National Insurance Company ... vs Sona Bodra & Ors
2023 Latest Caselaw 1976 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No.729 of 2018

National Insurance Company Limited      ..... ...... Appellant
                                Versus
Sona Bodra & Ors.                          .... .... Respondents
                                 ------

CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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       For the Appellant              : Mr. Manish Kumar, Advocate
       For the Respondent No.4        : Mr. Anjani Kumar, Advocate
                                       : Mr. Sandip Kumar Burnwal, Advocate

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The matter is being taken up through Video Conferencing. Learned counsels for the parties have no objection with it and submitted that audio and video qualities are good.

Order No.06 /Dated: 08th May, 2023 I.A. No.10784 of 2018 Learned counsel for the appellant, Mr. Manish Kumar has submitted, that I.A. No.10784 of 2018 has been filed for condonation of the delay of 58 days in preferring the appeal and to that no counter-affidavit has been filed by the claimants and owner of the offending vehicle, as such delay may be condoned.

Since no counter-affidavit has been filed in I.A. No.10784 of 2018, accordingly delay is hereby condoned.

I.A. No.10784 of 2018 is disposed of.

M.A. No.729 of 2018 Heard, learned counsel for the appellant Mr. Manish Kumar and learned counsel for the respondent No.4 Mr. Anjani Kumar and learned counsel Mr. Sandip Kumar Burnwal.

The National Insurance Company Limited has preferred this miscellaneous appeal against the award dated 02.07.2018 passed by learned Principal District Judge-cum-Presiding Officer, Motor Accident Claims Tribunal, West Singhbhum at Chaibasa in Motor Accident Claims Case No.54 of 2016, whereby the claimants namely Sona Bodra, W/o Sri Mansingh Bodra, Mansingh Bodra, S/o Late Dukhan Bodra, Minor Jiten Bodra, S/o Mansingh Bodra, represented by mother and natural guardian, Sona Bodra, all resident of Village-Mahulberai, P.O.-Kera, P.S. Chakradharpur, District-Singhbhum West, Jharkhand have been awarded a

compensation to the tune of Rs.10,58,000/-, out of which Rs.50,000/- has already been paid to the claimants under Section 140 of the M.V. Act, thus compensation amount comes to Rs.10,08,000/- along with interest @ of 6 % per annum from the date of filing of the claim application i.e., 26.11.2016 till the date of payment to be indemnified by the Insurance Company.

Learned counsel for the appellant, Mr. Manish Kumar has submitted, that present miscellaneous appeal has been filed against the claimants as well against the owner of the offending vehicle on different grounds.

Learned counsel for the appellant, Mr. Manish Kumar has submitted, that in the claim application the claimants have claimed the age of the deceased, Kishor Bodra to be 17 years, who lost his life in the motor accident on 06.02.2014 by offending vehicle, Tata Magic bearing Registration No.JH-05AS-2535, but in the post-mortem report, the Doctor has assessed the age of the deceased to be 15 years, as such it was not within the ambit of the learned Tribunal to grant such compensation for a person below the age of 15 years.

Learned counsel for the appellant, Mr. Manish Kumar has further submitted, that the deduction towards personal and living expenses has been made 1/3rd, which ought to have been 50 % in view of the judgment passed by the Hon'ble Supreme Court in the case of Sarla Verma (Smt) & Ors. Vs. DTC & Anr. reported in (2009) 6 SCC 121 at para-30.

Learned counsel for the Respondent No.4, Mr. Sandip Kumar Burnwal has opposed the prayer and has submitted, that the Insurance Company is not justified in raising an issue which has never been raised before the learned Tribunal. No cross-examination has been made with regard to age of the deceased. The post-mortem report can not ascertain actual age of the deceased which is the assessment made by the Doctor through naked eye, for which no scientific reason has been assigned.

Learned counsel for the Respondent No.4, Mr. Sandip Kumar Burnwal has further submitted, that in absence of any contrary evidence and finding recorded by the learned Tribunal, this Court may not interfere with the impugned award with respect to the age of the deceased as no contrary evidence has been brought on record nor cross-examination has been made by the appellant-Insurance Company with respect to the age of the deceased.

Learned counsel for the Respondent No.4, Mr. Sandip Kumar Burnwal has further submitted, that it is an admitted fact that deceased Kishor Bodra died bachelor but leaving behind his parents and one younger brother.

Learned counsel for the respondent no.4, Mr. Anjani Kumar has submitted, that all the relevant papers have been brought on record as mentioned in the impugned award at page-9 i.e., xerox copy of Tax Token as well as Certificate of fitness of the offending vehicle I.e, Tata Magic bearing Registration No.JH-05-AS-2535 issued by the Government of Jharkhand, which were valid up to January, 2015.

Learned counsel for the appellant, Mr. Manish Kumar has submitted, that paper of permit has not been brought on record, as such the right of recovery may be granted in favour of the Insurance Company.

Learned counsel for the respondent no.4, Mr. Anjani Kumar and Sandip Kumar Burnwal has submitted that let the matter be adjourned for two weeks' so as to file the permit and fitness certificate on record after serving copy of the same upon learned counsel for the Insurance Company, so that he may verify the same.

Let the documents be filed by 18.05.2023 after serving copy upon learned counsel for the Insurance Company, so that Insurance Company may verify the same during summer vacation.

List this case after summer vacation on 21.06.2023.

(Kailash Prasad Deo, J.) Rohit/-