Poonam Gupta vs Anju Sharma
2021 Latest Caselaw 2068 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Miscellaneous Appellate Jurisdiction)
                          M.A. No. 263 of 2020
                                ......

1. Poonam Gupta

2. Rahool Kumar Gupta

3.Puja Kumari

4. Seema Kumari

5.Tara Devi ...... Appellants Versus

1. Anju Sharma

2.Punit Singh

3.The Branch Manager, IFFCO-TOKIO General Insurance Co. Ltd, Ranchi .......Respondents With M.A. No. 537 of 2018 ...... ......

Branch Manager, IFFCO-TOKIO General Insurance Co. Ltd., West Bengal ....... Appellant Versus

1.Poonam Gupta

2. Rahool Kumar Gupta

3.Puja Kumari

4. Seema Kumari

5.Smt.Tara Devi

6.Anju Sharma

7.Punit Singh .......Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) For the Appellant(s) : Mr. Prabhat Kr. Sinha, Advocate (In M.A. No.263/2020) : Mr. Ashutosh Anand, Advocate (In M.A. No.537/2018) For the Resp. Nos.1 to 5 : Mr. Prabhat Kr. Sinha, Advocate (In M.A. No.537/2018) Mr. Ashutosh Anand, Advocate (In M.A. No.263/2020) ..........

05/Dated: 28/06/2021.

1. Both the 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.

2. Heard, learned counsel for the parties.

3. The Insurance Company as well as claimants both have assailed the impugned award dated 31.03.2018 passed by learned Principal District Judge- cum-M.A.C. Tribunal, Palamau at Daltonganj in MAC Case No.65 of 2012 whereby the claimants, namely, 1.Poonam Gupta, 2.Rahool Kumar Gupta, 3.Puja Kumari, 4.Seema Kumari and 5.Smt. Tara Devi have been awarded compensation to the tune of Rs.18,01,392/- along with interest @ 6% per annum from the date of filing of the claim application i.e. 17.12.2012.

4. Both the appeals have been preferred with delay. The Insurance Company has filed I.A. No.1939 of 2020 (in M.A. No.537 of 2018) for condonation of delay of 48 days whereas the claimants have filed I.A. No.5144 of 2020 (in M.A.

No.263/2020) for condonation of delay of 816 days in preferring the appeals before this Court.

5. Learned counsel for the Insurance Company, Mr. Ashutosh Anand has submitted that the reason assigned by the claimants at paras 6 and 7 of the Interlocutory Application to condone the delay is itself contradictory, as they have already preferred Execution Case before the learned Tribunal in the year 2019. A contrary view has been taken by the claimants which is self- contradictory, as such, delay in preferring the appeal by the claimants may not be condoned.

6. Learned counsel for the claimants has opposed the prayer and submitted that the claimants are the poor sufferers being widow, minor children and old mother of the deceased and there is also delay of 48 days in preferring the appeal by the Insurance Company. As such, plea of the Insurance Company cannot be accepted for rejecting the interlocutory application for the condonation of delay of 816 days in a benevolent legislation.

7. Learned counsel for the Insurance Company, Mr. Ashutosh Anand has assailed the impugned award on the ground that offending vehicle was never insured before the IFFCO TOKIO General Insurance Co. Ltd. and the learned Tribunal has wrongly considered the money receipt issued by O.P.W. No.3 (Navin Gupta), though the Insurance Company has already cancelled /rejected the proposal of the Insurance cover note of the offending vehicle on 29.10.2012.

8. Learned counsel for the Insurance Company has relied upon Section 147(3) of the MV Act. Section 147(3) of the MV Act may profitably be quoted:-

"(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected, a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases."

9. Learned counsel for the Insurance Company has further submitted that the learned Tribunal has wrongly considered the money receipt issued by the Navin Gupta, (O.P. No.3) and agent of Insurance Company, which has been brought on record as Exhibit-B to be a cover note.

10. Learned counsel for the Insurance Company has further submitted that the money was received by the agent, Navin Gupta and the same was also returned by the agent to the owner of the offending vehicle, as such, no money has been given or paid to the Insurance Company in the account.

11. Learned counsel for the Insurance Company has further submitted that

under the aforesaid circumstances, the money has been returned to the insured by the Insurance Company, as such, no award can be passed against the Insurance Company.

