Smt Kamala Devi Alias Kamala Rani Singha Roy And Anr. Vs Ms Prakash Construction Company And Anr.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Misc. Appeal No. 231 of 2016

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Smt. Kamala Devi @ Kamala Rani Singha Roy, W/o Late Manindra Nath Singha Roy

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Shreya Singha Roy (minor), D/o Late Suvabroto Singha Roy Both R/o C/o Smt. Indrani Ghosh, Qr. No.C-III/82, Karmik Nagar, P.O. & P.S. Saraidhela, District- Dhanbad and appellant No.2 being Minor represented by her Natural Guardian being grand-mother i.e. appellant no.1 .... .... ….

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Appellants

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Versus

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M/s Prakash Construction Company, Sardar Society, Visnagar, District- Mehsana, Gujarat, PIN 384002.

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National Insurance Company Limited, Mehsana Divisional Office, 1^st Floor, Vijay Chambers, State High Way, Mehsana, District- Mehsana, Gujarat. .... .... .... Respondents

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With

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Misc. Appeal No. 225 of 2016

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National Insurance Company Limited, Mehsana Divisional Office, 1^st Floor, Vijay Chambers, State High Way, Mehsana, District- Mehsana, Gujarat. .... .... …. Appellants

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Versus

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Kamala Devi @ Kamala Rani Singha Roy, W/o Late Manindra Nath Singha Roy

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Shreya Singha Roy (minor), D/o Late Suvabroto Singha Roy Both R/o C/o Smt. Indrani Ghosh, Qr. No.C-III/82, Karmik Nagar, P.O. ISM, P.S. Saraidhela, District- Dhanbad and appellant No.2 being Minor represented by her Natural Guardian being grand-mother i.e. appellant no.1 .... .... .... Respondents

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With

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Misc. Appeal No.86 of 2017

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Kamala Rani Singharay @ Kamala Devi, W/o Late Manindra Singharay

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Shreya Singharay (minor), D/o Late Suvotroto Singharay Both R/o C/o Smt. Indrani Ghosh, Qr. No.C-III/82, Karmik Nagar, P.O. ISM, P.S. Saraidhela, District- Dhanbad and appellant No.2 being Minor represented by her Natural Guardian being grand- mother i.e. appellant no.1 .... .... …. Appellants

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Versus

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1.M/s Prakash Construction Co., Sardar Society, Visnagar, DistrictMehsana, Gujarat, PIN 384002.

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2.The Divisional Manager, National Insurance Company Limited, Divisional Office, Dhanbad, B. P. Agarwalal Building, Dhansar, Dhanbad.

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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant(s) : Mr. Karbir, Advocate Mr. Soumitra Baroi, Advocate Mr. Alok Lal, Advocate Mr. Shekhar Pd. Sinha, Advocate For the Resp.(s)/I.C. : Mr. Alok Lal, Advocate

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For the Res.-Owner : Mr. A. K. Sahani, Advocate Mr. Ajit Kumar, Advocate

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15/ 03.03.2025 . Heard, learned counsel for the parties.

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1. All these three appeals arise out of judgments passed in Title (M.V.) Suit No. 187 of 2005 and Title (M.V.) Suit No. 168 of 2014. Since both these claim cases arise out of the same accident, therefore, they are heard together and disposed of by common order.

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2. 10.4.2005 was the fateful day when the accident took place between Maruti Car No. UMC 4670 and Dumper bearing registration no. GJ-2Y4205 in which the occupants of the maruti car, namely, Suvabrato Singha Roy his wife Koravi Singha Roy and one relative Pumpa Roy died. Daughter of Suvabrato Singha Roy, namely, Shreya Singha Roy who was a minor had a providential escape.

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3. Title (M.V.) Suit No. 187 of 2005 was filed by Kamala Devi @ Kamala Rani Singha Roy, the mother of Suvabrato Singha Roy along with her minor grand- daughter Shreya Singha Roy under section 166 of the M.V. Act for compensation for the death of Suvabrato Singha Roy and separate claim case being Title (M.V.) Suit No. 168 of 2014 was filed for the death of Koravi Singha Roy.

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4. In Title (M.V.) Suit No. 187 of 2005 a compensation of Rs. 5 lakh 18 Thousand along with interest @ 6% from the date of passing of the order was allowed in favour of the claimants for the death of Koravi Singha Roy and no order was passed with respect to the death of Suvabrato Singha Roy.

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5. Title (M.V.) Suit No. 168 of 2014 filed for claim against the death of Koravi Singh Roy, was held to be not maintainable in view of the judgment passed in Title (M.V.) Suit No. 187 of 2005 and MA No. 86 of 2017 has been filed against this order.

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6. MA No. 231 of 2016 has been filed against the rejection of the claim application with respect to the death of Suvabrato Singha Roy by the claimants and MA No. 225 of 2016 has been preferred by the National Insurance Company against the award of compensation in Title (M.V.) Suit No.187 of 2005.

