Partly allowed

The Divisional Manager The Oriental Insurance Company Ltd. Represented Thr Its Sr Divisional Manager v. Gugati Devi And Ors.

Jharkhand HC13 Jun 2024MA/577/2017

Case brief

AI extract

What is this about?

Insurance appeals against MACT awards in two fatal road-accident claims arising from one accident on 03.02.2009. The High Court upheld the Tribunal's finding that the insured truck JH 10Q 0298 caused the accident, rejecting the substitution allegation. Following Pranay Shetty, it reduced heads of compensation to Rs.70,000 (loss of estate Rs.15,000, consortium Rs.30,000, funeral Rs.15,000), added 40% future prospects for deceaseds aged 37 and 35, restricted interest to 7.5% per annum per Dharampal, and disallowed penal interest as not provided by statute.

What the court decided

AI extract

The Divisional Manager The Oriental Insurance Company Ltd… — Insurance | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND, RANCHI M.A. No. 577 of 2017

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The Divisional Manager, The Oriental Insurance Company Ltd. .... Appellant

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-- Versus -- 1. Gugati Devi

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Sangita Kumari

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Ramu Kumar Mahato

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Bishnu Kumar Mahato

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Daulat Mahato 6. Khublal Mahato .... Respondents

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With

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M.A. No. 580 of 2017

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The Divisional Manager, The Oriental Insurance Company Ltd. …. Appellant -- Versus --

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Shakuntala Devi 2. Dhiren Kumar Mahto 3. Kiran Kumar Mahto 4. Chhutu Kumar Mahto 5. Daulat Mahto 6. Khublal Mahto ….. Respondents

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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--- M.A. No. 577 of 2017 with M.A. No. 580 of 2017 For the Appellant :- Mr. Ganesh C. Jha, Advocate For the Respondent No.5 & 6 :- Mr. Rajiv Kr. Karan, Advocate :- Mr. T.K. Mahato, Advocate For the Claimants :- Mr. Rajiv Kr. Shekhar, Advocate :- Mr. Ashok Kr. Pandey, Advocate ----

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08 /13.06.2024 Heard learned counsel appearing for the appellant, learned

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counsel appearing for the claimants No.1 to 4 and learned counsel appearing for the respondent No.5 and 6 who are the owner and driver respectively.

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2. The appellant, The Divisional Manager, The Oriental Insurance

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Company Ltd., being aggrieved and dissatisfied with the judgment/award dated 21.02.2017 passed by learned Principal District Judge-cum-P.O. – M.A.C.T., Bokaro in T.M.V. Claim Case No.33 of 2009 whereby the learned Tribunal awarded a sum of Rs.7,57,000/- to the claimants along with the interest @ 9% per annum from the date of application i.e. 12.05.2009 till realization within 4 months from the date of judgment/award, payable by opposite party No.1/Owner/RespondentNo.5, opposite party No.2/Driver/Respondent No.6 and opposite party No.3/appellant insurance company failing which penal interest @ 11% per annum was directed to be realized.

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3. Mr. Ganesh C. Jha, learned counsel appearing for the appellants in M.A. No.577 of 2017 submits that the claim application was filed under Section 166 of the Motor Vehicle Act, 1988 on behalf of the claimants namely Gugati Devi, Sangita Kumari, Ramu Kumar Mahato and Bishnu Kumar Mahato against opposite party No.1 to 3 namely Daulat Mahato, Khublal Mahato against the Oriental Insurance Company Ltd. respectively for grant of compensation of Rs.6,32,000/- on account of death of one Gokul Mahato who died in a road accident on 03.02.2009. He submits that it was disclosed that the Claimant No.1 Gugati Devi, Claimant No.2 Sangita Kumari, Claimant No.3 Ramu Kumar Mahato and Claimant No.4 Bishnu Kumar Mahato, all are wife, daughter and sons of deceased Gokul Mahato.

