Partly allowed

Future Generali India Insurance Co. Ltd. v. Manoj Kumar Ram

Jharkhand HC8 Aug 2023MA/138/2020

Case brief

AI extract

What is this about?

High Court of Jharkhand modified a Motor Accident Claim award by setting aside 9% penal interest awarded by the lower tribunal, upholding otherwise the compensation of Rs.10,52,273/- with simple interest. The court rejected defenses regarding vehicle registration and contributory negligence.

What did the court decide?

The impugned judgment and award modified by setting aside the enhanced penal interest of 9%; appellant directed to pay Rs.10,52,273/- with simple interest at 6% per annum.

Future Generali India Insurance Co. Ltd. Vs Manoj Kumar Ram — Insurance | Jharkhand HC (2023)

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M.A. No.138 of 2020

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IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No.138 of 2020

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(Against the Judgment and Award dated 14.11.2019 passed by Learned District Judge-II-cum-M.A.C.T, Giridih in Motor Accident Claim Case No.57 of 2018)

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Future Generali India Insurance Co. Ltd, Future Generali India Insurance Co. Ltd 3^rd Floor, 230A, Chitrakoot Building, A.G.C. Road, Kolkata, P.O., P.S. & A.J.C. Bose Road, District- 24 Parganas, Kolkata- West Bengal 700020. ………. Opp. Party No.3/Appellant

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Versus

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(1) Manoj Kumar Ram Son of Rameshwar Ram, resident of Karmatand, P.O. Doranda, P.S. Dhanwar, District- Giridih (Claimant)

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(2) Mustakim Ansari (Owner (Previous) of Tractor No. JH-12D-2671) Son of Bakrali Mian, Resident of Village- Gargi, P.O. Parsatand, P.S. Jainagar, Koderma, Jharkhand (Opp. Party No.1)

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(3) Rajesh Yadav son of Sri Prakash Yadav, Resident of Village Tilaiya Basti, P.O. Jhumri Tilaiya, P.S. Tilaiya District- Koderma (Present Owner of Tractor) (Opp. Party No.2)

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………. Respondents

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For the Appellant : Mr. Alok Lal, Advocate Mr. Santosh Kumar, Advocate : For the Resp. No.1 Mr. Vijay Kr. Roy, Advocate For the Resp. No.2 : Mr. Nadimuddin, Advocate

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P R E S E N T HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court : - Heard the parties.

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Though notice has validly been served upon the respondent No.3 yet no one turns on behalf of the respondent No.3 in spite of repeated calls. Hence, this appeal is heard and disposed of ex-parte against the

M.A. No.138 of 2020

respondent No.3.

This appeal, under Section 173 (1) of the Motor Vehicles Act, 1988 has been preferred against the Judgment and Award dated 14.11.2019 passed by Learned District Judge-II-cum-M.A.C.T, Giridih in Motor Accident Claim Case No.57 of 2018 whereby and where under the learned Tribunal has awarded a compensation of Rs.10,52,273/- to the claimants with simple interest thereon @ 6% per annum from the date of filing of the claim petition i.e. on 06.10.2018 to till its realization and if the Insurance Company fails to pay compensation within sixty days then interest @ 9% per annum is to be paid.

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The brief facts of this case is that on 07.04.2015 while the injured/claimant- Manoj Kumar Ram was riding a motorcycle with his wife in the pillion, the offending tractor bearing registration No. JH-12D2671 being rashly and negligently driven; dashed the motorcycle of the claimant by which the claimant fell down and sustained grievous injuries in his right leg and left hand. He was taken to hospital at Tilaiya and thereafter referred to Dhanbad where he was admitted to a Clinic under the treatment of doctor. The claimant remained under treatment as indoor patient from 08.04.2015 to 26.04.2015 but again he was referred to a Superspeciality Hospital at Ranchi for better treatment but even then he became 45% permanently disabled. The disability certificate was issued in his favour by Disability Board of Sadar Hospital, Giridih. He was also admitted to Sun Shine Hospital, Secunderabad. In connection with the said accident, Tilaiya P.S. Case No. 93 of 2015 was registered against the driver of the offending tractor involving the offences punishable under Sections 279 and 338 of the Indian Penal Code and after investigation, police submitted charge-sheet against the driver. It is stated that the claimant was running a fruit juice shop at Hyderabad and was earning Rs.15,000/- per month from the said shop. Besides, he was doing agricultural work and was aged 36 years at the time of accident.