12. Learned counsel for the Insurance Company has further submitted that the agent of the Insurance Company has been examined on behalf of the Insurance Company as O.P.W. No.3 (Navin Gupta), who has categorically stated the same in paras 3, 6 and 7 in his examination-in-chief, which may profitably be quoted hereunder:-

"3. ;g fd cl ch-bZ-,u-&6656 dh izheh;e jde :- 31][email protected]& ;wfu;u cSad vkWQ bafM;k 'kk[kk MkyVuxat dk psd ua-007905 fnukad 26-10-2012 dk fn;k tks /kesZUnz 'kekZ ds }kjk gLrk{kfjr FkkA 6- ;g fd bQdks Vksfd;ks tsujy bUlksjsUl dEiuh ds jkWaph dk;kZy; vius i= fnukad 29-10-2012 ds ek/;e ls iziksty dSUlys'ku ds ckjs esa fot; 'kekZ dks lwfpr fd;kA 7- ;g fd cl la- ch-bZ-,u-&6656 dk bUlksjsUl iziksty vLohd`r gks tkus ds dkj.k eSaus izheh;e dk jde vius ,Dlhl cSad ds [kkrs dk ek/;e ls bUgsa okil dj fn;kA"

13. Learned counsel for the Insurance Company has thus, submitted that vehicle was not insured and the learned Tribunal has wrongly considered the money receipt to be cover note and there is discrepancy in the mode of payment and the money was also returned on 29.10.2012, on the date of accident itself.

Learned counsel for the Insurance Company has further submitted that OD i.e. own damage claim of the owner of the vehicle has been rejected/repudiated by the Insurance Company against which the owner has preferred application before the consumer forum. The said case was dismissed and thus, submitted that if the liability is fixed upon the Insurance Company, then right to recover may be granted in favour of the Insurance Company.

14. Learned counsel for the Insurance Company has further submitted that the vehicle was without permit, as such, right of recovery ought to have been granted in favour of the Insurance Company.

15. Learned counsel for the Insurance Company has assailed the impugned award so far claimants are concerned, on the ground that quantum of compensation, which is excessively granted by the learned Tribunal.

16. Learned counsel for the Insurance Company has further submitted, that the learned Tribunal has wrongly considered, the income of the deceased as the assessment year, 2010-2011 shows the income of the deceased to be 1,61,000/- (Exhibit-1), assessment year, 2011-12 as Rs.1,51,692/- (Exhibit-1/1) and assessment year 2012-13, the income has been shown as Rs.2,86,135/- (Exhibit- 1/2) whereas the deceased has died in a motor vehicle accident on 29.10.2012, as such, after death such income which was initially reduced for the assessment year

2011-12 has shown steep rise after the death for the assessment year 2012-13, as such, this income may be reduced, as Exhibits-1, 1/1 and ½ have not been properly considered by the learned Tribunal. In support of his argument, learned counsel for the appellant has relied upon the judgment in the case of V.

Subbulakshmi v. S. Lakshmi, reported in 2008 (4) SCC 224 at paras 20-22, which may profitably be quoted hereunder:-

"20. So far as the question in regard to the quantum of compensation awarded in favour of the appellants is concerned, we are of the opinion that the High Court has taken into consideration all the relevant evidences brought on record.

21. The accident took place on 7-5-1997. Income tax returns were filed on 23-6- 1997.

22. The income tax returns (Ext. P-14), therefore, have rightly not been relied upon."

17. Learned counsel for the Insurance Company in support of his submission has also placed reliance in the case of Vimal Kanwar & Ors. vs. Kishore Dan & Ors. reported in 2013 (3) JCR 197 (SC) at para 21, which may be profitably quoted hereunder:-

"21. The third issue is "whether the income tax is liable to be deducted for determination of compensation under the Motor Vehicles Act".

In the case of Sarla Verma [Sarla Verma (supra), this Court held "generally the actual income of the deceased less income tax should be the starting point for calculating the compensation."

