Branch Manager vs (1) Vidyawati Devi
2023 Latest Caselaw 610 Jhar

                                       1                           M.A. No. 245 of 2015




            IN THE HIGH COURT OF JHARKHAND, RANCHI
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M.A. No. 245 of 2015

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Branch Manager, National Insurance Company Ltd., Koderma, Jhumritelaiya, P.O. and P.S. Koderma, Jhumritilaya, District Koderma, represented through its Dy. Manager, Jharkhand Legal Cell, National Insurance Company Ltd., Ranchi Branch II premises, Kutchery Road, P.O. Ranchi, P.S. Kotwali, District-Ranchi (Insurer of the Vehicle under their Policy No.210502/32/1/01090/95-96 w.e.f. 22.12.95 to 21.12.1996) .... Opposite Party No.3/ Appellants

-- Versus --

(1) Vidyawati Devi, wife of late Ashok Kumar Pandey, resident of Village Jewada,, P.O. and P.S. Deori, District Giridih ... Claimant/Applicant/Respondent

(2) Ramakat Pandey, son of Bhuneshwar Pandey, resident of village Jewada,P.O. and P.S. -Deori,District-Giridih (Owner of the Vehicle bearing Registration No.BR-23-2606) .... Opposite Party No.1/Respondent

(3) Diwakar Singh, son of late Ambika Singh, resident of Village -Gardih, P.S. Raj Dhanwar, P.O. Dariyadih, District Giridih .... Opposite Party No.2/Respondent.

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellant/Insurance Co. :- Mr. G.C. Jha, Advocate For the Respondent nos.1&2 :- Mr. A.K.Sahani,Advocate Mr. Ajit Kumar, Advocate

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09/06.02.2023 Heard Mr. G.C. Jha, the learned counsel appearing on behalf

of the appellant/insurance company and Mr. A.K.Sahani, the learned

counsel appearing for the respondent nos.1 and 2.

By order dated 28.06.2022, on the submission of the

learned counsel appearing on behalf of the appellant/insurance company

that no relief is sought against the respondent no.3 and on his such

prayer, the name of the respondent no.3 was directed to be struck down.

This appeal has been filed being aggrieved and dissatisfied

with the judgment/award dated 11.03.2015, passed by learned District

Judge-cum-Motor Vehicle Accident Claims Tribunal, Court No.1, Giridih in

Title (MV) Suit No.02 of 2000, whereby the learned Tribunal has been

pleased to award Rs.3,61,000/- with interest @ 9% per annum from the

date of the judgment/award.

On 17.02.1992 at about 7 P.M. the deceased-Ashok Kumar

Pandey was going from his village Jawada to Raj Dhanwar by tractor

bearig no.BR-23-2606 and while he reached near village Gadi, the said

tractor turned turtle as a result of which deceased took his last breath on

account of injury sustained. It is further alleged in the claim application

that the deceased was aged about 35 years and his monthly income was

Rs.3000/- per month as well as his earning from agricultural sale

products was Rs.20,000/- per year.

Mr. G.C. Jha, the learned counsel appearing on behalf of the

appellant/insurance company submits that the accident took place on

17.02.1992 whereas the claim application has been filed in year 2000 i.e.

much belatedly. He submits that the F.I.R was lodged on the basis of

statement of the Chowkidar of that area and the charge sheet has been

submitted in which Ashok Kumar Pandey was said to be driving the

tractor in question and he was the deceased. He submits that on the oral

witnesses examined on behalf of the claimants, the learned Tribunal has

allowed the compensation case without appreciating these aspects of the

matter. He further submits that the awarded amount has also not been

calculated in accordance with law. Mr. Jha, the learned counsel further

submits that it is well settled that the accident took place due to

negligent driving of the driver, the claim is not maintainable and in that

view of the matter there are judgments of Hon'ble Supreme Court as well

as the coordinate Bench of this Court wherein the claim of the claimants

has been rejected.

In view of the submissions of the learned counsels for the

parties, the Court has gone through the L.C.R as well as the judgment of

the learned Tribunal and finds that admittedly the accident took place on

17.02.1992 and the claim was filed in the year 2000. From the impugned

judgment, it appears that after condoning the delay this compensation

case was admitted. Thus, the argument of the learned counsel appearing

for the appellant of filing the appeal belatedly is not sustainable. The

charge-sheet has been submitted against Ashok Kumar Pandey stating

therein that he was driving the tractor however, the four witnesses

examined on behalf of the claimants, who have stated that the vehicle

was not being driven by Ashok Kumar Pandey, rather it was being driven

by Diwakar Singh and considering that the oral evidence adduced on

behalf of the claimants, the learned Tribunal has held that Exhibit-5 is the

Original Driving License issued in favour of Diwakar Singh who was

driving the tractor in question and considering that neither oral evidence

nor any documentary evidence has been adduced on behalf of the

insurance company, the learned Tribunal held that Ashok Kumar Pandey

died on account of negligent driving by the driver Diwakar Singh. If such

a contention is being raised by the appellant, the onus lies upon the

appellant to demonstrate by way of adducing the evidence which has not

been done in the case in hand. Moreover in a written statement filed

before the learned Tribunal the insurance company has stated in clear

terms and in paragraph no.9 it has been averred that Ashok Kumar

Pandey was travelling on the tractor against the condition of the policy.

Thus, the plea being raised in this appeal is contradictory to the written

statement filed on behalf of the insurance company. Thus, the argument

advanced on behalf of the insurance company is not accepted by the

Court. So far as the third argument of the learned counsel appearing for

the appellant is concerned with regard to calculation with regard to

annual income to be deducted as 1/3rd in place of 1/4th is concerned, that

is not being accepted by the Court in view of the fact that the age of the

deceased was 35 years and the learned Tribunal has multiplied it 13 in

place of 16, moreover, on the point of consortium and funeral expenses

lesser amount has been allowed by the learned Tribunal and in that view

of the matter the point of calculation is not accepted by the Court.

There is no merit in this appeal and accordingly, M.A. No.

245 of 2015 is dismissed.

The statutory amount deposited before this Court shall be

transmitted back to the learned Tribunal to satisfy the award within six

weeks from the date of receipt/production of a copy of this order.

Let the L.C.R. be sent back to the learned court concerned

forthwith.

Pending petition, if any also stands disposed of.

( Sanjay Kumar Dwivedi, J.) SI/sk