Jharkhand High Court
Prakash Kumar vs Upendra Kumar Singh on 31 July, 2025
2025:JHHC:21197
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 470 of 2015
1. Prakash Kumar, S/o late Parmeshwar Sao R/o village Rasoiya Dhamna,
P.O & P.S. -Barhi, District Hazaribag.
2.Heeriaya Devi, wife of Parmeshwar Saw
Both are residents of Village - Rasoiya Dhamna, P.O. & P.S. - Barhi,
District-Hazaribag (Jharkhand). ...... Appellants
Versus
1. Upendra Kumar Singh, son of Late Chandrika Singh, resident of village
-Jankoop, P.O. - Jogiya, P.S. - Barun, District - Aurangabad (Bihar).
(Owner of Truck No. BR-2H-7107).
2. National Insurance Company Limited, Branch Office Gaya, Policy No.
170907/31/08/6300001064, Certificate No. 170907/31/08/6300001064,
Valid from 14.05.2008 to 13.05.2009 (Insurer of Truck No. BR-2H-7107,
bearing Chasis No. 426031ERZ212866, Engine No. 80E62675874),
through The Divisional Manager, National Insurance Company Limited,
Divisional Office -Hazaribag. Ranchi-Patna Road, Opposite of Civil
Court, Hazaribag, P.O. & P.S. & District - Hazaribagh.
......Respondents
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For the Appellants : Mr. Prabhat Kumar Sinha, Advocate
For the Resp. No.2 : Mr. Amaresh Kumar, Advocate
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PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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JUDGMENT
C.A.V. On 08.05.2025 Pronounced On: 31st July .2025
…..
1. Heard Mr. Prabhat Kumar Sinha, learned counsel for the
appellants/claimants and Mr. Amaresh Kumar, learned counsel for the
respondent no. 2-Insurance Company.
2. This Miscellaneous Appeal is directed against the award dated
08.04.2015 passed by learned Presiding Officer, Motor Vehicle Accident
Claims Tribunal, Hazaribagh (hereinafter referred to as the Learned
Tribunal) in Claim Case No. 41 of 2009, whereby and whereunder the
learned Tribunal has been pleased to award amount of Rs. 2,94,500/- with
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simple interest @ 6 % per annum to the Appellant No. 1 and 2 equally since
15.03.2013 within two months from the date of award, failing which the
Company shall be liable for penal interest @ 9% per annum from
08.06.2015 till realization.
3. The brief fact of the case is that on 24.12.2008 the deceased, namely,
Binod Kumar Gupta was going to Telaiya for purchasing some articles for
his grocery shop by his motorcycle and at 17:00 O’Clock when he reached
at Telaiya road near Hari Hotel, Barhi, a truck bearing registration no. BR-
2H-7107 was coming from opposite side and the driver was driving the said
vehicle in a rash and negligent manner which dashed the said motorcycle
due to which the deceased sustained grievous injuries and died on the spot.
4. An FIR being Barhi P.S. Case No. 272 of 2008 dated 24.12.2008 has
been got registered on the fardbeyan of Prakash Kumar Gupta, younger
brother of the deceased under Section 279/304-A of I.P.C. Thereafter, due
investigation was done and charge sheet was submitted against the driver of
offending truck, namely Jitendra Kumar, bearing registration no. BR-2H-
7107.
5. Thereafter father and mother of the deceased who was unmarried and
was proprietor of grocery shop, filed an application under Section 166 of
Motor Vehicle Act (in short M.V. Act). During enquiry before the Tribunal
two witnesses on behalf of claimants got examined. They are C.W. 1 and
C.W. 2 who reiterated the fact that on account of rash and negligent driving
of the driver of the offending truck, it dashed the motorcycle and the
deceased succumb to injury. Claimants further brought on record following
documents :-
Ext. 1-Certified Copy of F.I.R.
Ext.2-Certified Copy of Charge-sheet.
Ext.3- Attested copy of Post-mortem Report.
Mark ‘X’-Copy of Insurance Policy
Mark ‘Y’-Copy of Certificate of Registration
6. Record received from Tribunal further reveals that owner of the truck
did not appear before the Tribunal, however, Insurance Company filed W.S.
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and contested the claim. Learned Tribunal after analyzing and evaluating the
material available on record passed the impugned award dated 08.04.2015
whereby the learned Tribunal has awarded amount to the tune of Rs. 2,
94,500/- with simple interest @ 6 % per annum to the Claimants No. 1 and 2
equally since 15.03.2013 to be paid within two months from date of Award,
failing which the Company shall be liable for penal interest @ 9% per
annum from 08.06.2015 till realization.
