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2017 DIGILAW 809 (JHR)

National Insurance Company Ltd. v. Gandhwa Orain

2017-05-04

AMITAV K.GUPTA

body2017
JUDGMENT Amitav K. Gupta, J. - These appeals have been preferred against the common judgment and award dated 18.10.2012, passed by the Motor Accident Claims Tribunal, Ranchi, whereby the appellant - National Insurance Company has been directed to pay the awarded compensation in the aforesaid miscellaneous appeals. 2. Learned counsel for the appellant-National Insurance Company has assailed the impugned judgment and award on the limited grounds that the Tribunal has erred in fastening the liability to pay the compensation on the appellant/ insurance company. It is urged that the tribunal has failed to appreciate that the claimants have nowhere stated in their claim application that the deceased persons were engaged as labourers in the truck. It is submitted by the counsel that the informant, who was travelling in truck bearing No. BEN-9255, has categorically stated that the persons boarded the truck but there is no averment or whisper that the deceased persons were working as labourers in the truck. It is argued that the tribunal has failed to consider that under 161 Cr. P.C. the witnesses in para-11 to 14 of the case-diary have stated that the deceased persons were travelling as passengers in the truck. That Om Prakash Sharma, the investigator-cum-surveyor of the Insurance Company has been examined as O.P.W. No. 1, and he has proved the report, Ext.-A, and deposed that the deceased were travelling as passengers and not as labourers of the truck. It is contended that the evidence on record supports the fact that the deceased persons were travelling as passengers in the truck hence, there has been violation of the terms and conditions of the insurance policy by the owner of the truck and the liability to pay the compensation should be fastened on the owner of the truck. That the claimants in collusion with the owner of the truck, have made amendments in their claim application stating that the deceased persons were the labourers. The amendment was incorporated after the owner recorded his statement that the deceased were employed as labourers in his truck. Such amendment in the pleading is an after thought and indicative of the collusiveness of the claimants and the owner with intent and object of helping the owner to escape the liability to pay the compensation. The amendment was incorporated after the owner recorded his statement that the deceased were employed as labourers in his truck. Such amendment in the pleading is an after thought and indicative of the collusiveness of the claimants and the owner with intent and object of helping the owner to escape the liability to pay the compensation. On the above grounds, learned counsel has urged that the impugned judgment/award is perverse and has been passed without considering and appreciating the facts stated in the claim application and the subsequent amendments made in the claim petition and the inherent contradictions in the deposition of the claimants. That the tribunal has not considered the evidence in proper perspective and accordingly the impugned judgment/award is fit to be set aside. 3. Learned counsel on behalf of the respondents/claimants has supported the impugned award and submitted that the learned counsel for the appellant has picked and chosen the statement of the witness examined under Section 161 Cr.P.C., 1973 to suit his arguments. It is contended that the said witnesses have categorically stated that the deceased were engaged as labourers of the truck. That the Tribunal has meticulously examined and discussed the material evidence on record and arrived at the finding that the deceased persons were engaged as labourers in the truck which was insured under a valid Insurance policy. 4. Learned counsel on behalf of respondent/owner has argued that the perusal of Insurance policy (i.e. Ext.- Y) would reveal that it was a comprehensive insurance policy and additional premium was paid by the owner as insurance coverage for four labourers and driver of the truck. It is contended that the appellant has tried to interpret the language of F.I.R to his own convenience that the deceased persons were travelling as passengers in the truck. It is argued that F.I.R. discloses that the truck had come from Lohardaga and 40 to 50 passengers boarded the truck but there is no statement to this effect that the deceased had also boarded as passengers or they were not engaged as labourers in the truck. It is argued that F.I.R. discloses that the truck had come from Lohardaga and 40 to 50 passengers boarded the truck but there is no statement to this effect that the deceased had also boarded as passengers or they were not engaged as labourers in the truck. It is pointed out that the amendment was allowed in the presence of the appellant/Insurance company but they did not challenge the said amendment neither did they take steps for filing any additional written statement in response to the amendment of the claim application consequently they are estopped from challenging the same in this appeal. 