Iffco Tokio General Insurance ... vs Meera Devi & Others
2021 Latest Caselaw 1988 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 08 of 2019
                            ........

Iffco Tokio General Insurance Company Ltd. .... ..... Appellant Versus Meera Devi & Others .... ..... Respondents

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

For the Appellant : Mr. Ashutosh Anand, Advocate.

For the Respondents              :
                                  ........
05/22.06.2021.

Heard, learned counsel for the appellant, Mr. Ashutosh Anand. Iffco Tokio General Insurance Company Ltd. has preferred this appeal against the award dated 18.09.2018 passed by learned District Judge-II-cum-Presiding Officer, MACT, Bermo at Tenughat in Motor Vehicle Claim Case No. 60/2013, whereby the claimant Meera Devi has been awarded compensation to the tune of Rs. 15,42,000/- along with interest @ 7 % per annum from the date of filing of the claim application i.e. 01.08.2013 till realization of the same.

Learned counsel for the appellant, Mr. Ashutosh Anand has assailed the impugned award on the ground that learned Tribunal has not considered the contributory negligence as the alleged accident in which deceased, Ashwini Sudhanshu lost his life, was a head on collision with the offending vehicle i.e. TATA Hyva dumper bearing registration No. JH10-AC-9503 and the deceased was not wearing helmet and the driving licence of the deceased has also not been produced as age of the deceased was 19 years, as such, this Court may set aside the impugned award.

Learned counsel for the appellant has further submitted that learned Tribunal has wrongly considered the income of the deceased to be Rs.10,000/-, which is excessive, as such, this Court may set aside the impugned award.

Learned counsel for the appellant has further submitted that notice had been issued to the Insurance Company and owner of the motorcycle on which the deceased was travelling and they have appeared and filed written statement but they did not produce the document for proper adjudication.

Learned counsel for the appellant has further submitted that issue has been framed that:- "Whether the claimant is entitled to get compensation and if so, what amount and from whom ?"

This issue has been decided against the appellant-Insurance Company, but without discussion, as such, impugned order may be set aside.

Learned counsel for the appellant has further submitted that interlocutory application vide I.A. No.1095/2020 has been preferred for condonation of delay of 45 days in preferring the appeal and I.A. No.1096/2020 has been preferred under Order XLI Rule 5 (s) of CPC read with Section 151 CPC for stay of the execution of the award in Execution Case No.33/2019 pending before the Court of learned Additional District Judge-II-cum-Presiding Officer, Motor Accident Claims Tribunal, Bermo at Tenughat.

Heard, learned counsel for the appellant and perused the impugned award, it appears that learned Tribunal has mentioned in para-3, which is quoted hereunder:-

"After getting notices of the claim case, O.Ps. No.1 and 2 who are the driver and owner respectively of the said offending TATA Hyva (Tipper), have appeared and filed their joint Written Statement (W/S) dated 24.07.2014. O.P. No.3, Iffco Tokio General Insurance Co. Ltd. has failed to file its written statement (W.S.) despite its appearance hence, it has been debarred from filing the same vide order dated 15.12.2014."

Under the aforesaid circumstances, in absence of any pleading by the Insurance Company, this Court cannot look into appeal on a ground, which has not been agitated before the learned Tribunal in view of judgment passed by Apex Court in the case of Ramchandra Vs. United India Insurance Company Ltd. reported in (2013) 12 SCC 84 (Para-26).

Accordingly, the Miscellaneous Appeal is hereby dismissed. I.A. No.1095/2020 and I.A. No.1096/2020 are also dismissed. The statutory amount deposited by the Insurance Company shall be remitted to the learned Tribunal within a period of four weeks from today by learned Registrar General of this Court so as to disburse the same to the claimant after due notice and verification. It is expected that balance

amount of award shall be indemnified by the Insurance Company within a reasonable period as the accident is of dated 11.03.2013.

On this learned counsel for the appellant, Mr. Ashutosh Anand has submitted that since attachment order has been issued, as such, Insurance Company want to indemnify the awarded amount within a period of 90 days, as such, such time may be granted.

Considering the same, learned counsel for the appellant is directed to indemnify the awarded amount as awarded by the Tribunal within a period of 90 days. The warrant / execution order issued by the executing court i.e. by the Court of learned Additional District Judge-II-cum- Presiding Officer, Motor Accident Claim Tribunal, Bermo at Tenughat in Execution Case No.33/2019 shall remain stayed for next 90 days only.

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