M/S Cholamandalam Ms General ... vs Shanti Devi And Ors
2021 Latest Caselaw 2785 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 78 of 2019
                            ........

M/s Cholamandalam MS General Insurance Company Limited represented through its Deputy Manager, Prafull Choudhary .......... Appellant Versus Shanti Devi and Ors. .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant                : Mr. Ashutosh Anand, Advocate
For the Respondent               :
                                 ........
04/09.08.2021.

Heard, Mr. Ashutosh Anand learned counsel for the appellant. M/s Cholamandalam MS General Insurance Company Limited has preferred this appeal against the award dated 15.12.2018 passed by learned District Judge -IV-cum-M.A.C.T. Dhanbad in Motor Accident Claim Case No.96 of 2016, whereby the claimants namely, (1) Shanti Devi, w/o late Mantu Singh, (2) Chhabee Singh, S/o late Mantu Singh, (3) Sunita Kumari, D/o late Mantu Singh, (4) Janki Kumari, D/o late Mantu Singh, (5) Dilip Singh, S/o late Mantu Singh and (6) Malti Kumari, D/o late Mantu Singh (Claimant nos.4 to 6 are minor and are represented through their mother and natural guardian claimant no. 1, Shanti Devi) have been awarded compensation to the tune of Rs.75,62,225/- along with interest @ 6% per annum from the date of filing of claim application i.e. 08.03.2016 till its reliazation.

Mr. Ashutosh Anand, learned counsel for the appellant has assailed the impugned award on the ground that the tribunal has wrongly considered the the income tax return for considering the annual income of the deceased, though the monthly salary slip (Exhibit-1) issued to the deceased for the month of May, 2014 by the ECL shows that monthly income of the deceased was Rs. 45,262/-.

Learned counsel for the appellant has submitted that the income tax return of financial year 2013-14 and assessment year 2014-15 have been brought on record as Ext. 4. The income has been considered on the higher side, as such the Court may interfere with the same.

Learned counsel for the appellant has further submitted that there was contributory negligence on the part of the deceased also.

After hearing learned counsel for the appellant and from perusal of the impugned award, it appears that the income has rightly been considered by the learned tribunal after deducting the tax component in view of the judgment passed by the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi reported in (2017) 16 SCC 680 (para-59.3), which will be apparent from internal page-7 of the impugned award.

Further from perusal of the record, it appears that appellant has not filed any objection with regard to income tax return brought on record as Ext.

4. Accordingly, this Court will not interfere with the same, So far the contributory negligence is concerned, no evidence has been brought on record by the Insurance Company and in absence of such pleadings and evidence, the insurance company is not permitted to agitate the issue before this Court in view of the judgment passed by the Apex Court in the case of Ramchandra Vs. Regional Manager United India Insurance Co. Ltd., reported in 2013 (12) SCC 84 at Para-26, which may profitably be quoted herein :-

"26. Hence, at the stage of appeal before the High Court, we find no legal justification for the High Court to leave it open to the Insurance Company to realise the amount of compensation beyond Rs 32,091 from the insured/owner as the plea of the respondent Insurance Company all through was that the claimant is not entitled to any compensation beyond the extent of liability under the Workmen's Compensation Act and the respondent Insurance Company had not taken the alternative plea either before the Tribunal or the High Court that in case the claimant is held entitled to compensation beyond the extent of liability under the Workmen's Compensation Act, the same was not payable as no extra premium was paid by the insured/owner under the policy of insurance. The Insurance Company had failed to raise any plea before the courts below i.e. either the Motor Accidents Claims Tribunal or the High Court and it did not even contend that in case the claimant is entitled to any compensation beyond what was payable under the Workmen's Compensation Act, it is the insured owner who was liable to pay as it had no contractual liability since the insured/owner of the vehicle had not paid any extra premium. Thus, this plea was never put to test or gone into by the Motor Accidents Claims Tribunal since the Insurance Company neither took this plea nor adduced any evidence to that effect so as to give a cause to the High Court to accept this plea of the Insurance Company straightaway at the appellate stage."

This Court has further found that interest has been awarded @ 6% per annum, which ought to have been @ 7.5% per annum in view of the judgment passed by the Hon'ble Apex Court in the case of Dharampal and sons Vs. U.P. State Road Transport Corporation reported in (2008) 12 SCC 208.

Since no appeal has been preferred by the claimants, therefore, this Court is not inclined to interfere with the same.

Accordingly, the appeal preferred by the appellant- insurance company is hereby, dismissed.

The statutory amount deposited by the appellant at the time of preferring the appeal under Section 173 of the M.V. Act shall be remitted to the learned tribunal within a period of four weeks from today by the learned Registrar General of this Court, so as to indemnify the part of the award to the claimants after due notice and verification and the balance amount of award as awarded by the learned tribunal shall be indemnified to the claimants by the insurance company within a reasonable period as the accident is of dated 02.08.2014.

(Kailash Prasad Deo, J.) S.K/Tarun