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The opposite party No.1- owner of the offending vehicle appeared and filed written statement and he challenged the maintainability of the claim application on various technical grounds. Further, it was pleaded by the opposite party No.1 that he purchased the offending vehicle on finance by the finance company but when he could not pay the

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M.A. No.138 of 2020

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installment, the agent of the finance company seized the tractor and thereafter the opposite party No.1 has no knowledge about the tractor rather the Financer has given the said tractor to one Rajesh Yadav- the opposite party No.2 who was driving the tractor and met with the accident and police has submitted charge-sheet against him. Hence, the opposite party No.1 being not the owner of the tractor is not liable to pay the compensation amount.

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The opposite party No.2- driver of the offending tractor did not appear in the case and was set ex-parte .

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The opposite party No.3- M/s Future Generali India Insurance Company Limited also challenged the maintainability of the claim petition on various technical grounds and pleaded that the accident took place because of 100% contributory negligence on the part of the claimant. The disability suffered by the claimant was a temporary one and by the time of filing of the written-statement, the claimant was perfectly normal.

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The learned tribunal, on the basis of rival pleadings of the parties, framed the following seven issues:-

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“Issue No.1:Is the suit maintainable in its present form? Issue No.2:Is there any cause of action for the suit? Issue No.3:Whether the accident took place on 07.04.2015 at about 03:00 P.M. due to rash and negligent driving of the driver of the offending vehicle i.e. Tractor No. JH-12D-2671 and the driver of the alleged vehicle had valid and effective driving licence at the time of occurrence?

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Issue No.4:Was the offending vehicle insured with the O.P. No.3, Future Genrali India Insurance Company Limited on the date and time of accident?

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Issue No.5:Whether there was contributory negligence of drivers of both the vehicles i.e. Tractor No. JH-12D-2671 and alleged Motorcycle No. JH-11H-6250?

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Issue No.6:Is the claimant entitled for compensation and if so, for what amount?

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Issue No.7:To what relief or reliefs the Claimant is entitled to?

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In support of their case, the claimants altogether examined five witnesses. P.W.1- Pawan Kumar Ram is an eye-witness to the occurrence. He has stated about the accident having been caused by the rash and negligent driving of the driver of the offending truck and the claimant being admitted to hospital and 45% permanently disabled. In his crossexamination, he has stated that he is the brother of Manoj Kumr Ram by

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M.A. No.138 of 2020

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village relationship. Police did not record his statement.

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P.W.2- Sandeep Kumar Ram is another eye-witness to the occurrence and he has deposed the same facts as deposed by the P.W.1 and he has also answered the same questions put to him in his crossexamination, in the same manner as PW-1.

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P.W.3- Renu Devi is the wife of the claimant and she is also an eyewitness to the occurrence. She has also stated in the same manner as stated by the P.Ws.1 and 2 and in her cross-examination she has denied the suggestion of the opposite party that her husband was not having driving license.

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P.W.4- Manoj Kumar Ram is the claimant himself. He has also stated about the accident and his treatment in different hospitals. He is not able to work. He has proved the documents. He was having driving license which was valid up to 2026.

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P.W.5- Dr. Balanand Jha has proved the disability certificate of the injured which has been marked as Ext. 6 and the signature thereon has been marked as Ext. 6/1. In his cross-examination, it has been stated that Manoj Kumar Ram was examined by the Medical Board and further check-up of the claimant was to take place three years after his first examination and the three years is to be calculated from the date of issue of the Permanent Disability Certificate. There is possibility of improvement in the wound of the patient. The claimant is not able to carry on his business of juice selling by standing though he can do so by sitting.

