration No. BPN-8157 violated any terms and conditions of the insurance policy? 6. Whether the applicants are entitled for compensation as claimed, if yes, against whom and to what extent? 7. To what relief, if any, the claimants are entitled to?” 4. In the present proceeding before this Court, only issue No.5 is involved so far as in Cross Objection No.32 of 2021 is concerned and the income of the deceased which has been taken as Rs.15,000/- per annum. 5. Thus the finding has been recorded by the court below that the deceased has died due to the negligence on the part of the offending school bus. The following facts have been accepted on the basis of evidence. a) The Age of the deceased was 27 years and he was unmarried. b) Both parents are alive. c) The income of the deceased has been taken as Rs.15,000/- per annum while the sister-A.W.-2 and the mother-A.W.-3 of the deceased have stated that the deceased was earning Rs.10,000/- per month by employing himself as Financial Advisor. 6. On the said basis, the calculation has been made and compensation amount of Rs.2,40,000/- (Two Lacs and Forty Thousand Rupees only) has been awarded to the claimants with interest @ 9% per annum from the date of application. So far as the claim is concerned, there is evidence to suggest that he was earning Rs.10,000/- per month but the same has not been accepted by the Tribunal and no cogent reason has been assigned in this matter. Once there is an evidence and that has also not been negated then it should be accepted ordinarily. 7. Considering the above fact, the income of the deceased is accepted as Rs.10,000/- per month. Considering the same and applying the parameters as 3 M.A. No.628 of 2016 with C.O. No.32 of 2021 laid down by the Hon’ble Apex Court in Sarla Verma and Ors. Vs. Delhi Transport Corp. & Anr. reported in 2009 (6) SCC 121 and National Insurance Company Ltd. Vs. Pranay Sethi & Ors. reported in 2017 (16) SCC 680. The calculation is as follows:- Annual Income (10,000 per month x 12) 1,20,000/- Deduction towards personal expenses i.e 1/2 (as deceased was (-) 60,000/- unmarried) As per judgment of Sarla verma vrs. DTC (2009) 6 SCC 121 (paras 30 & 31) 60,000/- Add (+) Future prospect @ 40% As per judgment of National Insurance (+) 24,000/- Co. Ltd., vrs. Pranay Sethi (2017) 16 SCC 680 (para59.4) Multiplier (17) (as deceased is aged about 27 years) As per judgment of 84,000 x 17 Sarla Verma v. DTC (2009) 6 SCC 121 (para-42) Annual dependency Rs.84,000/- 14,28,000/- Add (+) Loss of Estate As per judgment of National Insurance Co. Ltd., (+) Rs.15,000/- vrs. Pranay Sethi (2017) 16 SCC 680 (para59.8) Add (+) Loss of Consortium (+) Rs.40,000/- As per judgment of National Insurance Co. Ltd., vrs. Pranay Sethi (2017) 16 SCC 680 (para59.8) Add (+) Funeral Expenses (+) Rs.15,000/- As per judgment of National Insurance Co. Ltd., vrs. Pranay Sethi (2017) 16 SCC 680 (para59.8) Total Compensation Amount Rs.14,98,000/- 8. Thus, on the basis of above calculation and following the parameters of the Hon’ble Apex Court, the compensation amount is fixed as Rs.15,00,000/- (Fifteen Lacs only) to be paid to the claimants with 9 per cent interest from the date of application. The paid amount should be deducted. 9. The date of accident is dated 13.03.2003. The application has been made in the year 2007. The date of Award is 20.07.2016. The present appeal for enhancement has been filed on 29.11.2016. 10. Considering the above fact the interest amount will be payable from the date of award of the court below till actual payment at the rate of 9 per cent interest. 11. With above observation and direction, the present appeal stands allowed. C.O. No.32 of 2021 1. It appears that the owner of the offending vehicle (St. Xavier School) has not participated in the proceeding before the Tribunal and accordingly an ex- parte order has been passed. 4 M.A. No.628 of 2016 with C.O. No.32 of 2021 2. Cross objection has been filed and the prayer for leading the additional evidence has been accepted. The order dated 06.02.2014 passed by this Court is relevant which is quoted hereinbelow:- “I.A. No.1557 of 2022 in C.O. No.32 of 2021 1. The present interlocutory application has been filed on behalf of the cross-objector under Order 41 Rule 27 of the C.P.C. with the prayer to produce the copy of the driving license, tax token, fitness certificate, copy of the release petition for the vehicle, letter issued from the office of RTO, Ranchi and copy of the certificate issued by Lower Bazar Police Station, Ranchi which are made Annexure-IA/1 to IA/6 respectively. 