w w w . L a w y e r S e r v i c e s . i n



The Branch Manager, M/s The Oriental Insurance Company Ltd. Through Divisional Manager v/s Jayanti Devi & Others


    M.A. No. 295 of 2017

    Decided On, 09 March 2020

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE KAILASH PRASAD DEO

    For the Appellant: G.C. Jha, Advocate. For the Respondents: Manoj Kumar Sinha, Advocate.



Judgment Text


I.A. No. 2426 of 2019.

Heard, learned counsel for the appellant, Mr. G.C. Jha and learned counsel for the claimants, Mr. Manoj Kumar Sinha.

Learned counsel for the appellant has submitted that this miscellaneous appeal has been preferred with delay of 29 days and for condonation of the same, I.A. No. 2426 of 2019 has been preferred.

The reasons have been assigned in paragraph nos. 3 & 4 of the application. As such, the delay may be condoned as time has been taken in processing the file for preferring this appeal.

Learned counsel for the respondents has opposed the prayer.

Considering the rival submissions of the parties, the delay of 29 days in preferring the miscellaneous appeal is condoned.

Accordingly, I.A. No. 2426 of 2019 is disposed of.

M.A. No. 295 of 2017

Heard, learned counsel for the appellant, Mr. G.C. Jha and learned counsel for the claimants, Mr. Manoj Kumar Sinha.

The appellant - The Oriental Insurance Company Ltd. has preferred this appeal against the Award/Judgment dated 16.01.2017 passed by District Judge-II-cum-M.A.C.T. Judge, Dhanbad in Title (M.V.) Suit No. 66 of 2015, whereby claimants have been awarded the compensation to the tune of Rs. 17,97,000.00 alongwith interest @ 6% per annum from the date of filing of the claim application.

Learned counsel for the appellant assailed the impugned judgment on three counts:-

(i) The income of the driver has been wrongly considered as Rs. 9,000/- per month without any documentary proof of the same.

(ii) The Tribunal has wrongly granted Rs. 1,00,000/- as a loss of consortium and Rs. 3,00,000/- as loss of love and affection of three minor daughters.

(iii) The Tribunal has wrongly granted Rs. 10,000/- as loss of estate and Rs. 10,000/-as funeral expenses contrary to the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (paragraph-59.8) as reported in (2017) 16 SCC 680.

Learned counsel for the appellant thus submitted that the amount paid in excess to the claimants by the Tribunal may be reduced.

Learned counsel for the respondents / Claimants Mr. Manoj Kumar Sinha has submitted that the salary of the deceased has been rightly considered by the Tribunal as Rs. 9,000/- per month in view of the evidence adduced by the P.W.-4, Tej Narayan Mahato, employer, who has stated that deceased was driver and his monthly income was Rs. 9,000/- per month.

Learned counsel for the claimants has further submitted that the deceased was 27 years of age and as such, the Tribunal has rightly granted the compensation. Learned counsel for the respondents has submitted that it is true that under the head of loss of consortium, loss of love and affection of three minor daughters, loss of estate and funeral expenses, the learned Tribunal has granted excess amount to the claimants, but on the other hand, the Tribunal has not considered 40% of future prospect of the deceased, as such, in view of judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639, this Court may compute the compensation, so that the claimants, who are widow and three minor daughters of the deceased, may not suffer.

Learned counsel for the claimants-respondents has further submitted that interest which has been awarded @ 6% per annum may also be enhanced so as to compute the same with 7.5% interest in view of the judgment passed in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (4) JCR 79 (SC), though claimants have not preferred any appeal for enhancement of award.

Learned counsel for the claimant has thus submitted that just and fair compensation may be given to the claimants who are in dire need of money because of loss of bread earner.

After hearing learned counsel for the parties and on perusing the impugned Award, it appears that the deceased Ashok Kumar Mahato along with Ganga Mahato and others were repairing JCB Machine bearing Registration No. JH-10N-7724 in the side of G.T. Road, near Chalkari More, P.S.-Topchanchi, District – Dhanbad and suddenly one truck bearing Registration No. BR-02W-2585 coming from west side with high speed rashly and negligently and in careless manner dashed the JCB Machine, and also dashed the Ganga Mahato, Ashok Kumar Mahato and others due to which Ganga Mahato sustained grievous injury and died on the spot and Ashok Kumar Mahato also sustained injury, who was taken to PMCH for treatment, but also died. On the statement of one Dhaneshwar Mahato, a criminal case has been registered against the driver of the offending truck bearing registration no. BR-02W-2585 vide Topchanchi P.S. Case No. 119 of 2014 under Sections 279, 337, 304(A), 427 of the I.P.C. The post mortem report of the deceased Ashok Kumar Mahato was brought on record. The deceased was a young person, aged about 27 years and had income of Rs. 300/- per day, which come to Rs. 9,000/- per month. The claimants are the dependents of the deceased and they have suffered financial loss apart from loss of a person in the family. The offending vehicle was duly insured and has not violated any terms and condition of the policy.

The Tribunal has framed seven issues, which are as under:-

I) Whether the suit is maintainable in its present form?

II) Whether the plaintiffs have cause of action for the present suit?

