RANCHI, India, Sept. 8 -- Jharkhand High Court issued the following order on Aug. 8:

1. M. A. No. 416 of 2014 is preferred by the Insurance-Company against the award of compensation in which a total liability has been fixed on it to pay compensation to the claimants. Cross Objection No. 28 of 2021 has been preferred by the claimants for enhancement of compensation amount.

2. The factum of accident is not in dispute that on 18.12.2009 Md. Jamal while going by his motorcycle bearing Registration No. WB-01R-5409 met with an accident with a bus bearing Registration No. JH-02G-4219 regarding which Dhanwar PS Case No. 253/2009 was registered against the driver of the bus under Sections 279 and 304A of the IPC. It is also not in dispute that the vehicle was under the insurance cover of the appellant-Company.

3. Learned Trial Court has awarded compensation of Rs.2,27,000/- with interest @ 9% per annum taking monthly income of the deceased to be Rs.3000/- per month.

4. Challenge to the award is two folds. Firstly, it is submitted that it is a case of head on collision between the motorcycle and therefore it was a case of contributory negligence. Consequently, compensation should have been accordingly apportioned. Secondly, deceased was not having a valid driving licence, as it was specifically pleaded in para-6 of the WS by the Insurance Company before the trial Court. Driving the motorcycle without driving licence was a factor which has not been considered. The High Court of Delhi in AIR OnLine 2019 Del 111 (Rehmani Begum & Ors. Vs. Krishna Pal & Ors.) has held that while relying upon the ratio laid down by the Hon'ble Apex Court in (2012) 4 SCC 552 has held that in absence of a valid permit to drive, deceased should not have driven motorcycle on public road.

5. Second limb of argument is that there is a delay in preferring the Cross Objection and, therefore, it cannot be a factor for enhancement of compensation. Since it is an appeal filed by the Insurance Company challenging the quantum of compensation, compensation cannot be enhanced. Reliance is placed on the judgment passed by the Co-ordinate Bench of this Court in M.A. No. 131 of 2016.

6. So far as the issue of cross objection is concerned, it is submitted by learned counsel for the respondents, and rightly so, that since the case is still running under the heading for admission and cross objection was filed before the commencement of hearing, therefore, it cannot be said that there was any delay on the part of the claimants to file cross objection.

7. It is argued that with regard to absence of license, no pleading was raised and no issue was cast and it has been taken for the first time before this Court. In reply, it is argued by learned counsel for the Insurance Company that in paras-6 and 8 of the written statement, there is specific plea of absence of driving license and negligence on the part of the deceased who was the driver of the motorcycle.

8. Having considered the submissions advanced on behalf of both sides, the mandate of law is to award just and fair compensation as held by Hon'ble Apex Court in 2021 (16) SCC 467. Whether cross-objections are filed or not hardly matters. Cross Objection cannot be said to be time barred and there is merit to consider the cross-objection.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=lG6h6ilt3H1fOBr4DLdM9ZG5eUFKZXncTKLW1NIzr3x3t6AvfFiIKQAKgsq9521K&caseno=MA/416/2014&cCode=1&cino=JHHC010117412014&state_code=7&appFlag=)

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