2. The ground shown is that the claim petition was decided by the learned Tribunal against the cross-objector/owner ex parte. The fact is that Late Father James Lakra, the then principal of St. Xavier’s School, Doranda, Ranchi appeared and filed his Vakalatnama but later on he shifted to Assam where he passed away on 21st April, 2012. On account of these unforeseen situation and communication gap which has taken place, the school was prevented to contest the claim petition before the learned Tribunal. The new Principal of the school was never informed by the conducting lawyer about the pendency of the said claim petition. All the vehicular papers including the driving license of the driver Lalu Singh are in order but the school on account of unavoidable circumstances could not continue to participate the proceeding before the learned Tribunal. In view of the above prayed to take these documents on record. The ground shown is also supported with the affidavit. 3. On behalf of the respondent no.3—the National Insurance Company, a rejoinder affidavit against this interlocutory application was filed on the ground that the statement made in paragraphs 4 and 5 are partly correct. In compensation case, Opposite Party No.1 was father James Lakra in the capacity of Principal St. Xavier’s School, Doranda, Ranchi and O.P. No.2 was the school. It is not mentioned in the interlocutory application that when the father James Lakra was transferred to Assam and was debarred from filing the written statement well before his death. Now 17 years have lapsed and the cross- objector is deliberately avoiding this case and also raised the question in regard to evidentiary value of the documents filed along with the I.A. 4. I have heard the learned counsel for the parties and perused the record. 5. This fact is admitted that the claim petition was decided by the learned Tribunal ex parte against the owner, who is cross- objector herein and against the impugned award M.A. No.628 of 2016 was filed on behalf of the claimants for enhancement of the compensation amount awarded by the learned Tribunal in the year 2016. 6. On behalf of the owner C.O. No.32 of 2021 was filed within period of limitation of one month from the date of service of notice of M.A. No.628 of 2016. In the I.A. itself, the ground is shown that the then Principal of the school, namely, father James Lakra who was O.P. No.1 in the claim petition had shifted to Assam and also passed away thereon on 21st April, 2012 and on account of communication gap, the school was prevented to contest the claim petition. It is also further 5 M.A. No.628 of 2016 with C.O. No.32 of 2021 submitted that new Principal of the school was never informed by the conducting lawyer on behalf of the school in regard to pendency of the said claim petition. As such, the ground shown is found sufficient. 7. So far as the contention of the respondent no.3—Insurance Company that no exact date is given when the then Principal of the School had shifted to Assam and the said application has been filed belated after lapse of 17 years from the date of occurrence is concerned, the same is not found tenable, reason being that the award passed in the claim petition was ex parte against the owner and on account of reasons as shown in the I.A., the cross-objector could not come to know in regard to the pendency of the said claim petition which was decided ex parte. The said award was challenged on behalf of the claimant in M.A. No.628 of 2016. Notice of the same were issued to the owner of the vehicle and after service of notice, the owner of the vehicle appeared in M.A. No.628 of 2016 and also filed cross-objection being C.O. No.32 of 2021 within 30 days from the date of service of notice. As such, this long period cannot be accepted as a ground to refuse the cross-objector to produce documents filed with the I.A. which are necessary documents to decide the dispute between the parties in regard to the liability to pay the compensation effectively and completely. These documents would also enable the Court to come on proper conclusion in disposal of the appeal. As such, the grounds shown comes within the periphery as enumerated under Order 41 Rule 27 of the C.P.C. which is reproduced hereinbelow : “7. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be exam med. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.”