This Court further observed that "where the annual income is in taxable range, the words 'actual salary' should be read as 'actual salary less tax'. Therefore, it is clear that if the annual income comes within the taxable range, income tax is required to be deducted for determination of the actual salary. But while deducting income tax from the salary, it is necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head "salaries" one should keep in mind that under Section 192(1) of the Income Tax Act, 1961 any person responsible for paying any income chargeable under the head "salaries" shall at the time of payment, deduct income tax on estimated income of the employee from "salaries" for that financial year. Such deduction is commonly known as tax deducted at source ("TDS", for short). When the employer fails in default to deduct the TDS from the employee's salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1-A) of the Income Tax Act, 1961. Therefore, in case the income of the victim is only from "salary", the presumption would be that the employer under Section 192(1) of the Income Tax Act, 1961 has deducted the tax at source from the employee's salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However, there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary, and the annual income falls within taxable range, in such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income."

18. Learned counsel for the claimants, Mr. Prabhat Kumar Sinha has submitted that quantum of compensation has wrongly been considered by the learned Tribunal rather it should have considered on the basis of last income of the deceased for the assessment year 2012-13 (Exhibit-1/2), which is actually the

financial year 2011-12, meaning thereby, the income accrued to the deceased from 01.04.2011 to 31.03.2012 is shown in the assessment year, 2012-13 (Exhibit-1/2).

19. Learned counsel for the claimants has further submitted that a person can increase his income because of expertise and experience, but if the income tax department has accepted the income of the deceased from 01.04.2011 to 31.03.2012 in the month of December, 2012, there is no illegality in consideration of such income, but calculating the average income on the basis of the previous year income by the learned Tribunal is not in true spirit in a benevolent legislation, as such, learned Tribunal ought to have considered the last income of the deceased for granting compensation in a benevolent legislation as said income is upto 31st March, 2012 where as deceased died on 29.10.2012, as such, judgments relied upon by the Insurance Company are not applicable in the facts of the present case.

20. Learned counsel for the claimants, Mr. Prabhat Kumar Sinha has assailed the impugned award also on the ground that future prospect of the deceased has not been considered by the learned Tribunal, which ought to have been 25% 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 at para 59.4 as the deceased was aged about 46 years 9 months 20 days.

21. Learned counsel for the claimants has further submitted that the simple interest has been awarded @ 6% per annum which ought to have been @7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation, reported in (2008) 4 JCR 79 SC and this Court has also taken consistent view of granting interest @ 7.5% from the date of filing of the claim application in view of Section 171 of the MV Act.

22. Learned counsel for the claimants has further submitted that the learned Tribunal has wrongly deducted 1/3rd towards personal and living expenses of the deceased, where five persons are dependents upon the deceased, as such, it ought to have been deducted as 1/4th in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121, paras 30, as such, amount may be enhanced.

23. Learned counsel for the claimants has further submitted, that whatever the Insurance Company is agitating before this Court those have never been agitated before the learned Tribunal. The purpose of taking such plea by the Insurance

Company is only to delay the disposal of the appeal.

24. Learned counsel for the claimants has further submitted that much argument has been advanced by the learned counsel for the appellant, that Section 147(3) has not been complied with by the learned Tribunal while considering the money receipt issued by the agent, Navin Gupra as a cover note.

25. Learned counsel for the claimants has submitted, that it is surprising that this Exhibit-B categorically shows that cover note book is of out of stock, which is underlined by the IFFCO TOKIO General Insurance Co. Ltd. even then the Insurance Company is taking a plea that compliance of Rule 142 of the Central Motor Vehicle Rule has not been considered by the learned Tribunal. It is surprising that if the Insurance Company is accepting the premium without complying the Rule 142 of the Central Motor Vehicle Rules, then they are committing breach of regulation and terms and conditions of the licence granted by the Insurance Regulatory Development Authority and thus cannot be allowed to do so even after issuance of cover note of policy.

26. Learned counsel for the claimants, Mr. Prabhat Kumar Sinha has placed Exhibit-B where it has been categorically mentioned that cover note book is out of stock and third party risk covered under manual Cover Note No.1/CVI-RNC/12- 13/00469 dated 26.10.2012. It has been mentioned over the manual cover note, which states that:- "Pleased be informed that the risk mentioned in the table below are held duly covered by us under the above no.".

