Mr. Pratyush Kumar v. Nanu Ram @ Chuhru Ram reported in 2018 (4) JLJR 230 SC & Ors.

: Mr. Pratyush Kumar, Advocate ------ (In M.A. No.415 of 2019) 2 M.A.No.415 of 2019 C.O. No.04 of 2021 Mr. Jitesh Kumar, Advocate (In C.O. No.04 of 2021) For the Respondents : Mr. Ankit Vishal, Advocate Mr. Jitesh Kumar, Advocate (In M.A. No.415 of 2019) Mr. Pratyush Kumar, Advocate (In C.O. No.04 of 2021) P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court: - Heard the parties.

Since the Cross Objection has arisen out of this Miscellaneous Appeal, thus both the Miscellaneous Appeal as well as the Cross Objection are disposed of by this common judgment.

This Miscellaneous Appeal has been preferred against Judgment and Award dated 20.02.2019 passed by Learned District Judge-IX, Jamshedpur, in Motor Accident Compensation Case No.198 of 2017 whereby and where under the learned tribunal has directed the appellant/opposite party No.2- National Insurance Company to pay a compensation of Rs.7,45,000/- to the claimants along with simple interest thereon @ 6% per annum from the date of filing of the claim application, less the amount, paid under Section 140 of Motor Vehicles Act. 4. The brief facts of the case is that on 01.12.2011 while the deceased- Budram Mardi was travelling by a tractor insured by appellant/opposite party No.2- National Insurance Company; due to rash and negligent driving of the driver of the tractor, the tractor turned turtle due to which Budram Mardi fell down and went under the tractor and died at the spot. It is stated that the deceased was aged about 40 years at the time of his death and was working as a labourer. The four dependants of the deceased being his wife, his two minor sons as well as his mother filed the application under Section 166 of the Motor Vehicles Act for claim of compensation. 5. The opposite party No.1- owner of the vehicle did not appear before the learned tribunal. 3 M.A.No.415 of 2019 C.O. No.04 of 2021

The opposite party No.2- National Insurance Company Limited in its written statement challenged the maintainability of the claim petition and admitted that the Insurance Company insured the offending tractor and pleaded that the conditions of the policy has been violated. For the reasons best known to the appellant/opposite party No.2- National Insurance Company, the insurance company did not file the policy documents before the learned tribunal.

On the basis of the rival pleadings of the parties, the learned tribunal framed the following five issues:- (I). Whether this case is maintainable in present form or not and whether the deceased died due to rash and negligent driving by driver of Tractor bearing regd. No. JH-22A-1357?? (II). Whether vehicle was insured with the National Insurance Co. Ltd. and whether OP Insurance Company is liable to make payment of compensation? (III). Whether owner of the vehicle has violated any terms and conditions of the Insurance Policy including requirement of valid Driving License? (IV). Whether applicants are entitled to get compensation if so what would be quantum of compensation? (V). Whether applicants are entitled to get any other relief or reliefs?

In support of their case, the claimants examined A.W.1 namely Somwari Mardi as the sole witness besides proving the documents i.e. certified copies of the F.I.R., charge-sheet and P.M. Report which have been marked as Ext. 1 to Ext. 3 respectively. From the side of the opposite party No.2, one witness was also examined. The opposite party No.2 also proved the carbon copy of the letter addressed to the owner of the vehicle which has been marked as Ext. A.

The learned tribunal first took up issue No. (I) and came to the conclusion that the claim application is maintainable.

Thereafter, the learned tribunal took up issue Nos. (II) and (III) together and after considering the materials in the record answered both the issues in favour of the claimants.

