National Insurance Company Limited vs Jayanti Devi And Ors

The National Insurance Company has been preferred this Miscellaneous Appeal against the award dated 29.05.2018 in Motor Accident Claims Case

No.269 of 2015 passed by learned Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi whereby the claimants namely, Jayanti Devi,

Lalo Devi and Dhaneshwar Mahto have been awarded compensation to the tune of Rs.10,28,000/- along with interest @ 9% per annum from the date

of admission of the claim application i.e. 04.02.2016 till its realization.

Learned counsel for the appellant has submitted that impugned award is bad in law as learned Tribunal has considered the income of the deceased on

higher side without any evidence brought on record.

Learned counsel for the appellant has further submitted that the learned Tribunal has considered the contributory negligence in accordance with the

materials brought on record and the finding recorded by the learned Tribunal is perverse. Learned counsel for the appellant has further submitted that

interest @ 9% cannot be awarded on the compensation amount rather as per the judgment passed by the Apex Court in the case of Dharmpal and

Sons Vs. U.P. State Road Transport Corporation [2008 (4) JCR 79 (SC)], it ought to have been 7.5% per annum from the date of filing application, as

such, the impugned award requires interference by this Court.

Learned counsel for the appellant, Mr. Amresh Kumar has further submitted that there is delay of 43 days in preferring the appeal and for

condonation of same, I. A. No.10853 of 2018 has been filed, as such, notice may be issued to the respondents.

Heard, learned counsel for the appellant and perused the impugned award. It appears that on 31.05.2015 at around 1.00 P.M., deceased Lal Deo

Mahto was returning to his house at village- Tati, P.S.-Tatisilwai, Ranchi from BIT More travelling in his Motorcycle bearing registration No. JH-01Y-

9755 along with his wife namely, Jayanti Devi as pillion rider, while reached near Jumar bridge, Manan Vidya School, offending vehicle Tempo

Temporary registration No. JH-01AC (T)-7892(wrongly mentioned in the FIR as JH-01T-6491) driven rashly and negligently coming from opposite

direction dashed against the said Motorcycle resulting both occupants of the said Motorcycle threw away on road, sustained grievous injuries upon

their persons. Lal Deo Mahto died on same day at about 6.15 P.M. during his treatment at RIMS, Ranchi. Postmortem of the deceased was

conducted at RIMS, Ranchi.

For the alleged occurrence FIR was lodged vide Sadar P.S. case No. 249 of 2015 dated 01.06.2015 against the driver of the offending vehicle Tempo

for the offence under Sections 279, 337, 338,304A and 427 of IPC. After investigation charge sheet was submitted against the driver namely, Krishna

Kumar Modi under the aforesaid Sections vide charge sheet No.327 of 2015 dated 26.07.2015.

The deceased was aged about 32 years and was earning Rs.10,000/- per month from working in Usha Martin Factory. Due to his sudden death, the

family of deceased was deprived from the financial assistance, love affection and suffered monetary loss, mental shock and agony.

The learned Tribunal has framed altogether seven issues, which are quoted hereunder:

Whether the claim application as filed is maintainable?

Whether applicants have valid cause of action for the case?

Whether death of the deceased namely, Lal Deo Mahto resulted to the alleged vehicular accident caused due to driving the offending

vehicle Tempo registration No.JH-01AC(T)-7982 rashly and negligently?

Whether there is a contributory negligence of the deceased in causing the alleged accident resulting to his death, if yes to what extent?

Whether the insured/owner of the offending vehicle has violated terms and conditions of the insurance policy?

Whether applicants are entitled for compensation as claimed, if yes, against whom and to what extent?

To what reliefs, if any, the applicants are entitled to?

The claimants has examined one witness, Jayanti Devi as A.W.1 and also exhibited a number of documents up to exhibits -8, which are quoted

hereunder:

Ext. 1- Certified Copy of FIR vide Sadar P.S. Case No. 249/15, dated 01.06.15 against driver of the offending vehicle Tempo Temporary

registration No. JH-01AC(T)7892 (wrongly mentioned as JH-01T-6491 in the FIR) for the offence u/s 279,337,338,304A & 427 of IPC.

Ext.2- Certified copy of Charge Sheet vide Charge Sheet No.327/15, dated 26.07.15 against the driver namely, Krishna Kumar Modi

driving the offending vehicle Tempo registration No.JH-01AC(T)-7892 for the offence u/s 279,337,338,304A and 427 of IPC.

Ext.3- Photo copy of Certificate of Temporary Registration for the offending vehicle Tempo registration No. JH-01AC(T)-7892 in the name

of Jitendra Gosai, O.P. No.1.

Ext.4- Photo copy of Insurance Policy for the offending vehicle New Tempo Engine No. R5C2629024, Chassis No.MDX0000ZBTD072940

in the name of Jitendra Gosai, O.P. No.1, issued from National Insurance Co. Ltd., O.P. No.2 vide Policy No.17020531156360000095 valid

for the period from 26.05.15 to 25.05.16.