PARTICULAR                              SUM INSURED
MANUFACTURE TATA                        THIRD PARTY COVERAGE ONLY
MODEL BUS                               TIME: 3.45 PM
Y.O.M 1987
ENGINE NO.692d23269316
CHASIS NO.344050261753

The copy of exhibit-B has been mailed to this Court by the learned counsel for the claimants, Mr. Prabhat Kumar Sinha and both sides have placed reliance over it.

27. Learned counsel for the claimants has further submitted that in the said Exhibit-B, it has been mentioned that third party risk coverage under manual Cover Note No. 1/CVI-RNC/12-13/00469 has been issued on 26.10.2012 at 3.45 PM with regard to the bus of the owner, namely, Vijay Sharma having engine No.692D23269316 and Chasis No.344050261753 for a sum of Rs.31,264/-, which is admitted by the O.P.W. No.-3, Navin Gupta in his examination-in-chief at para 3 that premium amount of Rs.31,700/- with regard to bus bearing registration No.BEN-6665 was paid vide cheque no.007905 dated 26.10.2012 of Union Bank

of India, Daltonganj Branch by Dharmendra Sharma.

28. Learned counsel for the claimants has further submitted that in para 16 of the cross-examination, this witness has categorically stated that:- " bl xkM+h ls lEcfU/kr ikfylh tks dHkj uksV la[;k 1/CBI-RNC/12-13/00469 (izn'kZ B) tks bQdks VksD;ks tsujy bUl;qjsUl dEiuh dk gS ,oa thl ij fnukad 26-10-2012 gS esa fizfe;e ,ekmUV 31][email protected]& :i;k fy[kk gqvk gS ftl ij psd dk ua- ,oa dksbZ frfFk vadhr ugha gSA izn'kZ B esa vafdr gSA Policy document is under preparation and shall be forwarded to you shortly."

The witness has further stated in para 17 that izn'kZ B dk QkWesZV fnukad 26-10-2012 dEiuh dk Mksdqes.V gSA

29. Learned counsel for the claimants has thus, submitted that the issue which has never been agitated before the learned Tribunal by adducing sufficient evidence cannot be allowed to agitate in the court of appeal in view of the judgment passed by the Apex Court in the case of Ramchandra v. Regional Manager, United India Insurance Co. Ltd., reported in 2013 (12) SCC 84

30. Learned counsel for the claimants has further submitted that Section 64VB of the Insurance Act may profitably be quoted:-

"(1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.

(2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Explanation.--Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be.

(3) Any refund of premium which may become due to an insured on account of the cancellation of a policy or alteration in its terms and conditions or otherwise shall be paid by the insurer directly to the insured by a crossed or order cheque or by postal money order and a proper receipt shall be obtained by the insurer from the insured, and such refund shall in no case be credited to the account of the agent.

(4) Where an insurance agent collects a premium on a policy of insurance on behalf of an insurer, he shall deposit with, or despatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty-four hours of the collection excluding bank and postal holidays. (5) The Central Government may, by rules, relax the requirements of sub-section (1) in respect of particular categories in insurance policies.]"

31. Learned counsel for the claimants has thus submitted that these are the requirements under the Insurance Act and the evidence has been adduced by the agent O.P.W. No.3, Navin Gupta, as such, the Insurance Company has no locus in this appeal to assail the award on the ground that Insurance was not valid rather this matter requires interference and enquiry from the Insurance Regulatory Development Authority to look into the functioning of all the Insurance

Companies, who are very generous at the time of Insurance of vehicle, but they are very strict and miser at the time of indemnifying the claim, compelling the poor claimants to suffer in series of litigation on one issue or another.

32. Learned counsel for the claimants in support of his submission has put reliance upon the judgment passed by the Apex Court in the case of Oriental Insurance Co. Ltd. v. Inderjit Kaur, (1998) 1 SCC 371 at paras 9-12, which may profitably be quoted hereunder:-

"9. We have, therefore, this position. Despite the bar created by Section 64-VB of the Insurance Act, the appellant, an authorised insurer, issued a policy of insurance to cover the bus without receiving the premium therefor. By reason of the provisions of Sections 147(5) and 149(1) of the Motor Vehicles Act, the appellant became liable to indemnify third parties in respect of the liability which that policy covered and to satisfy awards of compensation in respect thereof notwithstanding its entitlement (upon which we do not express any opinion) to avoid or cancel the policy for the reason that the cheque issued in payment of the premium thereon had not been honoured.

