M/s ICICI Lombard General Insurance Company Ltd vs Manju Sinha And Ors

Heard, learned counsel for the appellant.

Appellant- ICICI Lombard General Insurance Company Ltd. has preferred this appeal against the award dated 09.01.2019 passed by the learned District Judge XIV-cum-Addl. Motor Accident Claim Tribunal, Dhanbad in Motor Accident Claim Case No.317 of 2017, whereby the claimants have been awarded compensation to the tune of Rs.66,05,188/- along with simple interest @ 9% per annum from the date of filing of the claim application till its realization. The learned Tribunal has distributed the amount to the claimants except Swati Sinha in equal proportion.

Learned counsel for the appellant has assailed the impugned award on three counts:-

(i) Number of claimants in the first page of the memo of award shows four dependents upon the deceased- Anish Kumar Sinha, whereas in the evidence which has been recorded at para 15 of the impugned award while deciding issue nos.1 and 6 at internal page 13 of the impugned award, that Swati Sinha daughter of the deceased was married prior to death of Anish Kumar Sinha. The learned Tribunal has rightly excluded her as dependent but while computing the deduction towards personal and living expenses of the deceased, the learned Tribunal has wrongly deducted the same as 1/4th, as the number of dependent remained 3- i.e. Manju Sinha, Sneha Sinha and Anurag Sinha, as such, deduction ought to have been 1/3rd in view of the judgment passed by the Hon'ble Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121.

(ii) Learned counsel for the appellant has submitted that the learned Tribunal has considered the entire salary of the deceased as income for computing the compensation. The deceased- Anish Kumar Sinha was posted as Accountant in BCCL and was earning Rs.70,157/- per month as his salary but the tax component has not been deducted, as such, the learned Tribunal has wrongly considered income of the deceased as Rs.70,157/- per month for computation of compensation which is contrary to the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680 para 59.8.

(iii) Learned counsel for the appellant has submitted that interest has been awarded with simple interest @ 9% per annum from the date of filing of the claim application till its realization which is contrary to the judgment passed by the Hon'ble Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, 2008 (4) JCR 79 SC, where the Hon'ble Apex Court has held that interest ought to have been given at the prevalent rate of interest of the bank on the date of award or simple interest @ 7.5% from the date of filing of the claim application, as such, notice may be issued to the claimants-respondent nos. 1 to 4 [1. Manju Sinha, W/o Late Anish Kumar Sinha, 2. Swati Sinha, 3. Sneha Sinha, both D/o Late Anish Kumar Sinha and 4. Anurag Sinha, S/o Late Anish Kumar Sinha, All r/o House No.16, New Quarter, Bhowra Near Durga Mandir, P.O. Bhowra, P.S. Bhowra, District Dhanbad (Jharkhand)].

Learned counsel for the appellant has also taken a plea that there is false implication of Alto Car JH-10T-0316, on the ground that injured has disclosed before the Doctor that he was dashed by an auto. This plea of the appellant is not acceptable to this Court as the learned counsel for the appellant has submitted that FIR has been lodged against the driver of Alto Car bearing registration no. JH-10T-0316 and the charge-sheet was submitted after investigation. The Insurance Company has not taken any legal steps in view of the judgment passed by the Jai Prakash vs. National Insurance Company Limited, reported in (2010) 2 SCC 607.

Under the aforesaid circumstances, since no relief has been claimed against the owner of Alto Car JH-10T-0316, this Court is not inclined to accept the same, as such, owner whose vehicle was insured before the appellant- Insurance Company is not required to issue notice.

Learned counsel for the appellant has further submitted that the appeal has been preferred within time but I.A. No.3735 of 2019 has been preferred for stay of Execution Case No.24 of 2019 pending before the court of learned District Judge-XIV-cum-Addl. Motor Accident Claim Tribunal, Dhanbad.

Be that as it may, since the serious questions are involved in this case where the compensation amount may be reduced.

Since the submission of the learned counsel for the appellant has legal impact which may reduce the amount of compensation of the claimants, as such, let notice be issued to the respondent nos.1 to 4 on the aforesaid address under both process i.e. under registered cover with A/D as well as under ordinary process for which requisites etc. must be filed by 31.01.2020.

In the meantime, the appellant is directed to deposit Rs.47,00,000/- along with interest @ 7.5% per annum from the date of filing of the claim application within a period of 30 days from today.

If the said amount is deposited, the Executing Court shall not proceed against the appellant-Insurance Company. The Executing Court shall issue notice to the claimants-respondents and after proper verification shall disburse the same to the claimants after taking an affidavit that they have already put their appearance in the instant Miscellaneous Appeal before this Court.

I.A. No. 3735 of 2019 is disposed of.

Put up this case after receipt of service of notice.