The learned tribunal then considered the issue No. (IV) and on the basis of the post-mortem report marked Ext.3, assessed the age of the deceased to be 40 years and applied the multiplier of 15. The learned tribunal assessed the income of the deceased to be Rs.4,000/- per month and enhanced the same by 25% towards future prospect keeping in view 4 M.A.No.415 of 2019 C.O. No.04 of 2021 the age of the deceased to be 40 years at the time of his death, deducted one-fourth of the total amount towards his personal expenses, added Rs.40,000/- towards loss of consortium, awarded Rs.15,000/- each towards loss of estate and funeral expenses and arrived at the total compensation of Rs.7,45,000/-.

Mr. Pratyush Kumar- learned counsel for the appellant in M.A. No.415 of 2019 submits that the learned tribunal could not properly appreciate the evidence in the record in its right perspective. It is next submitted that the deceased was travelling in the tractor besides the driver of the tractor; hence, he was not covered under the policy. It is next submitted that the tractor being a miscellaneous type of vehicle as defined under Section 2 (44) of the Motor Vehicles Act, 1988, hence no passenger or any employee can be permitted to travel in the said tractor. Thus, permitting the deceased to sit beside the driver tantamount to fundamental breach of terms and conditions of the policy contributing to the cause of the accident. It is next submitted that it is crystal clear even from the Ext. 1 and Ext. 2 which are the certified copies of the F.I.R and charge-sheet that the deceased was travelling in the tractor and was sitting beside the driver. Hence, it is submitted that the appellant/opposite party No.2- National Insurance Company be absolved of the liability to pay the compensation amount.

Mr. Ankit Vishal- learned counsel for the respondent No.5 of M.A. No.415 of 2019 vehemently opposes the prayer for absolving the appellant/opposite party No.2- National Insurance Company to pay the compensation amount and saddled the opposite party/respondent No.5- owner of the vehicle with the liability to pay the compensation. It is next submitted by Mr. Vishal that there is absolutely no pleading on behalf of the appellant/opposite party No.2- National Insurance Company that the vehicle in question was having sitting capacity of one only. It is next submitted that since the appellant/opposite party No.2- National Insurance Company has admitted the insurance of the offending vehicle but for which an ulterior motive it, has not brought on record the concerned insurance policy, therefore, the appellant/opposite party No.2- National Insurance Company is debarred from raising the ground that the 5 M.A.No.415 of 2019 C.O. No.04 of 2021 vehicle was not covered by the insurance policy to cover the deceased in the instant case; in the absence of any pleading or proof regarding the same. It is further submitted by Mr. Vishal that under such circumstances, there being no rhyme or reason to absolve the Insurance Company of the liability to pay the compensation; in view of categorical admission of the insurance of the offending vehicle. Hence, it is submitted that this appeal, being without any merit, be dismissed.

Mr. Jitesh Kumar- learned counsel for the cross-objector submits that though there are four dependents, still the loss of consortium of only Rs.40,000/- has been awarded by the learned tribunal instead of Rs.1,60,000/-. Hence, it is submitted that the loss of consortium amount be enhanced by Rs.1,20,000/-. It is next submitted that the learned tribunal has assessed the income of the deceased to be on lower side and it should have assessed the income of the deceased at Rs.5,000/- per month and ought to have awarded interest @ 9% per annum instead of 6% per annum.

Mr. Pratyush Kumar- learned counsel for the respondent No.1 in Cross Objection No.04 of 2021 on the other hand vehemently opposes the prayer for enhancement of the compensation. It is next submitted by the learned counsel for the respondent No.1 in Cross Objection No.04 of 2021 that the cross objectors could not produce any document whatsoever regarding the income of the deceased. No bank account or other document was brought on record to show the financial status of the deceased. Under such circumstances, it is submitted that the learned tribunal has rightly assessed the income of the deceased to be Rs.4,000/- per month. It is next submitted that since the cross objectors have failed to bring in record any evidence as to what was the rate of interest being awarded by the bank on the relevant date and keeping in view the rates of interest i.e. offered by various banks the learned tribunal has rightly awarded the interest @ 6% per annum and interest @ 9% per annum would be a windfall for the appellants. Hence, it is submitted that this Cross Objection, being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the 6 M.A.No.415 of 2019 C.O. No.04 of 2021 following points crop up for determination in this appeal:- (i) Whether the Insurance Company is entitled to be absolved of the liability to pay the compensation amount and to saddle the said liability upon the owner of the vehicle? (ii) Whether the amount of compensation and the rate of interest awarded, is to be enhanced?

