JHARKHAND HIGH COURT ISSUES ORDER ON IFFCO TOKIO GENERAL INSURANCE AND ORS. V/S SMT. PRABHA DEVI AND ORS.

RANCHI, India, Sept. 28 -- Jharkhand High Court issued the following order on Aug. 27:

1. Both the Misc. Appeals arise out of common judgment of award and compensation passed in Title Motor Vehicle Suit No.9 of 2011 whereby and whereunder, a compensation of Rs.14,50,000/- along with interest @ 9% per annum has been awarded from the date of filing of the claim application till realisation under Section 166 of the M. V. Act.

2. M.A. No.546 of 2016 has been preferred by the appellant- Insurance Company against the Award of compensation whereas M.A. No.593 of 2016 has been preferred by the claimants for enhancement of the compensation amount.

3. As per the case of the claimant(s), it is that deceased- Bijay Rai@ Bijay Singh was riding one Bajaj Motor Cycle bearing Registration No. JH11D-0424 which with an accident involving another Motorcycle bearing Registration No.TN 28T 4615 being driven by its Driver, Ajay Kumar rashly and negligently. The offending motorcycle was under the insurance cover of appellant- IFFCO Tokyo General Insurance Company Limited.

4. Learned Tribunal recorded a finding that the said Motorcycle was being driven rashly and negligently resulting into the said accident.

5. Compensation was assessed by accepting the occupation of the deceased of a farmer and that he was earning a monthly income of Rs.10,000/- per month, and was a bachelor aged about 30 years at the time of accident on the basis of which the said compensation has been awarded.

6. It is submitted by learned counsel for the appellant - Insurance Company that the only evidence that has been led with regard to agricultural income and loss thereof on account of death of the deceased is the registered sale-deed by which the land had been purchased by the deceased. There is no detail whatsoever with regard to the land under the agriculture farmed by the deceased. In this context, reliance is placed on (2003) 7 SCC 484 (State of Haryana Vs. Jasbir Kaur), wherein an agricultural income of Rs.4,500/- per month was not accepted by the Hon'ble Supreme Court for the reason that the evidence did not show that the death had caused any loss to the land standing in his name. There was only a possibility that claimant is required to engage a person to look after the agriculture.

7. It is further argued that it was a case of head-on collision between two motorcycles, one of which was being driven by the deceased, however, the contributory negligence on the part of the deceased has not been factored by the learned Tribunal while awarding compensation. The other issue that has been raised is regarding the error in computing Future Prospect @ 50% which, as per the ratio laid down by the Apex Court in National Insurance Company Limited vs. Pranay Sethi, reported in (2017) 16 SCC 680 for the deceased in the age of 30 years self-employed in an un-organized sector would be 25%.

8. It is also argued that the deceased being owner of the Motorcycle was also under an insurance cover for personal risk to the extent of Rs. One Lakh and this was also not considered by the learned Tribunal while assessing the final compensation amount.

9. It is argued that a minor cannot enter into a contract in his own name including a deed of sale dated 09.06.1984 (Ext.1) which is also a form of contract, whereas the accident took place in 2007. As such, this will bring his age to be of more than 40 years if it is accepted at the time of execution of sale-deed, he was more than 18 years.

10. In M. A. No. 593 of 2016, it is argued by learned counsel for the claimants/respondents that no evidence has been led on behalf of the Insurance Company regarding contributory negligence. First Information Report (Ext.5) was filed against unknown, but the chargesheet (Ext.6) has been filed against the driver of the offending vehicle which was under the insurance cover of the appellant Insurance Company. The witnesses examined on behalf of the claimants had deposed that the accident took place due to rash and negligent driving by the offending motorcycle of the insurer which.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=7yg5D%2FmJmLJFbv9l4Wl3vQdHmOH7MvGbxou1DdfS8Y08eEVsqdk8DD8H7TmjbLFx&caseno=MA/546/2016&cCode=1&cino=JHHC010112602016&state_code=7&appFlag=)

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