7. The present appeal has been preferred against the above said
impugned award dated 08.04.2015 precisely on two grounds. First that there
is no contributory negligence on the part of the deceased and, as such,
deduction of 25% made while computing the compensation has been
wrongly taken by the learned Tribunal.
8. Secondly, enhancement of quantum of compensation as learned
Tribunal has not considered the multiplier which ought to be 18 as the
deceased was 22 years of age at the time of accident, in terms of ratio in the
case of Sarla Verma v. DTC, reported in (2009) 6 SCC 121. He also
emphasized that rate of interest should also be more than what was given by
the learned Tribunal.
9. It is also argued by the learned counsel for the claimants/ appellants
that the award passed by the learned Tribunal is not in consonance with the
ratio laid down by Hon’ble the Supreme Court in National Insurance
Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 as loss of
income under the head of Future Prospect has not been considered and
further under the conventional head, only Rs. 2000/- has been awarded.
10. Learned counsel for Insurance Company submitted that it is a case of
contributory negligence on account of fact that there is head on collision and
no Driving licence of the deceased has been brought on record by the
claimants. As far as quantum is concerned, learned counsel for Insurance
Company submitted that a suitable order may be passed in the light of
Judgment of Hon’ble Supreme Court in the case of sarla verma (supra) and
Pranay Sethi(supra).
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11. After hearing both the learned counsel at length and perusing the
record of Tribunal, first of all, I would like to examine whether in the present
case there is contributory negligence on the part of deceased or not.
12. At para 11 of written statement, Insurance Company has contended
that “there is head on collision between the motor cycle and the said
offending truck. As such the case is of composite negligence. There is
negligence of deceased as well and the maxim res ipsa loquitur will apply
there.”
13. Undoubtedly, it is head on collision between the motorcycle being
driven by the deceased and truck having registration no. BR-2H-7107. Out
of two witnesses who have been produced by the claimants during enquiry
one witness C.W. 1 has claimed himself to be eyewitness to the incident and
this Court very carefully gone through the cross examination done on behalf
of Insurance Company.
14. Para 24 of cross-examination of C.W.- 1 reveals that witness has
stated that deceased was on motorcycle and there was D.L (driving license)
as deceased told him but he could not see that. No contrary suggestion has
been given by Insurance Company to this witness that deceased was having
no D.L (driving license). Insurance Company has not been able to extract
from the mouth of C.W.1 in cross examination any material which could
show that there was negligence on the part of deceased. Documents like FIR,
Chargesheeet also do not speak about the negligence on the part of deceased.
15. Learned Tribunal while deciding the issue of contributory negligence
has come to conclusion that it is a case of head on collision between
motorcycle having registration no. JH-02E-1137 driven by deceased and
truck having registration no. BR-2H-7107 and claimants have not produced
the driving license of the deceased and also nothing on record to show that
the deceased was wearing head gear (helmet) and ratio of negligence of
motorcycle driver and truck driver has been assessed as 25:75.
16. As discussed in preceding paragraph, there is no material qua
contributory negligence either in the pleading or in evidence brought on
record by Insurance Company and no presumption can be drawn that in case
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of head on collision and also none production of driving license results into
contributory negligence.
17. Hon’ble Supreme Court in the case of Dinesh Kumar v. National
Insurance Co. Ltd., reported in (2018) 1 SCC 750 has held that none
production of D.L. itself cannot attract the contributory negligence on the
part of the deceased. Relevant Para of the judgment reads hereunder –
7. Insofar as the judgment of the High Court is concerned, the Division Bench
has placed a considerable degree of importance on the fact that there was
no visible damage to the lorry but that it was the motorcycle which had
suffered damage and that there was no eyewitness. We are in agreement
with the submission which has been urged on behalf of the appellant that
plea of contributory negligence was accepted purely on the basis of
conjecture and without any evidence. Once the finding that there was
contributory negligence on the part of the appellant is held to be without
any basis, the second aspect which weighed both with the Tribunal and the
High Court, that the appellant had not produced the driving licence, would
be of no relevance. This aspect has been considered in a judgment of this
Court in Sudhir Kumar [Sudhir Kumar Rana v. Surinder Singh, (2008) 12
SCC 436 : (2009) 1 SCC (Cri) 443] where it was held as follows : (SCC p.