So far as the first point for determination is concerned, as rightly submitted by the learned counsel for the respondent No.5, the appellant/opposite party No.2- Insurance Company for reasons best known to it; has withheld the insurance policy from the learned tribunal. The insurance of the offending vehicle is admitted. There is no document to show that the vehicle in question was having sitting capacity of one person only. Under such circumstances, this Court do not find any merit in the contention of the appellant that the deceased was not covered by the insurance policy issued by the appellant/opposite party No.2- Insurance Company; because there is absolutely no pleadings to that effect nor is there any prayer. Hence, this Court is of the considered view that the appellant/opposite party No.2- Insurance Company having failed to establish its plea that there is any violation of the terms and conditions of the insurance policy, the copy of which policy itself has not been brought on record by the Insurance Company. In view of the admission that the offending vehicle was insured with the appellant/opposite party No.2- Insurance Company, there is no plausible reason to absolve the Insurance Company of the liability to pay the compensation amount. Hence, the first point for determination is answered in the negative.

So far as the second point for determination is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru Ram and Others reported in 2018 (4) JLJR 230 SC that each of the defendants are entitled to get Rs.40,000/- each as loss of consortium. Thus, this Court has no hesitation in holding that the cross-objectors are entitled to get Rs.1,20,000/- more towards loss of consortium.

So far as the contention of the cross-objectors regarding the learned tribunal assessing the income of the deceased on the lower side is 7 M.A.No.415 of 2019 C.O. No.04 of 2021 concerned, as rightly submitted by the learned counsel for the respondent No.1 in the cross-objection that the claimants could not produce any chit of paper regarding the income of the deceased. The claimants could not produce any document to show the financial status of the deceased being his bank account or proof of any other assets possessed by him.

Considering the facts and circumstances of the case, this Court is of the considered view that there is no justifiable reason to interfere with the assessment of the income of the deceased by the learned tribunal.

So far as the enhancement of rate of interest is concerned, as rightly submitted by the learned counsel for the respondent No.1 of the cross objection; the claimants could not bring in record any document or any other cogent evidence regarding the rate of interest offered by banks on fixed deposit; at the relevant time. In the absence of any proof of any prevalent rate of interest offered by the banks on deposits, this Court is not inclined to interfere with the awarding of interest @ 6% per annum by the learned tribunal. Accordingly, the second point for determination is answered by holding that the claimants are entitled to Rs.1,20,000/- more towards loss of consortium only. The second point for determination is answered accordingly.

In view of the answer to the two points for determination, the impugned judgment and award is modified by enhancing compensation from Rs.7,45,000/- to Rs.8,65,000/- and the rate of interest will remain the same i.e. simple interest @ 6% per annum.

In the result, this Miscellaneous Appeal No.415 of 2019 is dismissed on contest but under the circumstances without any costs and the Cross Objection No.04 of 2021 is allowed to the extent as mentioned above.

The Registrar General of this Court is directed to remit Rs.25,000/-, if any, deposited by the appellant of Miscellaneous Appeal No.415 of 2019 to the learned tribunal concerned forthwith.

The impugned judgment and award is modified by directing the appellant/opposite party No.2- National Insurance Company to pay Rs.8,65,000/- with interest thereon @ 6% per annum within three months from the date of this judgment.

Let a copy of this judgment along with the lower court records be 8 M.A.No.415 of 2019 C.O. No.04 of 2021 sent to the learned tribunal concerned forthwith. High Court of Jharkhand, Ranchi Dated the 22nd of August, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 9