10. The policy of insurance that the appellant issued was a representation upon which the authorities and third parties were entitled to act. The appellant was not absolved of its obligations to third parties under the policy because it did not receive the premium. Its remedies in this behalf lay against the insured.

11. We may note in this connection the following passage in the case of Montreal Street Rly. Co. v. Normandin [AIR 1917 PC 142] :

"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."

12. It must also be noted that it was the appellant itself who was responsible for its predicament. It had issued the policy of insurance upon receipt only of a cheque towards the premium in contravention of the provisions of Section 64-VB of the Insurance Act. The public interest that a policy of insurance serves must, clearly, prevail over the interest of the appellant."

33. Learned counsel for the claimants in support of his submission has also put reliance upon the judgment passed by the Apex Court New India Assurance Co. Ltd. v. Rula, (2000) 3 SCC 195 at paras 10 and 11, which may profitably be quoted hereunder:-

"10. The contract of insurance in respect of motor vehicles has, therefore, to be construed in the light of the above provisions. Section 146(1) contains a prohibition on the use of the motor vehicles without an insurance policy having been taken in accordance with Chapter XI of the Motor Vehicles Act. The manifest object of this provision is to ensure that the third party, who suffers injuries due to the use of the motor vehicle, may be able to get damages from the owner of the vehicle and recoverability of the damages may not depend on the financial condition or solvency of the driver of the vehicle who had caused the injuries.

11. Thus, any contract of insurance under Chapter XI of the Motor Vehicles Act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such contract. As pointed out by this Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani [AIR 1964 SC 1736] the rights of the third party to get indemnified can be exercised only against the insurer of the vehicle. It is thus clear that the third party is not concerned and does not come into the picture at all in the matter of

payment of premium. Whether the premium has been paid or not is not the concern of the third party who is concerned with the fact that there was a policy issued in respect of the vehicle involved in the accident and it is on the basis of this policy that the claim can be maintained by the third party against the insurer."

34. Mr. Prabhat Kumar Sinha, learned counsel for the claimants has further submitted that from bare reading of fact of the present case, it is admitted that premium was received by the authorized agent of the appellant- IFFCO-TOKIO General Insurance Co. Ltd., namely, Navin Gupta on 26.10.2012, the cover note was issued on 26.10.2012 at 3.45 p.m. The unfortunate accident took place on 29.10.2012 at 8.00 a.m. and at that time office of the Insurance Company was not open on 29.10.2012 and only after having knowledge of the accident, the Insurance Company has tried to shirk its financial liability by issuing a document on 29.10.2012 which is certainly issued after accident i.e. between the working time of the office, though the same document has never been exhibited before the learned Tribunal by the Insurance Company.

35. As such, Insurance Regulatory Development Authority is directed to look into such nefarious activities of the Insurance Compnay, who are very diligent at the time of taking money/premium for insurance, but taking all methods to repudiate the claim of the claimants after the untoward incident and loss of the bread earner.

36. Learned counsel for the claimants has further submitted that much argument has been advanced by the Insurance Company on the ground that insurance coverage has been cancelled, but from pleading of the Insurance Company, it appears that once they have accepted regarding Insurance Coverage then only they can cancel it. Once they have alleged that they have cancelled means that they have insured the vehicle and in absence of any documentary proof brought by the Insurance Company to the effect that vehicle was not insured on 29.10.2012 at 8.00 a.m., this plea of the Insurance Company is fit to be rejected by this Hon'ble Court with a heavy cost.

37. Learned counsel for the claimants has further submitted that though the issue of permit has been agitated by the Insurance Company before this Court only with a view to delay the disposal of Misc. Appeal, but no evidence has been adduced by the Insurance Company, as such, this issue is not available to the Insurance Company.

38. Learned counsel for the claimants in support of his submission has also placed reliance in the case of United India Insurance Co. Ltd. v. Santro Devi, (2009) 1 SCC 558 at paras 16 and 17, which may profitably be quoted hereunder:-

"16. The provisions of compulsory insurance have been framed to advance a social object. It is in a way part of the social justice doctrine. When a certificate of insurance is issued, in law, the insurance company is bound to reimburse the owner. There cannot be any doubt whatsoever that a contract of insurance must fulfil the statutory requirements of formation of a valid contract but in case of a third-party risk, the question has to be considered from a different angle.