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7. It is argued by the learned counsel for the claimant in MA No. 231 of 2016 and MA No. 225 of 2016, and rightly so that it was an error of record on

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the part of the tribunal to have allowed the claim application with respect to Koravi Singha Roy.

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8. Further, the Tribunal completely ignored other evidences on record while rejecting the claim application for the death with respect to Suvabrato Singha Roy, only on the ground that post-mortem examination report of the deceased Suvabrato Singha Roy was not produced.

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9. The accident took place on 10.4.2005 and immediately thereafter FIR being Barun PS Case No. 49 of 2005 (Ext.4) was lodged on 10.4.2005 under sections 279,304(A) IPC against the driver of the Dumper bearing no. GJ-2Y-4205. After investigation, charge-sheet (Ext.-5) was submitted against the driver of the offending vehicle for causing death in the motor vehicle accident due to rash and negligent driving. It has come in the fardbeyan that Suvabrato Singha Roy had sustained fatal injury and died in the accident. The Xerox copy of the Inquest Report [Ext.7] was also filed with regard to inquest report of Suvabrato Singha Roy. Furthermore, the defendants nowhere disputed the death of Suvabrato Singha Roy in the accident. There has not been any cross-examination on the point on which PW-1 to PW-5 have supported the case of the claimants regarding accidental death of Suvabrato Singha Roy.

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10. Under the circumstance, I find force in the argument advanced on behalf of the appellants that the tribunal committed an error in rejecting the claim application only on the ground that the post-mortem examination report of Suvabrato Singha Roy was not adduced in evidence. Claim cases are not criminal trial, they are in the form of inquiry where the facts are to be proved on the basis of preponderance of probability. The finding of Issue No.3 regarding accidental death of Suvabrato Singha Roy by tribunal is not sustainable and is answered in favour of the defendants.

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11. So far claimants, Kamala Devi @ Kamala Devi Singha Roy and anr. in M. A. No.231 of 2016 [Title (M.V) Suit No.187 of 2005] is concerned, it is argued by the learned counsel for the appellant-Insurance Company, and rightly so, that the impugned Award of compensation in favour of the claimant(s) for the death of deceased (Karabi @ Koravi Singharay) in M. A. No.231 of 2016 [Title (M.V) Suit No.187 of 2005] was an error of record, as in the said claim case, death of deceased (Karabi @ Koravi Singharay)

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was not an issue as it was filed by the claimant(s) for the death of deceased (Suvabrato Singha Roy).

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12. It is further argued by the learned counsel for the appellant- Insurance company that the learned Tribunal has recorded a finding that there was no fault with regard to Driving licence produced or the permit, therefore, there was breach of the insurance policy and as such, right of recovery has been given against the owner of the offending vehicle. However, it is contended that as a matter of fact, there was no policy on the said date of accident as the cheque that was presented before the Banker for payment of premium to the Insurance Company, was dishonoured due to insufficient fund and subsequently it was cancelled.

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13. It is also argued that this is a case where the learned Tribunal has committed an error of record, therefore, for the ends of justice, this case needs to be remanded to the learned Tribunal so that the Insurance Company will have right to plead and lead evidence with regard to income of deceased (Suvabrato Singha Roy) .

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14. So far the argument advanced on behalf of the Insurance Company that in view of the error of record committed by the learned Tribunal, this is a case where the accident took place almost two decades ago on 10.04.2005 and the claim was finally decided in the year 2015. At this stage, it will not serve the ends of justice to remand the case to the Tribunal. Furthe, this Court has ample power to adjudicate on the issues raised under Order 41 R-23 A and 24 of the CPC.

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15. So far the defence of the Insurance Company is concerned, they had ample opportunity at the stage of the enquiry by the Tribunal to plead and lead evidence against the claim case preferred by claimant(s) with respect to death of deceased (Suvabrato Singha Roy) and on the basis of the pleadings and evidence, the claim will be decided by this Court which is acting as the First Court of Appeal.

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16. There is blatant error on the part of the Tribunal in awarding compensation for the death of deceased (Karabi @ Koravi Singharay) in Title (M.V) Suit No.187 of 2005, therefore, the order/ judgment passed in this case being not sustainable is set aside.

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17. Claimants are entitled to get compensation in Title (M.V) Suit No.187 of 2005, for the death of deceased (Suvabrato Singha Roy), who was aged

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about 40 years at the time of accident. Salary certificate and employment agreement letter issued in favour of the deceased (Suvabrato Singha Roy) from EXL Service and Pay Slip have been adduced into evidence and marked as Ext.1 to 3, from which it can be concluded that the monthly income of the deceased (Suvabrato Singha Roy) at the time of accident was to be Rs.19,389/-. The deceased left behind two claimants/ dependents. Finally, the compensation will work out as under :-