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4. Mr. Ganesh C. Jha, learned counsel appearing for the appellant further submits that M.A. No.580 of 2017 has been filed for the second --2--

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M.A No. 577 of 2017 with M.A No. 580 of 2017

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death and by the said award itself both the claim applications were decided and in view of that both these cases have been tagged together by a co-ordinate Bench of this Court by order dated 16.11.2022.

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5. Mr. Ganesh C. Jha, learned counsel appearing for the appellants further submits in M.A. No.580 of 2017 is concerned, similar judgment/award has been passed with regard to the death of one Yugal Mahato. He submits that the family members of the Yugal Mahato instituted the claim under Section 166 of the Motor Vehicle Act on behalf of the claimants namely Shakuntala Devi, Dhiren Kumar Mahto, Kiran Kumar Mahto, Chhutu Kumar Mahto against the O.P. No.1 and 2 namely Daulat Mahto and Khublal Mahto and O.P. No.3 i.e., the Oriental Insurance Co. Ltd. respectively for grant of compensation of Rs.6,50,000/- on account of death of Yugal Mahato who died in a road accident on 03.02.2009. He further submits that the claimant No.1, Shakuntala Devi, Claimant No.2 Dhiren Kumar Mahto, Claimant No.3 Kiran Kumar Mahto and Claimant No.4 Chhutu Kumar Mahto, all are wife and minor sons of deceased Yugal Mahto.

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6. He submits that it was the case of the claimants before the Tribunal that on 03.02.2009 while the deceased Yugal Mahto, along with his villager Gokul Mahato was returning to his house by motorcycle bearing Registration No. BR 20E 8173 from Taratand and at about 6:00 hours in the evening reached near Bandhjorba Bridge one truck No. bearing Registration No. JH 02D 5798 coming from Phusro/opposite side rashly and negligently dashed the motorcycle, due to which Gokul --3-- M.A No. 577 of 2017 with M.A No. 580 of 2017

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Mahato and Yugal Mahato had died on the spot. He submits that it was alleged that the accident took place due to rash and negligent driving by the driver of the truck, thereafter the case was instituted. He further submits that a sum of Rs.7,57,000/- was awarded by the Tribunal in both the deaths to the family members of the deceased which is not in accordance with law. He challenged the award on the ground that another vehicle was said to be changed in the investigation in connivance with the claimants and the Investigating Officer. According to him, the vehicle which was met with the accident, it’s number was JH 02D 5798. He further submits that since that vehicle was not insured, another vehicle was replaced being JH 10Q 0298. He further submits that it was manipulated as owner of both the vehicle was one person only. He submits that the police seized the vehicle being JH 02D 5798. He further submits that the appellant has also laid the evidence on this point and the learned Tribunal has erroneously given the finding against the insurance company.

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7. The second point was taken by Mr. Jha with regard to the award and submits that so far the compensation with regard to the funeral expenses, loss of love and affection to children, loss of estate and loss of consortium are concerned it is not tenable as erroneously, these figures are arrived by the learned Tribunal which is against the mandate of Hon’ble Supreme Court in the case of National Insurance Company Limited versus Pranay Shetty and Others reported in (2017) 16

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SCC 680 and the last point was argued by Mr. Jha with regard to the --4--

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interest to the tune of 9%, he submits that in view of Dharampal and Others versus U.P. State Road Transport Corporation reported

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in(2008) 12 SCC 208 , the interest @ 7.5% from the date of claim of the application to the date of payment is applicable, however, the Tribunal erred in granting the said @ 9% per annum. He submits that the penal interest cannot be a subject matter in a case arising out of the Motor Vehicle Act. On these grounds, he submits that the award may kindly be set aside.

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8. Learned counsel appearing for the respondent No.5 and 6, who is the owner and driver respectively, submits that the learned Tribunal has dealt with all aspects of the matter with regard to the vehicle in question and the said argument of the learned counsel for the appellant is not tenable as cogent finding has been given. After full discussion, the learned Tribunal has come to a finding that the vehicle which was met in the accident was JH 10Q 0298. He submits that in investigation, several witnesses have supported this aspect of the matter in view of that the said argument of the learned counsel appearing for the appellant is not tenable.