Legal Reasoning
8. Accordingly, this interlocutory application is hereby allowed with cost of Rs.1000/- and the documents filed with I.A. are taken on record. 9. The cost shall be paid in the office of the Registrar General of this Court and the same be released in favour of the learned counsel for the respondent no.3. M.A. No.628 of 2016 with C.O. No.32 of 2021 6 M.A. No.628 of 2016 with C.O. No.32 of 2021 10. List these cases on 5th March, 2024 under the appropriate heading.” 3. It appears that the verification has been done by the State and an affidavit dated 12.05.2022 has also been filed. Paragraph No.4 of the said affidavit is relevant which is quoted hereinbelow:- “4) That in terms of the aforesaid direction, the details were duly scrutinized and the report is submitted as under: i. ii. iii. iv. Vehicle No.BPN 8157 was registered on 20.04.1982 in the name of Bishop Hartman Academy I/c Fr. S. Tirkey, Ara Gate, Mahilong, Ranchi. Fitness of said Vehicle was valid on 19.04.2006. Tax of said Vehicle was valid on 19.04.2019. The offline tax registere prior to 2005 is not readily available in the office. The Driving License No.339/84 (Prof) issued in the name of Lalu Singh on 11.02.1984 and was valid even from 12.03.2002 to 11.03.05 and LMV w.e.f. 11.03.1984; HMV w.e.f. 28.03.1987; PSV Badge out of Stock w.e.f. 26.06.2004.” 4. Now, the only dispute which has been raised by the insurance company for avoiding its liability is the non-existence of permit. Regarding permit, the State government has filed a supplementary affidavit dated 12.09.2022. Paragraph Nos.7, 11 and 12 of the said affidavit are relevant and these are reproduced hereinbelow with supporting annexures. “7. That it is hereby submitted that the petitioner has applied for supply of the copy of the documents related to permit as per the direction of the Hon'ble Court. That the office of the deponent vide letter no.437 dated 10.12.2021 has already informed to the petitioner that the office has been shifted in the year 2013 to the New Building, due to old building very dilapidated, some documents which are very old and whose movement was not possible are left there. 11. That it is stated and submitted that the deponent has issued office order vide letter no. 356 dated 29.07.2022 in which the concerned office staff has been directed to submit the documents related to permit of vehicle no. BPN 8157. 12. That it is stated that on the basis of the same elaborate efforts were taken by Deputy Transport Commissioner cum Secretary. However by letter dt. 23.08.2022, it has been informed that inspite of all efforts to recover the file from the old building was undertaken, but on account of the fact that the condition of the building is very bad and all the papers therein have decomposed on account of dampness / water logging, etc. and as such the concerned documents related to permit could not be traced and have been said to be not available.” 7 M.A. No.628 of 2016 with C.O. No.32 of 2021 ANNEXURE-B 8 M.A. No.628 of 2016 with C.O. No.32 of 2021 COPY OF ANNEXURE-B 9 M.A. No.628 of 2016 with C.O. No.32 of 2021 ANNEXURE-C 10 M.A. No.628 of 2016 with C.O. No.32 of 2021 ANNEXURE-D 5. Learned counsel for the appellants has brought on record a certificate issued by the concerned Police Station from where the vehicle has been released and also the petition filed in the court below for release of the vehicle wherein it has been mentioned that permit was there. 6. Learned counsel for the insurance company has submitted that the certificate of the Police Thana is of the year 2023 while the accident has occurred in the year 2003. The vehicle, in question, has been released in the year 2003 itself. 7. Further, although the application before the court has been produced but the order of the concerned court has been produced. Thus, these are not the reliable documents and cannot be a basis for giving findings that the permit was in existence. 8. Referring to the affidavit of the State counsel, it has been submitted that there is clear cut statement by the state officials that there is no mentioning regarding the permit of the vehicle, in question, in the relevant record. Thus, there is no material to suggest that the vehicle, in question, was being run on the basis valid permit. 11 M.A. No.628 of 2016 with C.O. No.32 of 2021 9. On the other hand, learned counsel for the objector has submitted that the cross-objector could not participate in the Tribunal but his participation in the present proceedings has been accepted and he has been allowed to bring on record the relevant documents. So far as the permit is concerned, there is sufficient mention in the application for release and the certificate given by the concerned Police Station. The affidavit filed by the State does not negate the existence of permit rather it has been stated that it is not available. 10. Considering the fact that it is a school bus which was being run and evaluating the above statements and the documents brought on record, this Court comes to a finding that the existence of permit cannot be negated. Reliance can be placed upon the judgment of the Hon’ble Apex Court in the case of Anita Sharma & Ors. Vs. New India Assurance Co. Ltd. & Anr. reported in 2021 (1) SCC 171. Para-22 of the said judgment which reads as under:- “22. 22. A somewhat similar situation arose in Dulcina this Court Fernandes v. Joaquim Xavier Cruz wherein reiterated that: (SCC p. 650, para 7) "7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC).” 11. In view of above discussion and the considering the material available on record, this Court comes to the finding that the offending vehicle was possessing all the required certificates to claim indemnification from the insurance company. Accordingly, the right to recovery given to the insurance company is, hereby, annulled. The Award is, accordingly, modified. 12. The quantum of Award is modified to the extent as indicted hereinabove. 13. With above modification, the present Cross Objection stands allowed. Raja-Amar/- Uploaded (Rajesh Kumar, J.)