National Insurance Company Ltd. ... vs Smt. Kiran
2021 Latest Caselaw 4087 MP

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  HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
   (SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)
                     Misc. Appeal No.1943/2020
    (National Insurance Company Ltd. V/s. Smt. Kiran and others)
Date: 09.08.2021:

      Shri Sudhir Dandwate, learned counsel for the appellant.
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The appellant/ Insurance Company has filed this appeal against the award dated 12.09.2019 passed by 8th MACT, Indore in claim case No.1236/2019 passed in favour of respondent No.1, 2 and 3. This appeal is barred by 98 days. Hence, appellant has filed an application i.e. I.A.No.2249/2020 under section 5 of Limitation Act for condone the delay. The appellant has calculated the period of 98 days from the date of receipt of certified copy till filing of Misc. appeal on 20.03.2020 but office has not calculated the limitation because the certified copy of the impugned award was not filed alongwith memo of appeal. The appellant has filed the certified copy of the award on 25.06.2021 and thereafter the office listed appeal before this Court, therefore, the limitation is now liable to be counted from the date of award till the date in filing of certified copy of award i.e. 25.06.2021, thus there is delay much more than 98 days. According to the appellant, the advocate who was appearing before the MACT on behalf of the appellant/Insurance Company sent the award to the Indore office with the recommendation of satisfaction of the award in the matter. The case was scrutinized and it was decided to take opinion from the advocate at High Court, who opined for filing an appeal in the matter and thereafter the competent authority has sent the file to the concerned advocate on 28.02.2020 for filing of appeal. The date on which the certified copy with the opinion was receipt is not mentioned in the application. When the authority sent the file for opinion to advocate, no details are mentioned. The date

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on which the competent authority took the decision for filing appeal is also not mentioned in the application. There is no explanation of filing the certified copy on 25.06.2021 i.e. after more than one year from the date of receipt of certified copy. As per the certificate issued by the head copyist, the appellant applied for certified copy on 27.02.2020 and received the certified copy on 19.03.2020 and there is no explanation as to why certified copy has not been filed alongwith appeal, which has caused delay more than one year in filing this appeal, therefore, the delay is not liable to be condoned, hence, the application I.A.No.2249/2020 is hereby dismissed. (2). Learned counsel for the appellant has also submitted that appellant has a good prima facie case and hopes to succeed in it, hence, the delay should not come in the way in the dispensation of justice. In order to ascertain the prima facie case, the facts of the case in short are as under:

On 03.02.2017, Jayshankar Patidar (Dingu) was riding the motorcycle, when he reached at Rau crossing, a truck bearing registration No. RJ-19-JB-4241 dashed him from the back which resulted into his death on the spot. A case under Section 304-A of I.P.C. was registered against the driver. The claimants i.e. widow, daughter, aged about 21 years and widow mother aged about 75 years of the deceased have filed a claim case, before the MACT. The learned Tribunal has assessed the age of deceased 52 years at the time of accident, Rs. 10,000/- notional income per month. The Tribunal has awarded 25% towards the future prospects and also awarded Rs. 40,000/-- Rs. 40,000/- in total Rs.80,000/- in favour of daughter and mother under the head of "filial consortium" and in total awarded Rs.12,58,800/-. Shri Dandwate submits that in light of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi report in (2017) 16 SCC

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680, 10% future prospects ought to have been awarded as the deceased was within the age limit of 52 to 60 years and Rs.80,000/- has been awarded under the loss head of "filial consortium". (3). Recently, the Apex Court in case of New India Assurance Co. Ltd. Vs. Urmila Shukla & ORS (Civil Appeal No.6434/2021) decided on 06.08.2021 has held that the prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima, in the absence of any governing principle available in the statutory regime, it was only in the form of an indication. The discussion on the point in Pranay Sethi was from the standpoint of arriving at " just compensation" in terms of Section 168 of the Motor Vehicles Act, 1988, therefore, in a given case under the facts and circumstances of the case the Tribunal can award more compensation than prescribed in the case of Pranay Sethi.

(4). In view of the above, the appellant has no prima facie case, hence, appeal is dismissed as time barred.

Certified copy as per Rules.

( VIVEK RUSIA ) JUDGE praveen

Digitally signed by PRAVEEN NAYAK Date: 2021.08.11 12:33:38 +05'30'