National Insurance Company ... vs Rupa Devi & Others
2021 Latest Caselaw 2400 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 600 of 2019
                            ........

National Insurance Company Limited .... ..... Appellant Versus Rupa Devi & Others .... ..... Respondents With M.A. No. 604 of 2019 ........

National Insurance Company Limited .... ..... Appellant Versus Shanti Gorain & Others .... ..... Respondents

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

For the Appellant               : Mr. Manish Kumar, Advocate
For the Respondents             :

                                    ........
04/19.07.2021.

Heard, learned counsel for the appellant, Mr. Manish Kumar. M.A. No.600/2019 The National Insurance Company Limited has preferred this appeal against award dated 17.09.2018 passed by learned District Judge-I-cum-P.O.-MACT, Dhanbad in Motor Accident Claims Case No. 225/2015, whereby the claimants namely, (1) Rupa Devi (2) Ankit Saw, (3) Prince Kumar Sao and (4) Raja Ram Saw (Claimant no.2 Ankit Saw and claimant No.3 Prince Kumar Sao are the minors represented through their mother Rupa Devi) have been awarded compensation to the tune of Rs.10,63,000/- along with interest @ 6% per annum from the date of filing of this case to be paid within one month from the date of award.

Learned counsel for the appellant has submitted that the appeal has been preferred with delay of 309 days and for condonation of the same, I.A. No.11481/2019 has been preferred.

Learned counsel for the appellant has submitted that the appeal has been preferred on the ground that while computing the compensation, the learned Tribunal has given 40% of the future prospect as the deceased was 32 years of age i.e. below 40 years in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680, but the deduction under personal and

living expenses of the deceased has not been considered in view of the judgment passed by the Apex Court in the case of Sarla Verma Vrs. Delhi Transport Corporation reported in (2009) 6 SCC 121 (Para-30) at the time of granting future prospect.

Learned counsel for the appellant has submitted that it was an error which has been committed by the court below, as future prospect should have been given on the amount that comes after deduction towards personal and living expenses but learned Tribunal has erred in granting future prospect on total amount.

Learned counsel for the appellant has thus submitted that the computation of 40% of Rs.8,64,000/- is an apparent error, which ought to have been 40% of Rs.6,48,000/-.

Learned counsel for the appellant has further submitted that though the Insurance Company has pleaded in the written statement that owner of the Truck bearing registration No. JH-10K-0763 was not holding valid permit to ply the vehicle, but, Insurance Company has not been given right to recover.

Learned counsel for the appellant has submitted that notice may be issued to the claimants as well as owner of the offending vehicle.

Since the issue has not been framed with regard to violation of terms and condition of the policy as envisaged under Section 149 (2) of the Motor Vehicles Act.

This ground taken by the appellant-Insurance Company against the owner of the vehicle is not sustainable in view of the judgment passed by the Apex Court in the case of Ramchandra Vs. Regional Manager United India Insurance Company Limited reported in (2013) 12 SCC 84. Para-26 of the aforesaid judgment is profitably quoted hereunder:-

"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 realize the amount of compensation beyond Rs.32,091/- from the insured/owner as the plea of the respondent/insurance company althrough 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 Accident 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 Accident 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 straight away at the appellate stage."

Accordingly, the ground taken by learned counsel for the appellant against the owner is hereby rejected.

Let notice be issued to the claimants / respondent nos.1 to 4 namely, (1) Rupa Devi (2) Ankit Saw, (3) Prince Kumar Sao and (4) Raja Ram Saw, on first point with regard to computation of compensation regarding to 40% as future prospect on the basis of wrong calculation as well as in limitation matter, 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 a period of two weeks.

M.A. No.604/2019 The National Insurance Company Limited has preferred this appeal against award dated 03.10.2018 passed by learned District Judge-I-cum-P.O.-MACT, Dhanbad in Motor Accident Claims Case No. 226/2015, whereby the claimants namely, (1) Shanti Gorain (2) Dipak Gorai (3) Suraj Gorai (4) Sanjay Gorai and (5) Sami Bala Dasi (Claimant nos.2 to 4 are minors, who are represented by their natural guardian, mother, claimant no. 1 Shanti Gorain) have been awarded compensation to the tune of Rs.8,26,000/- along with interest @ 6% per annum from the date of filing of this case to be paid within one month from the date of award.

Learned counsel for the appellant has submitted that the appeal has been preferred with delay of 313 days and for condonation of the same, I.A. No.11487/2019 has been preferred.

Learned counsel for the appellant has submitted that the appeal has been preferred on the ground that while computing the compensation, the learned Tribunal has given 25% of the future

prospect as the deceased was 45 years of age i.e. between 40 to 50 years in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680, but the deduction under personal and living has not been considered in view of the judgment passed by the Apex Court in the case of Sarla Verma Vrs. Delhi Transport Corporation reported in (2009) 6 SCC 121 (Para-30) at the time of granting future prospect.

Learned counsel for the appellant has submitted that it was an error which has been committed by the court below, as future prospect should have been given on the amount that comes after deduction towards personal and living expenses but learned Tribunal has erred in granting future prospect on total amount.

Learned counsel for the appellant has thus submitted that the computation of 25% of Rs.7,56,000/- is an apparent error, which ought to have been 25% of Rs.5,67,000/-.

Learned counsel for the appellant has further submitted that though the Insurance Company has pleaded in the written statement that owner of the Truck bearing registration No. JH-10K-0763 was not holding valid permit to ply the vehicle, but, Insurance Company has not been given right to recover.

Learned counsel for the appellant has submitted that notice may be issued to the claimants as well as owner of the offending vehicle.

Since the issue has not been framed with regard to violation of terms and condition of the policy as envisaged under Section 149 (2) of the Motor Vehicles Act.

This ground taken by the appellant-Insurance Company against the owner is not sustainable in view of the judgment passed by the Apex Court in the case of Ramchandra Vs. Regional Manager United India Insurance Company Limited reported in (2013) 12 SCC 84. Para-26 of the aforesaid judgment is profitably quoted hereunder:-

"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 realize the amount of compensation beyond Rs.32,091/- from the insured/owner as the plea of the respondent/insurance company althrough 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 Accident 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 Accident 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 straight away at the appellate stage."

Accordingly, second ground taken by learned counsel for the appellant against the owner of the offending vehicle is hereby rejected.

Let notice be issued to the claimants / respondent nos.1 to 5 namely, (1) Shanti Gorain (2) Dipak Gorai (3) Suraj Gorai (4) Sanjay Gorai and (5) Sami Bala Dasi on first point with regard to computation of compensation regarding to 25% as future prospect on the basis of wrong calculation as well as in limitation petition, 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 a period of two weeks.

Let these appeals be listed after service of notice.

(Kailash Prasad Deo, J.) Sunil-Jay/-