17. Section 146 provides for statutory insurance. An insurance is mandatorily required to be obtained by the person in charge of or in possession of the vehicle. There is no provision in the Motor Vehicles Act that unless the name(s) of the heirs of the owner of a vehicle is/are substituted on the certificate of insurance or in the certificate of registration in place of the original owner (since deceased), the motor vehicle cannot be allowed to be used in a public place. Thus, in a case where the owner of a motor vehicle has expired, although there does not exist any statutory interdict for the person in possession of the vehicle to ply the same on road; but there being a statutory injunction that the same cannot be plied unless a policy of insurance is obtained, we are of the opinion that the contract of insurance would be enforceable. It would be so in a case of this nature as for the purpose of renewal of insurance policy only the premium is to be paid. It is not in dispute that quantum of premium paid for renewal of the policy is in terms of the provisions of the Insurance Act, 1938."

39. Learned counsel for the claimants has further submitted that as such, the Insurance Company in absence of any positive evidence cannot assail the impugned award on the ground that the said vehicle was not insured rather the learned Tribunal has given a correct finding that the vehicle was duly insured in the facts and circumstances of the case and judgments cited above.

40. Learned counsel for the claimants has thus, submitted that the appeal preferred by the claimants for enhancement of compensation may be allowed and the appeal preferred by the Insurance Company may be dismissed.

41. Learned counsel for the claimants in support of his submission has relied upon the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 at Para-8, which may profitably be quoted hereunder :-

"8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

42. Thus, it has been submitted that irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation as such, this Court has ample powers to consider compensation afresh since the quantum of compensation has been assailed by the Insurance Company as well as by the claimants for just and fair compensation.

43. Having heard, learned counsel for the parties and perusing the materials

available on record including the impugned Award as well as the document relied upon by both the learned counsels i.e. Exhibit-B and the evidence of O.P.W. No.3 (Navin Gupta), it appears that with respect to the issue which has been raised by the learned counsel for the Insurance Company with regard to coverage of Insurance of the offending bus, at the time of accident on 29.10.2012 at 8.00 a.m., the learned Tribunal has not committed error as held by the Apex Court in the case of Indrajit Kaur (supra), Rula & Ors. (supra) and Santro Devi (Supra) as well as the cover note i.e. Exhibit-B, which refers the 3rd party risk in view of the third party risk coverage under manual Cover Note No. 1/CVI-RNC/12-13/00469 dated 26.10.2012 as 3rd party coverage from 3.45 p.m. The evidence of O.P.W. No.3 particularly at Paras 16 and 17 of the cross-examination, nothing remains before this Court to adjudicate that the offending vehicle was not covered under the 3 rd party risk for insurance coverage.

44. However, the Insurance Regulatory Development Authority (IRDA) is directed to look into such matters, where the Insurance Company is denying the claim or delaying the claim or such pleas which are not available under the Act. If such pleas are taken by any Insurance Company, the Insurance Regulatory Development Authority (IRDA) is directed to look into such matters and take legal recourse available against them.

45. So far the compensation is considered, much has been argued by learned counsel of both the sides, that deceased (Ghanshyam Kumar Gupta) died on 29.10.2012 at 8 a.m. in a motor accident by an offending vehicle covered under the 3rd party risk at the age of 46 years 9 months 20 days, as such, this Court considers that in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt) at Para-42 the multiplier ought to have been 13 which covers the age-group of 46 -50 years.

46. So far deduction towards personal and living expenses is concerned, it ought to have been 1/4th in view of judgment passed by the Apex Court in the case of Sarla Verma (Smt) at Para-30 as the dependents of the deceased are 5 in number.

47. So far Future Prospect of the deceased is concerned, the deceased died below the age of 50 years, thus the Future Prospect ought to have been 25% in view of the judgment passed by the Apex Court in the case of Pranay Sethi (supra) at Para 59.4.

48. So far the amount under the conventional head is concerned, the same should be Rs.70,000/- i.e. for loss of estate as Rs.15,000/-, loss of consortium as Rs.40,000/- and funeral expenses as Rs.15,000/- in view of the judgment passed by Apex Court in the case of Pranay Setthi (Supra) at Para 59.8.

