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2025 DIGILAW 1258 (JHR)

Munija Khatun @ Sahneja Khatun w/o Safique Mian v. Ragini Kumari Singh, w/o Shashi Ranjan

2025-05-01

SANJAY KUMAR DWIVEDI

body2025
JUDGMENT : Sanjay Kumar Dwivedi, J. Heard Mr. Vijay Kr. Sharma, learned counsel appearing for the appellant and Mr. Ashutosh Anand, learned counsel appearing for the respondent No.2 - Insurance Company in M.A. No.686 of 2017 and Mr. Ashutosh Anand, learned counsel appearing for the appellant and Mr. Vijay Kr. Sharma, learned counsel appearing on behalf of the claimants in M.A. No.08 of 2018. 2. Notice upon the respondent No.1 in M.A. No.686 of 2017, who is said to be the owner, has already been effected and opportunity was provided to further appear on 12.02.2025 and by the said order the opportunity was further provided to the respondent No.7, who is the owner in M.A. No.8 of 2018 and in spite of providing opportunity, the owner has chosen not to appear before the Court and in view of that these appeals are being heard on merit in absence of owner. 3. M.A. No.686 of 2017 has been instituted by the claimants challenging the award dated 07.09.2017 passed in Claim Case No.12 of 2012 by learned District Judge – IV-cum-Motor Accident Claim Tribunal at Chatra. 4. M.A. No.8 of 2018 has been filed challenging the judgment dated 07.09.2017 passed in M.A.C. Case No.12 of 2012 by the insurance company. 5. Mr. Sharma, learned counsel appearing for the appellants in M.A. No.686 of 2017 submits that the learned Court has wrongly assessed the income of the deceased to the tune of Rs.4,500/- only in place of Rs.6,000/-, however, the evidence to that effect has been led. He further submits that the future prospect has not been provided by the learned Tribunal and consortium has also not been provided and only a sum of Rs.5,000/- is awarded for funeral expenses. He then submits that the interest is only granted to the tune of 6%, however, penal interest is said to be 8% in the said award. On this background, he submits that the amount may kindly be enhanced. 6. Mr. Ashutosh Anand, learned counsel appearing for the insurance company submits that the learned Tribunal has wrongly passed the award and challenge to that effect is made in M.A.08 of 2017 by the insurance company and the appellant is not entitled for any amount in view of the fact that he was travelling on the roof of the bus and in view of that the deceased himself was negligent. He further submits that if any wrong has been done by the owner of the vehicle in question, the liability cannot be fastened upon the insurance company and in view of that if such a situation is there at least the Tribunal was ought to give the liberty to the insurance company to pay and recover from the owner of the vehicle in question. He further submits that the driver of the bus was not having the proper driving license. On this background, he submits that the award has been wrongly passed and the appeal filed by the insurance company may kindly be allowed and the enhancement appeal made by the claimants may kindly be dismissed. 7. It transpires that on the fardbeyan of Md. Salim which was recorded by S.I. Pramod Kumar of Sadar P.S. on 15.04.2011 at 8:40 AM at Sadar Hospital, Hazaribagh stating that he was working at Kolkata and marriage of his younger brother Md. Ramjan was to be solemnized in that month. On this occasion, Md. Shamsul aged 18 years, who was his Bhagina and he was returning from Kolkata and there was crowd in the Pawan Hans Bus and he sat on the roof of top of the bus and near Bendi Village bus was taking turning near bridge and in that course his hand became free and fall on the road and he was injured and blood was cozying from his and he was admitted at Sadar Hospital, Hazaribagh with the help of local people and in course of treatment he died at 7:45 AM. He was learning the electrical work. On the basis of written report Katkam Sandi P.S. Case No.117 of 2011 dated 02.06.2011 under Sections 279, 304A of IPC was registered against the driver of Pawan Hans bus. 8. From the record, it transpires that PW-1 namely Md. He was learning the electrical work. On the basis of written report Katkam Sandi P.S. Case No.117 of 2011 dated 02.06.2011 under Sections 279, 304A of IPC was registered against the driver of Pawan Hans bus. 8. From the record, it transpires that PW-1 namely Md. Salim is said to be the informant and maternal uncle (mama) of the deceased has stated in the FIR that he was learning the electrical work and in the claim petition also it has been stated that he was learning and in light of that the learned Court has held the income of the deceased as Rs.4,500/- and how Rs.6,000/- figure will be there that has not been proved by way of leading any evidence by the claimants, as such so far income is concerned the Court finds that there is no illegality in the finding of the learned Tribunal. In light of National Insurance Company Limited v. Pranay Sethi reported in (2017) 16 SCC 680 future prospect to the tune of 40% was required to be paid to the claimants as the age of the deceased was found to be 18 years, as such in the award the future prospect will be added. For funeral expenses only Rs.5,000/- has been awarded which is also not correct in light of judgment of Hon’ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi (supra) , as such on the head of consortium a sum of Rs.70,000/- will be added in the award. 9. The Court finds that so far 8% penal interest is concerned that is not in accordance with law, as such interest part is modified to the effect to the tune of 6.7% per annum from the date of application till the date of payment. 10. 9. The Court finds that so far 8% penal interest is concerned that is not in accordance with law, as such interest part is modified to the effect to the tune of 6.7% per annum from the date of application till the date of payment. 10. The owner of the vehicle in question has appeared before the learned Court and he has stated that the vehicle in question was insured and the vehicle was being driven by the competent driver having the driving license and further all the papers, permit, insurance policy and other documents are genuine and valid and considering all these aspects the learned Tribunal has held that the insurance company has not been able to prove it contrary by way of leading any further evidence and in view of that the Court finds that so far the driving license is concerned, it has not been proved before the learned Tribunal by the insurance company that it was not valid, as such that argument of learned counsel for the insurance company is not being accepted by the Court. 11. So far travelling on roof is concerned that is proved in view of FIR itself and nobody should be allowed to travel on the roof and that was the duty of owner of the vehicle and the staff appointed by the owner on the bus. 12. The general principles of law talks with regard to the liability of the master for the acts of his servant are not in dispute and in the case in hand it is an admitted position that the deceased was travelling on the roof which has been driven by the driver of the said vehicle and in view of that the principle it is clear that a servant is acting within the scope of his employment and in so acting does something negligent or wrongful the employer is liable even the acts done may be the very reverse of that which the servant was actually directed to do and this has happened by way of allowing conductor and driver of the bus, as such the owner cannot be allowed to escape free. 13. 13. In view of above facts, reasons and analysis the award will be modified to the effect that the owner will be liable to pay 50% of the awarded amount to the claimants, however, the entire awarded amount shall be paid by the insurance company and the insurance company will be at liberty to recover 50% of the awarded amount from the owner. 14. These appeals are allowed in part in above terms and accordingly disposed of. 15. The statutory amount deposited by the insurance company in M.A. No.08 of 2018 shall be transmitted back to the learned Tribunal which will be utilized in satisfying the award in favour of the claimants and the awarded amount shall be released in favour of the claimants within six weeks.