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Besides the oral testimony, the claimant proved the documents which have been marked as Ext. 1 to 13.

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The opposite parties did not adduced any evidence either oral or documentary.

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The learned tribunal first took up issue Nos.(3), (4) and (5) together and after considering the materials available in the record, came to the conclusion that the claimant got seriously injured in motorcycle accident due to rash and negligent driving of the driver of the offending tractor. The F.I.R. has been lodged against the driver of the offending tractor and after investigation, police submitted charge-sheet only against the driver of the offending vehicle namely Rajesh Yadav. The driver of the offending

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M.A. No.138 of 2020

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vehicle was having valid and effective driving license at the time of accident. The vehicle was insured with the opposite party No.3/appellant- M/s Future Generali India Insurance Company Limited. The driver of the offending vehicle was driving the vehicle rashly and negligently at the time of accident. There was no fault on the part of the claimant. Hence, it is not a case of contributory negligence. The tribunal further consider that there is nothing in the record to show that there is any violation of the terms and conditions of the insurance policy issued by opposite party No.3- M/s Future Generali India Insurance Company Limited; in respect of the offending vehicle. Hence, opposite party No.3M/s Future Generali India Insurance Company Limited is liable to indemnify the insured owner of the offending vehicle and decided all the three issues in favour of the claimant and against the opposite party No.3M/s Future Generali India Insurance Company Limited.

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The learned tribunal next took up issue Nos.(6) and (7) together and considering the materials available in the record, arrived at the total compensation of Rs.10,52,273/- as indicate below:-

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(I) Expenses relating to treatment, hospitalization, medicines, transportation, nursing, food, and miscellaneous expenditure:

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Rs.9,72,273/-

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(II) Loss of earning during the period of treatment, and loss of future earning on account of temporary disability: Rs.30,000/-

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(III) Damages for pain, suffering and trauma as a consequence of the injury: Rs.50,000/-

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(IV) Loss of amenities and Loss of expectation of life:

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NIL

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Total:Rs.10,52,273/-

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Lastly, the learned tribunal took up issue Nos.(1) and (2) together and in view of the discussions made in the judgment, it was held that the claimant has valid cause of action for the claim application and the claim application is maintainable and directed the Insurance Company to pay the said compensation amount as already indicated above.

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Mr. Alok Lal- learned counsel for the appellant submits that the learned tribunal erred by awarding the claim of Rs.10,52,273/- to the claimant. The learned tribunal misdirected itself in so far as directing the

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M.A. No.138 of 2020

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appellant- Insurance Company to pay the awarded amount without appreciating the provisions of the Act. It is next submitted that the learned tribunal failed to consider that the accident was caused by some unknown vehicle as the registration number of the vehicle has not been mentioned in the F.I.R. and the vehicle insured by the appellant was implanted in collusion with the police officers for getting the compensation. It is next submitted that the learned tribunal erred in awarding interest at enhanced rate of @ 9% per annum within the stipulated time for filing an appeal and without any rhyme or reason the same is not sustainable in law. It is then submitted that the learned tribunal with an erroneous approach has awarded Rs.9,72,273/-. Hence, it is submitted that the judgment and award passed by the learned tribunal be modified by reducing the amount of compensation.

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Learned counsel for the respondent- claimant on the other hand defends the impugned judgment and award passed by the learned tribunal and submits that there is no question of implanting of any offending tractor and it is the offending tractor because of rash and negligent driving of which the accident took place. It is next submitted that the merely because in the F.I.R., the registration number of the tractor has not been mentioned; the same will not be a ground to come to a conclusion that the tractor was not involved in the accident though the police after due investigation has submitted charge-sheet against the driver of the offending vehicle. Hence, it is submitted that this appeal, being without any merit, be dismissed.