49. As such, now only the Court has to decide what is the income of the deceased.

In view of Exhibit-1 i.e. for the Assessment year 2010-11 and financial year 2009-10 the income of the deceased was Rs.1,61,000/- per annum, in assessment year 2011-12 and the financial year 2010-11 the income of the deceased was Rs.1,51,692/- (Exhibit-1/1) and in Assessment year 2012-13 and financial year 2011-12 the income of the deceased was Rs.2,86,135/- per annum (Exhibit-1/2). Admittedly the deceased (Ghanshyam Kumar Gupta) died on 29.10.2012.

50. The Financial year covers from 1st April of the year to 31st March of next year, meaning thereby, the income of assessment year 2012-13 was actual income of the financial years 2011-12 i.e. 1st April, 2011 to 31st March, 2012 to the tune of Rs.2,86,135/- meaning thereby this income was up to 31 st March, 2012 and since the deceased died on 29.10.2012, even though the return paper was not submitted in the month of June rather it was submitted in the Month of December, 2012, as such, the Insurance Company is not entitled to agitate this issue before this Court, as the same has not been agitated by bringing contrary evidence before the learned Tribunal. Once it has been admitted by the Income Tax Department of the Government of India, the Insurance Company being a Private Sector Unit cannot agitate this issue without bringing any contrary evidence before the learned Tribunal, as such, this Court has no reason to interfere with the average income of the deceased taken by the learned Tribunal. Accordingly, this Court feels that the same does not require any interference by this Court.

51. Hence, as per Exhibits-1, 1/1 and 1 /2 i.e. Rs.1,61,500/- + Rs.1,51,692/- and Rs.2,86,135/- (Total amount shall be divided by three), as such, the amount comes to Rs.1,99,775/- which this Court considers the same to be Rs.2 Lacs per annum as a round figure in a benevolent legislation. Considering income of the deceased of Rs. 2 Lacs per annum, the fresh calculation should be as follows :-

52. The new calculation chart would be as follows :-

 Annual Income                        Rs.2 lacs
 1/4th deduction towards personal and Rs.2    lacs    minus      Rs.50,000/-     =
 living expenses as dependents of the Rs.1,50,000/-
 deceased are five in number [Sarla
 Verma (Supra) para 30]

Multiplier as 13 as deceased was in Rs.1,50,000/- x 13 = Rs.19,50,000/- the age group of 46-50 [Sarla Verma (Supra) para 42] Future Prospect @ 25% [Pranay Rs.19,50,000/- + Rs.19,50,000/- x 25% Sethi (supra) at para 59.4] [Rs.4,87,500/-] = Rs.24,37,500/- Conventional Head [Pranay Sethi Rs.70,000/-

(supra) at para 59.8] Total Compensation Amount Rs.24,37,500/- + Rs.70,000/- = Rs.25,07,500/- with simple interest @ 7.5% per annum from the date of filing of the claim application till its realization.

53. Out of which, Rs.50,000/- shall be deducted, if paid under Section 140 M.V. Act and any other amount if the insurance company has already indemnified to the claimants shall also be deducted.

54. The statutory amount paid in M.A. No.537 of 2018 shall be remitted to the learned Tribunal by learned Registrar General of this Court within a period of four weeks from today. The said amount shall be disburshed to the claimants after due notice and verification by the learned Tribunal.

55. The balance amount of the quantum as calculated by this Court shall be indemnified by the Insurance Company within a period of 90 days as the accident is of dated 29.10.2012.

56. Accordingly, M.A. No.537 of 2018 is hereby dismissed whereas M.A. No.263 of 2020 is allowed.

57. Thus, both the Interlocutory Applications i.e. I.A. No.5144 of 2020 in M.A. No.263 of 2020 and I.A. No.1939 of 2020 in M.A. No.537 of 2018 are hereby allowed in a benevolent legislation.

58. Let a copy of this order be communicated through FAX to the Insurance Regulatory Development Authority by the Registry of this Court forthwith.

59. Learned counsel for the claimants has submitted that at the time of filing of the claim application, claimant nos.3 and 4 was minor children and now they have attained majority as such, the amount can distributed in equal shares.

60. Accordingly, the compensation amount be indemnified in equal shares to all the claimants.

(Kailash Prasad Deo, J.) sandeep/R.S.