Subhas Singh Chaudhary vs Sarita Devi And Ors

Heard, learned counsel for the appellant and learned counsel for the respondents.

The appellant has preferred this appeal against the award dated 27.01.2017 passed by learned District Judge-XI-cum-MACT Judge, Dhanbad,

whereby the claimants namely, Sarita Devi, W/o Shukra Soren and Amita Kumari, D/o Late Shukra Soren have been awarded compensation to the

tune of Rs.9,73,872/- within stipulated period with simple interest @ 6% per annum.

Learned counsel for the appellant has submitted that the present appeal arising out of a claim case, where two persons namely, Shukra Soren and

Krishna Besra died on spot in a motor accident. Both the deceased- Shukra Soren and Krishna Besra along with Ram Chandra Murmu were triple

riders on motorcycle bearing registration No.JH 21A-0288, which was hit by a dumper bearing registration No.JH 10U-7811, driven rashly and

negligently by the driver on 06.01.2016 at 01:30 P.M. Deceased- Krishna Besra aged about 22 years was working as a labourer having monthly

income of Rs.7,000/-. Whereas Shukra Soren aged about 23 years at the time of accident was also working as a labourer having monthly income of

Rs.5,200/-.

A criminal case has been instituted vide Tundi P.S. Case No.2 of 2016 dated 07.01.2016 under Sections 279, 304A, 337, 338 & 427 IPC.

Learned counsel for the appellant, Mr. Mrinal Kanti Roy has submitted that the learned Tribunal has wrongly fastened the liability upon the owner of

the vehicle Subhas Singh Chaudhary, appellant, directing him to pay a sum of Rs.9,73,872/- to the claimants within stipulated period with simple

interest @ 6% per annum.

Learned counsel for the appellant has further submitted that initially three claim cases were filed before the learned Tribunal. The present appeal has

been preferred by the owner against the award dated 27.01.2017 passed in Motor Accident Claim Case No. 33 of 2016 passed by the learned District

Judge-XI-cum-MACT, Dhanbad. The Insurance Company has preferred M.A. No.688 of 2017 against the award dated 30.08.2017 passed in Motor

Accident Compensation Case No.37 of 2016 but no appeal has been preferred by the Insurance Company against the award dated 21.09.2017 passed

in Title Motor Vehicle Suit No.175 of 2016 passed by learned District Judge-VII-cum- MACT Judge, Dhanbad. The award was with respect to injury

caused to Ram Chandra Murmu to the tune of Rs.76,220/- along with simple interest @ 6% per annum upon Insurance Company which has been

indemnified by the Insurance Company.

Learned counsel for the appellant has further submitted that the said award has already been indemnified by the Insurance Company, as such, the

liability upon the appellant- Subhas Singh Chaudhary, has been wrongly decided by the learned Tribunal. Learned counsel for the appellant, Mr. Mrinal

Kanti Roy has buttressed his argument relying upon Annexure-6 at page 50 of the memo of appeal which shows the list of document filed before the

learned Tribunal, enclosing the photocopy of the owner-book, photocopy of tax token, photocopy of Insurance certificate, photocopy of fitness,

photocopy of permit and photocopy of the driving licence, as such, the finding recorded by the learned Tribunal on the issues no.V & VI are contrary

to the record holding that the plaintiffs have not adduced any evidence on the point whether the driver of the offending vehicle was having any valid

and effective driving licence at the time of accident nor they have adduced any evidence on the point whether the offending vehicle was having valid

and effective road permit at the time of accident or not and therefore it is presumed that the driver of the offending vehicle was having no valid and

effective driving licence at the time of accident and dumper was having no road permit and accordingly both of these issues are decided against the

claimants. The learned Tribunal has wrongly passed the award, as such, the finding recorded by the learned Tribunal is perverse, which requires

interference by this Hon'ble Court.

Learned counsel for the appellant has further submitted that the aforesaid liability of Rs.9,73,872/- along with simple interest @ 6% per annum from

the date of institution of the claim application may be fastened upon the Insurance Company as the owner of the vehicle has not violated any of the

terms and conditions as envisaged under Section 149(2) of the MV Act. The driver has valid and effective licence and all the documents have been

brought on record, which has not been considered by the learned Tribunal.

Learned counsel for the respondent no.3- United India Insurance Company Limited, Mr. D.C. Ghosh has submitted that on verification it was found

that the vehicle was insured and those documents were already on record.

Learned counsel for the claimants/respondent nos. 1 and 2, Mr. Saibal Kumar Laik has submitted that claimants, Sarita Devi, W/o Late Shukra Soren

and Amita Kumari, D/o Late Shukra Soren have not been paid a single farthing after the award, as such, this Court may consider the same and pass

appropriate order so as to have benefit of beneficial legislation in favour of the claimants.

After hearing both the parties and on the basis of the materials available on record and on perusal of the impugned award, it appears that the

impugned award has been assailed by the owner of the offending vehicle, since the award is against the owner. The Insurance Company has not

assailed the impugned award.

It appears that award passed in one claim application no. 175 of 2016 has not been assailed before this Court where liability has been fastened upon

the insurer- Insurance Company rather the same has been indemnified by the Insurance Company.

The reason assigned by the learned Tribunal in present claim case no.33 of 2016 by fixing the liability upon the owner is perverse and contrary to the

record, as photocopy of the owner-book, tax token, insurance certificate, fitness certificate, permit and driving licence were already brought on record

on 20.05.2015 itself by way of list of documents and there is no positive evidence on record to suggest that Insurance Company has brought any

evidence to show the violation of Section 149 (2) of the MV Act by the Insured-owner of the vehicle. As such, the impugned award against the owner

is bad in law and requires interference by this Court.

Though loss of consortium of Rs.1,00,000/- loss of care and guidance of Rs.1,00,000/- and for funeral expenses Rs.25,000/- have been given which is

contrary to the decision of the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680.

But on the other hand, this Court is conscious of the position that future prospect of the deceased has not been calculated by the learned Tribunal

which ought to have been 40%, though there was no opportunity for the Insurance Company to prefer an appeal against the said award and such

discrepancies in the award, where 40% of future prospect has not been added and less amount of interest has been awarded as 6% per annum

instead of 7.5% per annum in terms of judgment of Hon'ble Apex Court repeated in Dharmpal and Sons Vs. UP State Road Transport Corporation,

2008 (4) JCR 79 SC. On the other hand, under conventional head computation has been made slightly on higher side, but if both are cojointly taken, the

same will not change the quantum of compensation with substantial amount. Since the claimants are widow and daughter of the deceased and the

amount of compensation as awarded by the learned Tribunal is not a windfall gain or bonanza, as such, this Court restrains from interfering in the

quantum of the Award. This Court without interfering with the award directs the United India Insurance Company Limited to indemnify the award of

Rs.9,73,872/- with simple interest @ 6% per annum from the date of institution of the claim petition in favour of the claimants within a period of 90

days from today. It is expected that once the Insurance Company has not assailed the impugned award on any ground, the Insurance Company shall

indemnify the liability/award as they have already indemnified the award dated 21.09.2017 passed in Title Motor Vehicle Suit No.175 of 2016 whereby

the award has been made in favour of the injured.

Accordingly, the instant Miscellaneous Appeal is hereby allowed.

The Registrar General of this Court is directed to refund the statutory amount deposited by the appellant at the time of filing of Miscellaneous Appeal,

within a period of four weeks from the date of the filling of the requisition/application.