The New India Assurance Company ... vs Beronika Tirkey
2021 Latest Caselaw 2216 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   [Civil Miscellaneous Appellate Jurisdiction]
                          M.A. No. 101 of 2018
        The New India Assurance Company Ltd. .... .. ...                   Appellant(s)
                                     Versus
        1.Beronika Tirkey
        2.Jai Prakash Gope
        3.Ravi Gope
        4.Sushila Devi
        5.Md. Zakir Hussain                                     .. ... ... Respondent(s)
                                     With
                          M.A. No. 442 of 2018
        1.Beronika Tirkey
        2.Jai Prakash Gope
        3.Ravi Gope                                   .... .. ...          Appellant(s)
                                     Versus
        1.Sushila Devi
        2.Md. Zakir Hussain
        3.The New India Assurance Company Ltd.                  .. ... ... Respondent(s)
                          ...........

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

For the Appellant(s) : Mr. Ganesh C. Jha, Advocate ( M.A. No. 101 of 2018) Mr. Ashutosh Anand, Advocate (M.A. No. 442 of 2018) For the Resp. 1, 2 & 3 : Mr. Ashutosh Anand, Advocate (M.A. No. 101 of 2018) For the Resp. No.3 : Mr. Ganesh C. Jha, Advocate ( M.A. No. 442 of 2018) ..........

09 / 06.07.2021. Since both the aforesaid Misc. Appeals are arising out of a common Award, as such, both the appeals are being heard together and disposed of by a common Judgment.

Heard, learned counsel for the parties.

Mr. Ashutosh Anand, learned counsel for the claimants and Mr. Ganesh C. Jha, learned counsel for the Insurance Company have preferred separate Misc. Appeal assailing the common Award dated 08.09.2017 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi, in Motor Vehicle Accident Claim Case No.287 of 2012, whereby the claimants, namely, 1.Beronika Tirkey, W/o Late Sidheshwar Gope, 2.Jai Prakash Gope S/o Late Sidheshwar Gope and 3.Ravi Gope, S/o Late Sidheshwar Gope, all residents of Village- Piska Railway Station, P.O. & P.S.- Nagri, District- Ranchi, have been awarded a compensation to the tune of Rs.28,23,930/- to be paid by the New India Assurance Company Ltd. through account payee cheque drawn in the name of applicant No.1, Beronika Tirkey, wife of the deceased, within 30 days from the date of the Award along with interest @9% per annum from the date of admission of claim application under Section 166 of M.V. Act i.e. 05.01.2013 till realization of amount.

However, in Page-12 at Para-11 of the impugned Award, it is observed that O.P. No.3-New India Assurance Company Limited has right to recover the said amount against O.P. No.1, Sushila Devi, W/o Ghanshyam Mahto, R/o Lohra Toli, Katamkuli, P.O. & P.S. Pithoria, District, Ranchi, owner of the offending vehicle at the material time of the accident.

Mr. Ganesh C. Jha, learned counsel for the appellant- Insurance Company (in M.A. No.101 of 2018) has assailed the impugned Award on the ground that tax component of the salary of the deceased, namely, Sidheswar Gope has not been deducted by the learned Tribunal whose earning has been considered by the learned Tribunal to the tune of Rs.22,244/- per month including basic pay, grade pay, HRA, D.A. and transport allowance, out of these, transport allowance of Rs.1320/- was provided to the deceased for his personal expenses for travelling for official purposes and it is not part of his income after its deduction, the learned Tribunal has considered income of the deceased as Rs.20,924/- per month and annual income as (Rs.20,924/- X 12) Rs.2,51,088/- which was a taxable income at the time of accident i.e. on 06.07.2012, as up to Rs.2 Lacs there was tax exemption, but Rs.51,088/- was a taxable income @10%, as such, Rs,5100.08/- was not deducted by the learned Tribunal.

Mr. Ganesh C. Jha, learned counsel for the Insurance Company has assailed the impugned award on another ground that interest has been awarded @9% per annum from the date of admission of claim application, which ought to have been @7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons vs. UP State Road Transport Corporation, reported in 2008(4) JCR 79 SC.

Mr. Ganesh C. Jha, learned counsel for the Insurance Company has further submitted that right of recovery has not been mentioned /referred in the operative part of the impugned Award under the heading of "Order", which ought to have been made.

Mr. Ashutosh Anand, learned counsel for the claimants has submitted that in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680, the income has been defined at Para-59.3, whereby only the tax component has to be deducted. The travelling allowance has wrongly been deducted by the learned Tribunal as it is a loss to the dependents. Had the deceased been alive then this amount would have been used by the dependents for their benefits.

Mr. Ashutosh Anand, learned counsel for the claimants has submitted that income has been calculated on the lower side which ought to have been on the basis of the income including the travelling allowance of Rs.1,320/-.

Mr. Ashutosh Anand, learned counsel for the claimants has thus, submitted that it is true that tax component has to be deducted, but under the conventional head less amount to the tune of Rs.45,000/- has been granted by the learned Tribunal though the claimants are entitled for amount of Rs.70,000/- [for loss of Estate as Rs.15,000/-, loss of consortium as Rs.40,000/- and for funeral expenses as Rs.15,000/-] in view of the judgment passed by the Apex Court in the case of Pranay Sethi (supra), at Para 59.8.

Mr. Ashutosh Anand, learned counsel for the claimants has further submitted that the right of recovery has been granted in favour of the Insurance Company and the said order has not been assailed by the owner of the offending vehicle, Sushila Devi, W/o Ghanshyam Mahto, R/o Lohra Toli, Katamkuli, P.O. & P.S. Pithoria, District, Ranchi, as such, this order has to be considered by the executing court when execution case will be preferred by the Insurance Company before the Executing Court after satisfying the impugned Award to the claimants, in view of the judgment passed by the Apex Court in the case of Oriental Insurance Co. Ltd. vs. Nanjappan & Ors., reported in (2004) 13 SCC 224, but he has fairly submitted that since there is every chance of change in quantum of compensation, as such, notice may be issued to the owner of the offending vehicle, namely, Sushila Devi.

Under the aforesaid circumstances, let notice be issued to the owner of the offending vehicle, namely, Sushila Devi W/o Ghanshyam Mahto, R/o Lohra Toli, Katamkuli, P.O. & P.S. Pithoria, District, Ranchi, in both the Appeals, under both process i.e. under Registered Cover with A/D as well as under ordinary process, for which, requisites etc., must be filed within one week.

Put up this case after service of notice.

(Kailash Prasad Deo, J.) Sandeep/