5. Heard. On perusal of the Insurance policy (Ext.- Y), it is not disputed that it was a comprehensive insurance policy. The informant had also boarded the truck and he has stated that about 40 to 50 passengers had boarded the truck which met with an accident due to rash and negligent driving by the truck driver. It is stated that one Jirania Orain, who was a pedestrian, died on account of accident and she was a labourer. It is pertinent to emphasize that statements of witnesses in the case diary, cannot be looked into unless the same is made on affidavit or the witnesses are examined in the court. The surveyor - O.P.W. No. 1, in his cross-examination has not stated as to who were the persons who disclosed to him that the deceased were passengers. In fact, specific question was put to him in this context to which he has feigned ignorance. This is suggestive of the fact that O.P.W. 1''s report (Ext. A) is based on hearsay evidence and it cannot be accepted. 6. The claimants have categorically stated that deceased were labourers engaged in the truck which is supported by the statement of the owner that the deceased were labourers in his truck. The Tribunal has meticulously examined and analysed the material evidence and recorded its satisfaction that on the date of accident the deceased were engaged as labourers in the truck. 7. As noticed, the owner had paid additional premium as insurance coverage for four labourers and driver of the truck under a comprehensive insurance policy. The Tribunal has meticulously examined and analysed the material evidence and recorded its satisfaction that on the date of accident the deceased were engaged as labourers in the truck. 7. As noticed, the owner had paid additional premium as insurance coverage for four labourers and driver of the truck under a comprehensive insurance policy. The material evidence supports the fact that the deceased were labourers of the truck which had a valid comprehensive insurance policy hence, the Tribunal was justified in fastening the liability to pay the compensation upon the appellant/Insurance Company. However, it transpires that the Tribunal has awarded a meager amount towards the loss of consortium and funeral expenses and not awarded any amount towards non-pecuniary damages for loss of love, care and affection. 8. Therefore, it would be just, reasonable and fair to award a lumpsum amount of Rs. 1,50,000/- (Rupees one lakh fifty thousand) under the conventional heads of funeral expenses, loss of love and affection, consortium and estate in addition to the compensation awarded by the court below by impugned judgment dated 18.10.2012, passed in Compensation Case Nos. 69 of 2003, 74 of 2003, 75 of 2003, 76 of 2003 and 84 of 2003. 9. The impugned judgment and award is modified and the insurance company is directed to pay the enhanced compensation amount of Rs. 2,90,000/- + Rs. 1,50,000/- = Rs. 4,40,000/- (Rupees four lakh forty thousand) in M.A. No. 53 of 2013, Rs. 3,44,000/- + Rs. 1,50,000/- = Rs. 4,94,000/- (Rupees four lakh ninety four thousand) in M.A. No. 56 of 2013, Rs. 3,65,000/- + Rs. 1,50,000/- = Rs. 5,15,000/- (Rupees five lakh fifteen thousand) in M.A. No. 57 of 2013, Rs. 3,77,000/- + Rs. 1,50,000/- = Rs. 5,27,000/- (Rupees five lakh twenty seven thousand) in M.A. No. 58 of 2013, Rs. 2,21,000/- + Rs. 1,50,000/- = Rs. 3,71,000/- (Rupees three lakh seventy one thousand) in M.A. No. 59 of 2013 less the amount, if any, already paid with interest @ 6% from the date in terms of the impugned judgment/award within two months from the date of receipt of this order. 10. The impugned judgment/award is modified to the extent as indicated above. 11. Consequently, I.A. Nos. 1297 of 2013, 1298 of 2013, 1299 of 2013 and 1300 of 2013 are also disposed off. 12. In the result all the appeals are, hereby dismissed. 13. 10. The impugned judgment/award is modified to the extent as indicated above. 11. Consequently, I.A. Nos. 1297 of 2013, 1298 of 2013, 1299 of 2013 and 1300 of 2013 are also disposed off. 12. In the result all the appeals are, hereby dismissed. 13. Registry shall return the deposited statutory amount in favour of the appellant-National Insurance Company. 14. Let a copy of this order along with the lower-court record be sent forthwith to the court below.