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9. Learned counsel appearing for the claimants submits that the very meagre amount has been awarded by the Tribunal and the same may kindly be enhanced. He submits that it is an admitted position that two deaths are occurred and in view of that this Court may not interfere with the award. According to him, the learned Tribunal has not awarded any amount on the future prospect and in view of that claimants are --5--

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entitled for that. He submits that the award may kindly be modified in favour of the claimants and the said amount may kindly be enhanced.

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10. It is an admitted position that two deaths occurred on 03.02.2009 pursuant to rash and negligent driving by the driver of the truck in question. The learned Tribunal has framed the issues in paragraph No.6 of the award and dealt with each of the issues separately. The issue No.3 is with regard to the vehicle in question and in deciding the said issue, he has considered the evidence of claimant No.1 as well as the cross examination of O.P. No.1, 2 and 3 and C.W. 2, C.W. 3, C.W. 4 and C.W. 5 and has come to the conclusion that these witnesses have supported the claim and they have also stated that the vehicle in question was JH 10Q 0298 in view of that he has decided the said issue in favour of the claimants and against the opposite parties (Insurance Co.). Thus, the Court finds that there is no illegality in the said finding as that was also came in the investigation by the Investigating Officer and the independent witnesses have also supported the same. Accordingly, that point taken by Mr. Jha, learned counsel for the appellant, is negated.

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11. So far the second point with regard to the compensation on the point of loss of estate, loss of consortium and funeral expenses is concerned, there is some force in the argument of the learned counsel appearing for the appellant. In the case of National Insurance

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Company Limited versus Pranay Shetty and Others reported in (2017) 16 SCC 680 , it was held that a loss of estate will be 15,000/-

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loss of consortium will be 40,000/- funeral expenses Rs.15,000/- with 10% increase in every three years whereas the learned Tribunal has awarded the amount of funeral expenses Rs.25,000/- loss of consortium Rs. 1 lakh and loss of estate Rs.1 lakh and loss of love and affection to children Rs.1 lakh which comes to Rs.3,25,000/-. In view of that it appears that the said amount is required to be modified as such the claimants will be entitled on the point of loss of estate Rs.15,000/-, consortium 30,000/- funeral expenses 15,000/- which comes to Rs.70,000/-.

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12. In view of the said judgment, the future prospect is required to be provided to the claimants and the age of the deceased is 37 years and 35 years respectively. In view of that they are entitled for 40% of the monthly income in the light of the said judgment as such the 40% will be added on the future prospect with regard to both the deceased.

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13. In the light of Dharampal and Others versus U.P. State Road Transport Corporation reported in (2008) 12 SCC 208 , the interest is required to be restricted @ 7.5% per annum from the date of claim of application to the date of payment as such the interest part is modified to the above extent. The penal interest is in the light of the Motor Vehicle Act is not in the statute and in view of that the penal interest cannot be allowed.

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14. In view of the above, the award is modified to the effect that the claimants will be entitled on the point of loss of estate, loss of consortium, funeral expenses to the tune of Rs.70,000/-.

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15. Future prospect will be added in the light of the National Insurance Company Limited versus Pranay Shetty and Others

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reported in (2017) 16 SCC 680 , the interest will be @ 7.5% per annum from the date of claim of application to the date of payment.

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16. The claimants will not be entitled for the penal interest and the

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award dated 21.02.2017 is modified to the above extent.

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17. These appeals are allowed in part and disposed of.

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18. There is no need of saying for deduction of one forth in the light of the Pranay Shetty case as the tribunal has already taken care of that aspect of the matter in the award.

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19. The statutory amount deposited by the appellant company will be remitted back to the learned Tribunal which will be utilized in satisfying of the said award.

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20. The insurance company will comply the said award within four weeks.

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(Sanjay Kumar Dwivedi, J.)

Sangam/

A.F.R.

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