National Insurance Co. Ltd. vs Sunita Soni
2021 Latest Caselaw 4551 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              M.A. No. 323 of 2020
                                    With
                              I.A. No. 6115 of 2020
                                    With
                              I.A. N0. 2910 of 2021
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National Insurance Co. Ltd., Ramgarh .... Appellant(s) Versus.

1. Sunita Soni

2. Rashmi Soni

3. Aarti Soni

4. Rohan Prasad Soni

5. Basant Kumar Prajapati

6. Santosh Kumar Mahto ... Respondent(s).

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CORAM: HON'BLE MR. JUSTICE ANANDA SEN.

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For the appellant(s): Mr. Alok Lal, Advocate.

For the Respondent(s):

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I.A. No. 6115 of 2020

03/02.12.2021: This application has been filed for condoning the delay of 269 days in filing this appeal.

From perusal of paragraphs 6 to 12 of this application, I find that there is sufficient ground to condone the delay in filing this appeal. The delay of 269 days in filing this appeal is condoned.

Accordingly, this application stands allowed.

M.A. No. 323 of 2020 Heard the learned counsel for the appellant.

2. With consent of the appellant, this appeal is being heard at this stage itself.

3. This Miscellaneous Appeal has been filed under Section 173(1) of the Motors Vehicles Act, 1988 by the appellant-National Insurance Company Limited challenging the award dated 20.11.2019 passed by the District Judge-1- cum-Motor Vehicles Accident Claims Tribunal, Bermo at Tenughat, Bokaro in Motor Accident Claim Case No. 118 of 2018.

4. The counsel for the appellant submits that the quantum of compensation is on much higher side. He further submits that the Tribunal has committed grave illegality in computing the compensation amount considering Rs.1,48,450/- per annum income of the deceased in absence of any substantial proof. He also submits that it is well settled law that in absence of proof, Rs.3000/- per month should be considered as the income of the deceased. He further submits that the food allowance over and above minimum wages should not have been considered while calculating the income of the deceased. He also submits that interest is also on the higher side. He lastly submits that the Tribunal has held the driver of the offending vehicle has not produced his driving licence, thus according to him, the tribunal should have directed that the owner of the vehicle will pay the amount of compensation.

5. After hearing the counsel for the appellant, I have gone through the award. The claimants are the widow, two daughters and one son of the deceased. The deceased was a driver by occupation and he was driving Mini Bus on the fateful day. The deceased was returning with the bus from Silli to Bokaro and when the bus reached near Jaridih road, one Hywa truck bearing registration No. JH 02AE 6241 came and collided the mini bus, resulting the death of the deceased. A case being Jaridih P.S. Case No. 62/2018 under Sections 279, 337, 338 and 304-A IPC was instituted.

6. The case of the claimants is that the deceased was 48 years of age at the time of accident and being the driver by occupation, he was earning Rs.12,000/- per month and Rs. 50/- per day was paid to him as food allowance by the employer. The Insurance company opposes the claim application.

7. From pleadings of the parties, six issues were framed. The claimants examined three witnesses on their behalf. C.Ws. 1 and 2 are the claimants. C.W.3, Gopal Prasad Verma has proved the income of the deceased. Several documents were also exhibited on behalf of the claimants, which are as under:-

(i) Ext.1- C.C. of FIR of Jaridih P.S. Case No. 62/2018.

(ii) Ext.2: -C.C. of charge sheet of Jaridih P.S. Case No. 62/2018

(iii) Ext.3: - Original Aadhar Card of the deceased.

            (iv)    Ext.4:- Original PAN Card of the deceased.
            (v)     Ext.5:- Original Voter Card of the deceased.
            (vi)    Ext.6:- Original Cash Receipt of the BGH, Bokaro .

(vii) Ext.7:- Original driving licence of the deceased.

8. The Tribunal thereafter considering the evidences concluded that the accident occurred because of rash and negligent driving of the offending Hywa Vehicle. So far as income of the deceased is concerned, the tribunal held that from the evidences it is clear that the deceased was a driver and was employee of CW-3 and was driving mini bus being registration No. JH 10N 0536. Witness No. 3 stated that the deceased was getting Rs.400/- per day and over and above the aforesaid amount, Rs.50/- per day was given to him as food expenses. It has also come in the evidence that the deceased was driving the vehicle daily. The Tribunal thereafter, considered the Minimum Wages Notification dated 1.7.2019, whereby, the minimum wages from 1.4.2019 in respect of skilled labour was fixed as Rs.9120/- per month and assessed the income of the deceased as Rs.10,850/- per month, adding the variable D.A. of Rs.1730/-. Thus, the annual income of the deceased was assessed as Rs.1,48,450/- . 1/4th was deducted on account of personal expenses and 25% enhancement was granted on account of future prospect. The multiplier "13" was applied since the deceased was aged about 48 years.

9. After going through the award, I find that no illegality has been committed by the tribunal in assessing the compensation amount, wherein, the tribunal has concluded that the claimants are entitled to receive Rs.18,80,679/- as amount of compensation. Monthly income of the deceased was correctly assessed by the Tribunal.

10. So far as effective driving licence of the offending vehicle is concerned, the tribunal has rightly observed that the onus was upon the owner and driver of the offending vehicle and they failed to substantiate that the offending vehicle was being driven with a valid driving licence. The tribunal, thereafter, held that the claimants are entitled to Rs.18,80,679/- as compensation along with interest @6% per annum holding that the insurance company will have right to recover the aforesaid amount under Section 149 of the M.V.Act.

11. Since the right of recovery has already been granted in favour of Insurance Company, I am of the opinion that the interest of the Insurance Company has been duly protected. Thus, I am not inclined to interfere with the Judgment and Award. Accordingly, this appeal is dismissed.

I.A. No. 2910/2021 This application has been filed for staying the execution proceeding in Execution Case No. 08/2020, filed for realization of awarded amount against the award dated 20.11.2020, pending in the court of District Judge-I-cum-Motor Vehicles Accident Claims Tribunal, Bermo at Tenughat, Bokaro.

Since the main appeal stood dismissed, this interlocutory application is also dismissed.

Anu/-CP-2                                                 (ANANDA SEN, J.)