439, paras 9-10)
“9. If a person drives a vehicle without a licence, he commits an offence. The
same, by itself, in our opinion, may not lead to a finding of negligence as
regards the accident. It has been held by the courts below that it was the
driver of the mini truck who was driving rashly and negligently. It is one
thing to say that the appellant was not possessing any licence but no finding
of fact has been arrived at that he was driving the two-wheeler rashly and
negligently. If he was not driving rashly and negligently which contributed
to the accident, we fail to see as to how, only because he was not having a
licence, he would be held to be guilty of contributory negligence.
10. The matter might have been different if by reason of his rash and
negligent driving, the accident had taken place.”
18. As far as the inference taken by Tribunal that no material available on
record which could show that deceased was wearing helmet is concerned,
absence of this piece of evidence or pleading cannot and should not be
treated as conclusive presumption that appellant was not wearing the helmet.
19. Further, Hon’ble Supreme Court in the case of Meera Devi v. H.P.
RTC, reported in (2014) 4 SCC 511 has held that for coming to conclusion
of contributory negligence on the part of deceased some positive cogent
evidence is required to be adduce on record and in absence of that Court
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cannot take presumption to come to conclusion of contributory negligence.
Relevant Para of the judgment reads hereunder –
10. To prove the contributory negligence, there must be cogent evidence. In
the instant case, there is no specific evidence to prove that the accident has
taken place due to rash and negligent driving of the deceased scooterist. In
the absence of any cogent evidence to prove the plea of contributory
negligence, the said doctrine of common law cannot be applied in the
present case. We are, thus, of the view that the reasoning given by the High
Court has no basis and the compensation awarded by the Tribunal was just
and reasonable in the facts and circumstances of the case.
20. Considering the discussion made in the preceding paragraphs and
legal proposition, this court is of considered view that there is no
contributory negligence on part of the deceased, therefore deduction made in
the impugned award is not tenable.
21. As far as second part of enhancement of quantum is concerned, this
Court Considering Rs. 5,000/- as the monthly income of the deceased and 18
as multiplier as per sarla verma (supra), addition of 40% as future prospect
as deceased being self employed and below 40 years of age and Rs.
70,000/- under the conventional head as per Pranay Sethi(Supra), the final
compensation amount will work out as under :-
Monthly Income Rs. 5,000/-
Personal & Living Expenses (Deduction) Rs. 5000×50% =
(sarla verma) Rs.2500/-
Annual Income Rs. 2,500×12 =
Rs. 30,000/-
Multiplier of 18 (22 years as the age of the Rs. 30,000×18=
deceased at the time of the accident) (sarla Rs. 5,40,000/-
verma)
Future Prospect(Deceased being self employed Rs. 5,40,000×40%=
and below 40 yrs) - 40% Rs. 2,16,000/-
Pranay Sethi(Supra)
Total amount Rs. 5,40,000+2,16,000 =
Rs. 7,56,000/-
Conventional Head (Loss of Estate, Funeral Rs. 70,000/-
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Expenses and Loss of Consortium)Pranay
Sethi(Supra)
Total Compensation Rs.7,56,000 + Rs.70,000
= Rs. 8,26,000/-
22. As far as, interest part is concern, this court taking the legal
proposition in the judgment rendered by the apex court in the case of
National Insurance Co. Ltd. versus Mannat Johal reported in (2019) 15
SCC 260, is of considered view that Respondent- Insurance Company is
liable to pay the aforesaid compensation amount along with interest @
7.5% per annum simple interest, from the date of filing of the claim till its
realization.
23. As far as, right to recovery is concerned, record reveals that the
owner of the offending truck chose not to appear before the Tribunal and
even after substituted service of notice fails to appear before this Court.
The finding of the Tribunal qua the right to recovery has not been assailed
before this Appellate Court, as such, the right to recovery granted to the
Insurance Company against the owner of the offending truck by the
Tribunal, shall remain intact.
24. Further, record of Tribunal, reveals that Cheque bearing no. –
008228 dated 17.06.2015 and 008229 dated 17.06.2015 for the sum of Rs.
1, 66,856 /- each has already been received by the appellants/ claimants
before Lok Adalat. Therefore, the Insurance Company is directed to
indemnify the remaining amount of award to the appellants/ claimants
along with the interest @ 7.5% per annum simple interest, from the date
of filing of the claim till its realization, within a period of 45 days from
today.
25. Resultantly, the instant miscellaneous appeal being M.A. No. 470
of 2015, is hereby, allowed.
(Arun Kumra Rai, J.)
Jharkhand High Court, at Ranchi
Dated 31st July, 2025
Rajnish /- A.F.R.
7 M.A. No. 470 of 2015