III) Whether the deceased, namely, Ashok Kumar Mahto, died in a motor vehicle accident as claimed by the plaintiffs?

IV) Whether the deceased died due to rash and negligent driving by the driver of the truck bearing registration No. BR-02W-2585?

V) Whether there is a breach of agreement between the owner of the delinquent vehicle and the Insurance Company?

VI) Whether the plaintiffs are entitled for the relief claimed?

VII) Whether the plaintiffs are entitled for any other relief or reliefs?

During trial, the plaintiffs / respondents have examined six witnesses. Jayanti Devi, widow of the deceased as P.W.-1; Gauri Devi, mother of the deceased as P.W.-2; Mahabir Mahato, father of the deceased as P.W.-3, Tej Narayan Mahato, employer of the deceased as P.W.-4; Pankaj Kumar Mahato as P.W.-5 and Binod Kumar Mahato as P.W.-6. Apart from that, claimants have also brought on record a large number of documents up to Exhibit-8, which are as follows:-

Ext.-1 is the certified copy of F.I.R. of Topchanchi P.S. Case No. 119/14;

Ext.-2 is the certified copy of charge sheet of Topchanchi P.S. Case No. 119/14.

Ext.-3 is Death Certificate of deceased.

Ext.-4 is the Mark Sheet of the deceased of Secondary Examination, 2003;

Ext.-5 is the Certificate of Intermediate of deceased;

Ext.-6 is the Admit Card of B.Sc. Part-I of Binoba Bhave University, Hazaribagh;

Ext.-7 is the Sports Certificate of deceased;

Ext.-8 is the Family Certificate of the plaintiffs;

Apart from this, certain documents have been brought on record, which have been marked for identification as 'X to X/7'.

Mark-X for identification – Xerox copy of Postmortem Report No. 870/14;

Mark-X/1-for identification – xerox copy of Insurance Policy of vehicle;

Mark-X/2-for identification – xerox copy of owner book;

Mark-X/3-for identification – xerox copy of driving licence of deceased;

Mark-X/4-for identification – xerox copy of authorization Certificate;

Mark-X/5-for identification – xerox copy of permit of vehicle;

Mark-X/6-for identification – xerox copy of Tax Token;

Mark-X/7-for identification– xerox copy of Duplicate Carbon receipt Book;

The Tribunal has considered that the vehicle was duly insured before the Insurance Company and deceased has income of Rs. 9,000/- per month. No contrary evidence has been brought on record by the Insurance Company with regard to income of the deceased, as such, this Court has no reason to interfere in the findings recorded by the learned Tribunal with regard to income of the deceased on the basis of the pleadings and evidence of the employer. Considering the age of the deceased to be 27 years, learned Tribunal has applied the multiplier of 17 in view of Schedule-2 of Motor Vehicle Act and calculated the compensation amount. It is true that the Tribunal has paid excess amount under the heading loss of consortium of Rs. 1,00,000/-, loss of love and affection of three children of Rs. 3,00,000/-, loss of estate of Rs. 10,000/- and funeral expenses of Rs. 10,000/-, contrary to the judgment of Apex Court passed in Pranay Shetty (supra) whereunder the conventional head, the amount should be to the tune of Rs. 70,000/- (Rs. 40,000/- for loss of consortium, Rs. 15,000/- for funeral expenses, Rs. 15,000/- for loss of estate).

But on the other hand, in view of the judgment passed by the Apex Court passed in the case of Ranjana Prakash (Supra), this Court is also conscious of the fact that compensation should be just and fair compensation to the claimants. It is true that the future prospect has not been considered. As such, in view of judgment passed by the Apex Court in the case of Pranay Shetty (Supra) since the deceased has a permanent income and he was below the age of 40 years and has fixed salary, as such in view of para-59.4 of the judgment, the claimants are entitled for 40% of the amount as future prospect.

Considering the same, this Court dispose of the appeal without interfering in the quantum as the amount of compensation shall be more, if deducted as prayed by the appellant but compensation be more if 40% of future prospect be added. Thus, in absence of any cross appeal or appeal for enhancement by the claimants-respondents, this Court is not interfering in the same.

Accordingly, this appeal is disposed of without modifying the quantum of compensation granted by the learned Tribunal.

The Insurance Company is directed to satisfy the award within a period of 90

Please Login To View The Full Judgment!

days from today. The statutory amount deposited by the Insurance Company shall be reimbursed / refunded by the learned Registrar General within a period of four weeks from the date of filing of requisition by the learned counsel for the appellant. If the amount is deposited before the learned Tribunal, the Tribunal shall issue notice and after due verification reimburse the same to the claimants in terms of the order passed by learned Tribunal. The Secretary, DLSA, Dhanbad is directed to verify as to whether any claim application with respect to the other deceased has been filed or not in view of the judgment of Apex Court passed in the case of Jai Prakash Vs. National Insurance Company Ltd. reported in 2010 (2) SCC 607 and if no claim application has been filed with respect to other deceased of the same occurrence, the Secretary, DLSA is also directed to submit a report whether they require legal assistance. The required report must be submitted before this Court within a period of four weeks. Let a copy of order be communicated to the Secretary, DLSA, Dhanbad through ‘FAX’.
O R