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Annual income of the deceased taking Rs.19,389/- as monthly income + 30% as Future prospect	Rs.19,389/-X 12 = Rs.2,32,668/- + 30% of Rs.2,32,668/- as Future prospect	Rs.2,32,668/- +Rs.69,800.4/- =Rs.3,02,468.2/=
Annual Dependency after deducting 1/3^rd	Rs.3,02,468.2/- Minus Rs.1,00,822.73/-	= Rs.2,01,645.78
Multiplier taking 40 years as the age of the deceased at the time of the accident	15	Rs.2,01,645.78 X 15 = Rs.30,24,685.50/-
Loss of Estate, Funeral Expenses and Loss of Consortium	Rs.84,000/-	Rs.84,000/-
	Total	Rs.31,08,685.50/-

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18. So far the liability of the Insurance Company is concerned, the Insurance Company has adduced in evidence i.e. Ext.A to K from which it appears that the Insurance Policy No.170300/31/15/6300003931 was issued on the basis of Cheque No.95100 amounting to Rs.37,174/- deposited on 02.04.2005. As per the written statement and Ext.D, Bank of India returned the same vide Memo dated 12.04.2005 regarding dishonour of the cheque for insufficiency of the fund for which the letter was issued by the National Insurance Company Limited regarding cancellation of the Insurance Policy (Ext.F) on 18.04.2005. As such, these evidences go on to show that when the accident took place on 10.04.2005 and by that time, the Insurance policy was not cancelled and, therefore, the vehicle was under the insurance cover by the National Insurance Company Limited, as such,, there is no error so far fixing the liability and also right to recovery is concerned.

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19. The Insurance Company is liable to pay the aforesaid compensation amount along with interest at the rate of 6% per annum from the date of filing of the claim application till its realization to the claimants in Title (M.V) Suit No.187 of 2005, for the death of Suvrato Sinhga Roy. The payment shall be made within a month from the date of this order by the Insurance Company to the learned Tribunal and thereafter the Tribunal will disburse the same as per the terms fixed by it to the claimants within two weeks.

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20. M. A. No.231 of 2016 is allowed .

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21. Further, M.A. No.225 of 2016 stands disposed of.

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22. Registry is directed to remit the statutory amount, if any deposited by the Insurance Company to the Tribunal, at the time of preferring the Misc. Appeal so as to adjust /disburse to the claimant(s).

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M.A. No.86 of 2017

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23. The aforesaid Misc. Appeal has been preferred by the claimant(s) for enhancement of the compensation as awarded in Title (M.V.) Suit No. 168 of 2014 for the death of deceased (Karabi @ Koravi Singharay) in the motor vehicle accident.

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24. It is argued by learned counsel for the owner/ Respondent No.1 that the driver was not the party before the learned Tribunal, but the learned Tribunal has wrongly recorded in the judgment at Para-9 that the owner had not appeared in this case.

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25. It is argued by the learned counsel on behalf of the claimants that the claim was not dismissed on merits rather it was dismissed for the reason that in Title (M.V) Suit No.187 of 2005, learned Tribunal instead of allowing claim with respect to death of deceased (Suvabrato Singha Roy) had allowed the claim of the claimants with respect to the deceased (Karabi @ Koravi Singharay.

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26. It is argued that the deceased was aged about 30 years as Ext.5 (Postmortem examination report) and she was a home maker and in view of the ratio laid down by the Apex Court in the case of Rajendra Singh vs. National Assurance Company Ltd. (2020) 7 SCC 256 final compensation amount is awarded taking Rs.5,000/- as monthly income, 40% future prospect and Rs.84,000/- as loss of consortium and the final compensation amount will work out as under :-

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Annual income of the deceased taking Rs.5,000/- as monthly income + 40% as Future prospect	Rs.5,000/- X 12 = Rs.60,000/- + Rs.24,000/- [ 40% of Rs.60,000 as Future prospect]	= Rs.84,000/-
Annual Dependency after deducting 1/3^rd	Rs.84,000/- Minus Rs.28,000/-	= Rs.56,000/-
Multiplier taking 30 years as the age of the deceased at the time of the accident	17	Rs.56,000/- X 17=Rs.9,52,000/-
Loss of Estate, Funeral Expenses and Loss of Consortium	Rs.84,000/-	Rs.84,000/-
	Total	Rs.10,36,000/-

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27. The Respondent- Insurance Company is liable to pay the aforesaid compensation amount along with interest at the rate of 6% per annum from the date of filing of the claim application till its realization. The payment shall be made within a month from the date of this order by the Insurance Company to the learned Tribunal and thereafter the Tribunal will disburse the same as per the terms fixed to the claimants within two weeks.

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28. It goes without saying that the amount already paid shall be deducted in final compensation amount.

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Misc. Appeal No.86 of 2017 is accordingly, allowed.

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Pending I.A(s), if any, stands disposed of.

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( Gautam Kumar Choudhary, J. )

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Sandeep/

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Smt Kamala Devi Alias Kamala Rani Singha Roy And Anr. v. Ms Prakash Construction Company And Anr.

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Smt Kamala Devi Alias Kamala Rani Singha Roy And Anr. v. Ms Prakash Construction Company And Anr.

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