Ext.5- Death certificate of the deceased namely Lal Deo Mahto died on 31.05.2015 at RIMS, Ranchi.

Ext.6- Photo copy of Driving license of charge sheeted driver namely Krishna Kumar Modi vide D.L. No. driving the offending vehicle

tempo vide D.L. No.3617/08, issued on 22.02.08 to drive Motorcycle and LMV valid up to 21.02.2028.

Ext.7- Identity card of the deceased namely Lal Deo Mahto issued from Bihar Examination Board, for appearing in matriculation

examination 1994.

Ext.8- Identity card of the deceased namely Lal Deo Mahto issued from Employees State Insurance Corporation issued on 24.12.2002.

The owner of the Tempo namely, Jitendra Gosai examined himself as O.P.W. No.1 and has produced two documents as Exhibit-A and Exhibit-B,

which are quoted hereunder:

Ext. A- Photo copy of the Certificate of Registration for the offending vehicle Tempo registration No. JH-01BQ-9857. Engine No.

R5C2629024, Chassis No.MDX0000ZBTD072940.

Ext. B - Accident Report Form issued under signature of Motor Vehicle Inspector Ranchi in Sadar P.S. Case No.249/15, dated 01.06.15, u/s

279,337,338,427 and 304A of IPC Temporary registration No.JH-01AC(T)-7892.

This Court perused the entire materials brought on record. The grounds taken by learned counsel for the appellant, Mr. Amresh Kumar while assailing

the impugned award are with regard to the (i) income of the deceased (ii) contributory negligence and (iii) the interest granted by the learned Tribunal

on the awarded amount.

With respect to first issue i.e. income of the deceased, from perusal of the record, it appears that claimants have claimed the income of the deceased

as Rs.10,000/- per month earning from Usha Martin Factory and in support of the same they have brought exhibit-8 i.e. Identity card of the deceased

namely Lal Deo Mahto issued from Employees State Insurance Corporation issued on 24.12.2002 meaning thereby the deceased was member of

Employees State Insurance Corporation since 2002 till his death in the year, 2015 and he has a monthly income of Rs.10,000/- from Usha Martin

through the Tribunal has assessed the same to be Rs.6000/-. There is no reason for this Court to interfere with the same in appeal in absence of any

positive evidence brought on record by the Insurance Company contrary to the finding recorded by the learned Tribunal. Since the claimants have not

preferred any appeal for enhancement of the same, as such, without interfering with the income of the deceased, this Court considered the impugned

judgment and found that there is no requirement of interference in the income of the deceased when the claimants have claimed income as

Rs.10,000/- per month and the Tribunal has granted Rs.6000/- per month, as such, the issue no.1 is decided against the appellant as this Court has no

reason to interfere with the finding recorded by the learned Tribunal.

So far with respect to second issue i.e. the contributory negligence is concerned, which was issue no.4. The Tribunal has considered the same at

page-8 of the impugned award holding that FIR was lodged against driver of the Tempo, though there was some irregularity in recording the

registration number in the FIR but after investigation the said irregularity has been removed in the charge sheet. The Investigating Officer of the case

has found that the alleged accident occurred due to fault of driver of the offending vehicle Tempo bearing Temporary registration No. JH-01AC(T)-

7892 and accordingly, submitted charge sheet. Nothing has been found with respect to involvement in the accident by the Tribunal against the

deceased, who was driving the Motorcycle, so as to held the deceased responsible/liable for contributory negligence, as such, in absence of any

positive evidence brought on record by the appellant, this Court also restrains from interfering with the finding recorded by the learned Tribunal so far

the contributory negligence is concerned.

The third issue, which has been assailed by the appellant is the interest @ 9 % per annum from date of admission of the claim application under

Section 166 of the Motor Vehicle Act i.e. 04.02.2016 till its realization.

It is true that no Court can grant enhanced rate of interest without any reason. The Apex Court in the case of Dharmpal and Sons (Supra) has held

that rate of interest should be 7.5 % or the prevailing bank rate of interest, even though the Tribunal has granted simple interest @ 9% from the date

of admission of the application under section 166 of the Motor Vehicle Act i.e. 04.02.2016, as such, this Court considered that if the same is changed

to the interest @ 7.5% per annum from date of filing, as the occurrence is admittedly of 2015, which is apparent from case number itself as Motor

Accident Claim Case No. 269 of 2015 (the original case before the Tribunal), there shall be marginal difference in the quantum of compensation as

interest @ 9% has been granted from the date of admission.

Under the aforesaid circumstances, this Court instead of interfering with the same leaves it intact as no substantial amount shall change because of

change in rate of interest.

Accordingly, the Miscellaneous Appeal preferred by the Insurance Company is devoid of merit and accordingly it is dismissed.

The Insurance Company is directed to satisfy the award within a period of 90 days from today in terms of award passed by the learned Tribunal,

which has been affirmed by this Court.

Accordingly, I.A. No.10853 of 2018 filed for condonation of delay of 43 days is hereby closed as the Miscellaneous Appeal has been dismissed on

merit.