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Learned counsel for the respondent No.2 also defends the impugned judgment and award and submits that in any case since undisputedly the respondent No.2/opposite party No.1 was not the owner of the offending vehicle as the same was auctioned sold to the respondent No.2/opposite party No.1. Hence, the opposite party No.2 is no way concerned nor has any liability to pay the compensation whatsoever. Hence, it is submitted that this appeal, being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the following point crop up for determination in this appeal:-

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“Whether the learned tribunal has erroneously come to the conclusion that there was no contributory negligence on the part of

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M.A. No.138 of 2020

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the driver of the motorcycle being the claimant and the impugned judgment and award is liable to be set aside?”

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Now, coming to the facts of the case; true it is that in the F.I.R., it has been mentioned that at the time of accident, there was no registration number plate in the offending tractor. But from perusal of the chargesheet submitted by the police which has been marked as Ext. 3 it is crystal clear that the same has been submitted against the opposite party No.2driver of the vehicle. So, the learned tribunal has not committed any illegality by holding that the offending tractor bearing registration No. JH-12D-2671 has caused the accident more so because there is absolutely no evidence adduced by the opposite party No.3- appellant- Insurance Company to substantiate its claim of the said tractor being implanted with some other vehicle; which has caused the accident. Nor the insurance company has pleaded or proved that any other vehicle with any other specification caused the accident. Hence, this Court do not find any merit in the claim of the learned counsel for the appellant.

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So far as the contention of the appellant regarding the quantum of compensation is concerned, perusal of the record reveals that the under the heading expenses related to treatment, hospitalization, medicines, transportation, nursing, food, and miscellaneous expenditure, Rs.9,72,273/- has been awarded. The quantum has been arrived at on the basis of the documents which has been marked Ext. 7 series to 13. The learned tribunal has not considered the bills regarding cardiology treatment of the claimant and has considered the bills only relating to his treatment, hospitalization, medicines etc. spent in treatment of fracture of leg and the said amount came out to Rs.9,72,273/-. Hence, this Court do not find any illegality in the quantification of compensation under the heading treatment, hospitalization, medicines, transportation, nursing, food, and miscellaneous expenditure of Rs.9,72,273/-.

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So far as the loss of earning during the period of treatment is concerned, keeping in view the considerable period of time when the claimant was treated as indoor patient, a sum of Rs.30,000/- awarded by the learned tribunal in this head, appears to be proper and the only other compensation awarded is that regarding damages for pain, suffering and trauma as a consequence of the injury and Rs.50,000/- has been awarded under this head. This Court keeping in view the long treatment

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M.A. No.138 of 2020

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undergone by the claimant at various hospitals; is of the considered view that the said amount of Rs.50,000/- is reasonable and the learned tribunal has not committed any illegality in arriving at the quantum of compensation.

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So far as penal interest is concerned, true it is that no reason has been assigned by the learned tribunal as to why within the period of limitation of filing the appeal of 90 days, the learned tribunal has passed an order of enhanced interest. It is a settled principle of law that such amount of penal interest is not sustainable in law. Hence, this portion of the order regarding awarding of the penal interest @ 9% per annum being not sustainable in law; is set aside.

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Hence, it is held that the impugned judgment and the award be modified only in respect of the penal interest of 9% in case of default of the payment of the compensation amount. The sole point for determination is answered accordingly.

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In view of the discussions made above, the impugned judgment and award is modified by directing the appellant/opposite party No.3Insurance Company to pay a sum of Rs.10,52,273/- with simple interest thereon @ 6% per annum from the date of claim i.e. on 06.10.2018 till the date of its realization.

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The appeal is disposed of on contest but under the circumstances without any costs.

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Let a copy of this judgment along with the lower court records be sent to the learned tribunal concerned forthwith.

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The Registrar General of this Court is directed to remit the statutory amount of Rs.25,000/-, if any, deposited to the learned tribunal concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 08^th of August, 2023 AFR/ Animesh

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Future Generali India Insurance Co. Ltd. v. Manoj Kumar Ram

Case brief

What is this about?

What did the court decide?

Future Generali India Insurance Co. Ltd. v. Manoj Kumar Ram

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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