Jharkhand High Court
Reliance General Insurance ... vs Joy Deb Dey on 31 January, 2023
1 M.A. No.414 of 2017
IN THE HIGH COURT OF JHARKHAND, RANCHI
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M.A. No. 414 of 2017
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Reliance General Insurance Company Limited, having its Office 4th Floor,
Chinta Mani Avenue, Off Western Express High Way Near Virwarni
Industrial Estate, Goregaon (East) Mumbai-400063 (Maharashtra), through
its Management Trainee Purnendu Chatterjee, son of Sankar Chatterjee,
residing at B-10/293 Kalyani, Nadia, PO and PS-Kalyani, District Kolkata
PIN No.741235 (West Bengal) .... Opposite Party No.2/Appellant
-- Versus --
1.Joy Deb Dey, son of late Narayan Chandra Dey
2.Padma Dey, wife of Joy Deb Dey
Both residents of Bastacola, Sonar Basti, Near Sarkari School, PO
Dhansar, PS Jharia, District Dhanbad (Jharkhand)
..... Claimants/Respondents
3.Prabhas Kumar Agarwal, son of Satya Narayn Agarwal, Karkend Bazar,
PO and P.S Kusunda, District Dhanbad (Jharkhand)
(Owner of the Truck bearing registration No.JH-10V-9521)
.... Opposite Party/Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant :- Mrs. Swati Shalini, Advocate
For the Claimants :- Mr. Rajiv Kumar Karn, Advocate
For the Resp.No.3 :- Mr. Kalyan Banerjee, Advocate
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9/31.01.2023 Heard Mrs. Swati Shalini, the learned counsel appearing for
the appellant, Mr. Rajiv Kumar Karn, the learned counsel appearing on
behalf of the claimants (Resp.Nos.1 and 2) and Mr. Kalyan Banerjee, the
learned counsel appearing on behalf of the respondent no.3.
This Miscellaneous Application has been filed against the
judgment and award dated 24.11.2016 passed by the learned District
Judge-XIV- cum-Motor Accidents Claims Tribunal, Dhanbad in Title (M.V.)
Case No.55 of 2014 whereby he has been pleased to direct the appellant
to pay compensation amounting to Rs.22,65,040/- along with the interest
@ 6% per annum from the date of filing of the claim application.
In the claim petition, it was alleged that on 05.08.2013, at
about 11 am while Bablu Dey and Suraj Kumar Verma were going to
Birsa Munda Park upon a motorcycle and reached Hirak Road, near
Kurmdih More, P.S. Govindpur, suddenly a truck bearing registration
no.JH-10V-9521 being driven in a very rash and negligent manner
dashed the motorcycle from the back side causing instant death of Bablu
Dey. An FIR being Govindpur (Barwadda) P.S.Case No.374 of 2013 was
registered under sections 279 and 304A of the I.P.C and the charge sheet
was submitted against the driver of the said truck. Earlier the deceased
was said to be earning Rs.13320/- per month by way of his permanent
employment with Sadbhav Engineering Limited, Gondudih, Dhanbad.
On the contention of the learned counsel for the appellant
as well as the claimants, the learned Tribunal has framed seven issued to
decide the claim and by way of appreciation of the evidence on record,
directed to pay a sum of Rs.22,65,040/- with interest of 6% per annum
from the date of filing of the application.
Mrs. Swati Shalini, the learned counsel appearing on behalf
of the appellant submits that the driving license and permit of the vehicle
have not been produced and in that view of the matter, the liability
cannot be fastened upon the appellant, and the appellant is having the
right to pay and recover the awarded amount. She further submits that
the income of the deceased has not been properly considered and 30
days was taken for consideration whereas it was required to be 26 days
only as the deceased was earning daily wages of Rs.464/-. She submits
that at the future prospects, the learned Tribunal has wrongly awarded
50% which is against the mandate in the case of National Insurance
Company Limited v. Pranay Sethi, reported in 2017 (16) SCC 680, in view
of paragraph no.59.4 of the said judgment. On this ground, she submits
that the award is required to be modified. She has relied in the case of
Pappu and Others v. Vinod Kumar Lamba and Another, reported in (2013)
3 SCC 208.
On the other hand, the learned counsel appearing for the
claimants submits that the certificate of earning of the deceased was
produced and P.W.3 -Rahul Verma has stated on that ground and in that
view of the matter rightly 30 days wages has been considered and there
is no illegality. He fairly submits that so far future prospect is concerned,
that may be modified in view of the National Insurance Company Limited
v. Pranay Sethi(supra).
Mr. Banerjee, the learned counsel for the owner submits
that the vehicle was fully insured and no pleadings with regard to the
driving license is there and nothing has been argued on behalf of the
appellant and that is why that ground is not available to the appellant.
In view of the submissions of the learned counsels
appearing on behalf of the parties, the Court has gone through the
materials on record and finds that the ground of driving license and
permit has not been taken. The ground of protection of section 147, 148
and 149 of the Motor Vehicles Claims Act has been taken however the
insurance company has not led evidence on driving license and all the
ground was to be taken to bring before the learned Tribunal which has
not been done by the appellant-company and in that view of the matter
the finding with regard to driving license and permit is concerned, is not
required to be reversed by the Court. P.W.3 -Rahul Verma has supported
the contention with regard to daily wages of the deceased. Ext.1 is
income certificate and in that view of the matter it cannot be said that it
has not been considered by the learned Tribunal and accordingly that
point is not accepted by the Court. So far further prospects is concerned,
in view of the paragraph no.59.4 of National Insurance Company Limited
v. Pranay Sethi(supra), which has been held as under :
59.4. In case the deceased is self-employees or on
a fixed salary an addition of 40 %of established income should
be he warrant where the deceased was below the age of 40
years. An addition of 25 % where the deceased was between
the age of 40 to 50 years and 10 % where the deceased was
between the age of 50 to 60 years should be regarded as
necessary method of computation. The established income
means the income minus the tax component.
In view of said paragraph of the aforesaid judgment, the
future prospect is required to be modified to the above extent.
Accordingly, the award with regard to future prospects is modified to
40% in place of 50%. The rest of the findings of the learned Tribunal has
been kept intact.
This appeal is disposed of in the aforesaid terms and
modification as indicated hereinabove.
The statutory amount deposited by the appellant/insurance
company shall be transmitted back to the learned Tribunal.
It has been submitted by the learned counsel for the
appellant that the awarded amount has already been deposited before
the learned Tribunal.
In view of her such submission, the said amount shall be
released in favour of the claimants, on proper identification, in terms of
the modification which has been allowed today, within six weeks from the
date of receipt /production of a copy of this order.
If after the payment, any amount remains, that shall be
refunded back to the insurance company along with the statutory
amount.
Accordingly, the I.A., if any, is also disposed of.
Let the L.C.R be returned back to the learned Tribunal
forthwith.
( Sanjay Kumar Dwivedi, J.)
SI/;
