Jharkhand High Court
The Divisional Manager vs Tannu Tirkey & Others on 24 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 121 of 2018
........
The Divisional Manager, The New India
Assurance Company Limited .... ..... Appellant
Versus
Tannu Tirkey & Others ..... ..... Respondents
WITH
M.A. No. 264 of 2018
........
Tannu Tirkey & Others .... ..... Appellants
Versus
The Divisional Manager, The New India
Assurance Company Limited & Another ..... ..... Respondents
.... .....
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellant : Mr. G.C. Jha, Advocate.
For the Respondents :
[In M.A. No. 121/2018]
For the Appellants : Mr. Nikhil Ranjan, Advocate.
For the Respondents :
[In M.A. No. 264/2018]
........
04/24.03.2021.
Heard, learned counsel for the appellant, Mr. G.C. Jha in M.A.
No. 121/2018, which has been preferred by the New India Assurance
Company Limited.
Learned counsel for the appellant has submitted that the New
India Assurance Company Limited has preferred this appeal on three
counts:-
(1) The income of the deceased has been considered excess on the
basis of oral evidence of Rs. 8,000/- per month;
(2) The learned Tribunal has considered the father, brother and
unmarried sister to be dependent on the deceased;
(3) The vehicle was driven without valid and effective route
permit, though the learned Tribunal has given right to recovery in
favour of the Insurance Company from the owner of the offending
vehicle after indemnifying the award but liability ought to have been
fastened upon the owner of the vehicle.
Learned counsel for the appellant-Insurance Company has
further submitted that the interest has been awarded @ 9% per
annum from the date of admission of claim application, which ought
to have been @7.5% from the date of admission of claim application
as after payment of the ad interim compensation on 16.08.2012, the
appeal was only admitted on 17.03.2015 under Section 166 of the
Motor Vehicles Act, as such, the learned Tribunal has rightly granted
interest from the date of admission.
Learned counsel for the appellant - Insurance Company has
submitted that there is delay of 127 days in preferring the appeal and
for condonation of the same, I.A. No. 2221/2018 has been preferred.
Learned counsel for the appellants, Mr. Nikhil Ranjan in M.A.
No. 264/2018 appearing for the claimants namely, (1) Tannu Tirkey,
wife of Late Pradeep Tirkey @ Pradeep Oraon, (2) Anurag Tirkey,
(minor), son of Late Pradeep Tirkey @ Pradeep Oraon, (3) Tulsi
Oraon, son of Late Burwa Oraon and father of Late Pradeep Tirkey
@ Pradeep Oraon, (4) Charia Orian, wife of Tulsi Oraon and mother
of Late Pradeep Tirkey @ Pradeep Oraon, (5) Kuldeep Tirkey, son of
Tulsi Oraon and brother of Late Pradeep Tirkey @ Pradeep Oraon
and (6) Aneta Tirkey, daughter of Tulsi Oraon and sister of Late
Pradeep Tirkey @ Pradeep Oraon has submitted that claimants have
preferred this appeal for enhancement of the same impugned award
dated 01.08.2017 passed by learned Presiding Officer, Motor
Vehicles Accident Claims Tribunal, Ranchi in Motor Accident
Claims Case No. 33 of 2011, whereby the claimants have been
awarded compensation to the tune of Rs. 12,91,000/- along with
interest @ 9% per annum from the date of admission of the claim
application under Section 166 of the Motor Vehicles Act i.e.
17.03.2015 till realization of the awarded amount. However, liberty
has been given to the Insurance Company to recover the said amount
from the opposite party no. 1 i.e. M/s Shiv Shakti Enterprises,
Partner Lal Sujeet Nath Sahdeo, Latehar, P.O. & P.S. - Latehar,
District - Latehar (Owner of Tanker No. UP-65R-9833) after
indemnifying the award.
Learned counsel for the appellants - claimants has submitted
no contrary evidence has been brought on record by the Insurance
Company to assail the income of deceased of Rs. 8,000/- per month
as claimed by the claimants and the learned Tribunal after
considering the oral evidence and the size of the family has
considered the income to deceased as Rs. 8,000/- per month.
Learned counsel for the appellants - claimants has further
submitted that future prospect of the deceased has not been
considered in view of the judgment passed by the Apex Court passed
in the case of National Insurance Company Limited Vs. Pranay
Sethi & Others reported in (2017) 16 SCC 680 (Para-59.4). As the
deceased died at the age of 25 years, below the age of 40 years and
he was having fixed income working as Supervisor under a
Contractor, future prospect ought to have been @ 40% of the
income.
Learned counsel for the appellants - claimants has submitted
that under the conventional head, less amount has been paid i.e. Rs.
45,000/- instead of Rs. 70,000/- in view of the judgment passed by
the Apex Court in the case of Pranay Sethi & Others (Supra) (Para-
59.8) i.e. Rs. 15,000/- as loss of estate, Rs. 40,000/- as loss of
consortium and Rs. 15,000/- as funeral expenses.
Learned counsel for the appellants - claimants has submitted
that interest ought to have been given from the date of filing in view
of Section 171 of the Motor Vehicles Act, if no specific reason has
been assigned by the learned Tribunal for fixing it from the date of
admission as nothing has been brought on record to suggest that the
delay in admitting the appeal can be attributed to the appellants -
claimants as appellants-claimants have preferred the claim
application under Section 166 of the Motor Vehicles Act in the year
2011, as such, interest ought to have been given from the date of
institution of the claim application.
Learned counsel for the appellants - claimants has further
submitted that no pleading or evidence has been brought on record
by the Insurance Company to establish that father of the deceased,
brother of the deceased and unmarried sister of the deceased are not
dependent upon the income of the deceased, rather the evidence
brought on record completely suggest that the deceased was the
earning member of the entire family and as such, the submission
made by the learned counsel for the Insurance Company may not be
accepted.
Learned counsel for the appellants - claimants has further
submitted that there is delay of 191 days in preferring the appeal and
if enhancement is made in the appeal, the owner of the vehicle is
necessary party.
Considering the rival submission of the parties, let notice be
issued in M.A. No. 264/2018 to M/s Shiv Shakti Enterprises, Partner
Lal Sujeet Nath Sahdeo, Latehar, P.O. & P.S. - Latehar, District -
Latehar (Owner of Tanker No. UP-65R-9833) under both process i.e.
under registered cover with A/D as well ordinary process, for which
requisites etc. must be filed within a period of two weeks from today.
Let the appeals be listed after service of notice upon the owner
of the offending vehicle.
(Kailash Prasad Deo, J.)
Sunil/-
