New India Assurance Co. Ltd vs Rita Devi And Ors

Heard learned counsel for the appellant.

The appellant-the New India Assurance Co. Ltd. has preferred this Misc. Appeal against the award dated 07.03.2018 passed by learned District

Judge-II-cum- M.A.C.T.,Giridih, in Title (M.V.) Suit No.54 of 2015, whereby the claimants/respondents have been awarded compensation to the tune

of Rs.47,57,191/- along with simple interest @6% per annum from the date of filing of the claim application i.e. 17.08.2015 till realization of the

amount of compensation from appellant- New India Assurance Co. Ltd. (Opposite Party No.3) within a period of 60 days from the date of the order,

failing which, claimants shall be at liberty to realize the same through the process of court and the interest @ 9% per annum shall be calculated after

expiry of 60 days.

Learned counsel for the appellant-Insurance Company has submitted that there is delay of 31 days in filing the appeal and for condonation of same,

I.A.No.6118 of 2018 has been preferred.

Learned counsel for the appellant-Insurance Company has assailed the impugned Award on four grounds:-

(i) that the learned Tribunal has wrongly considered the income of the deceased on the basis of Income Tax Return of the Assessment Year 2014-15

though the deceased met with an accident on 16.08.2014 itself and died subsequently during treatment, as such, assessment of income on the basis of

the Income Tax Return ought to have been considered on the basis of previous Income Tax Return i.e. for the Assessment year 2013-14.

(ii) the second ground that the learned Tribunal has also awarded for the Medical Bills of the Orchid Medical Center, Ranchi which has been brought

on record as Exhibit 18/4 to the tune of Rs.1,28,511/-.

(iii) the third ground that contributory negligence has not been considered by the learned Tribunal though as per the case of the claimants, the

deceased (Sanjay Kumar Sahu) was going on a Motorcycle bearing Registration No.JH-11L-9303, but his Motorcycle was hit by a T.V.S. Apache

Motorcycle bearing Registration No.JH-11K-7201 even then the only liability has been fastened against the insurer of TVS Apache Motorcycle

bearing bearing Registration No.JH11K 7201, as the Police has not submitted charge-sheet against the driver of another offending vehicle bearing

Registration No.JH11K 9303, as such, the learned Tribunal has not considered the contributory negligence.

(iv) the fourth ground that the penal interest @ 9% per annum has been awarded after the expiry of 60 days from the date of impugned Award which

is not in accordance with law.

Heard learned counsel for the appellant and perused the materials brought on record. It appears that on 16.08.2014 in the evening at about 06:30

P.M., Sanjay Kumar Sahu was returning on a Passion Pro Motorcycle with his younger brother Jyoti Prasad Sahu from Village-Bharkatta and as soon

as he reached near Village- Kasiadih then all of a sudden a TVS Apache Motorcycle bearing Registration No.JH-11K-7201 dashed his motorcycle

causing injury on the head of Sanjay Kumar Sahu, who was brought to Jeevandhara Nursing Home, Boro and from there he was referred to Ranchi

and admitted to Orchid Hospital, Ranchi where he died on 18.08.2014 at 9.05 P.M. in course of his treatment.

So far income of the deceased is concerned, the reliance has been placed upon the Income Tax Return of the Assessment Year 2014-15, it would

be apparent in Page No.9 at Para-14 of the impugned Award while deciding issue No(viii). The learned Tribunal has considered the income of the

deceased on the basis of the Assessment Year 2014-15 rather on the basis of Income Tax Returns of the Assessment Year 2004-05 to 2014-15

which have been marked as Exhibits- 15 to 15/8 and thereafter the learned Tribunal has considered the income of the deceased to be Rs.2,92,126/-

and out of the same, Rs.2,641/- has been deducted as Income Tax. So the net income of the deceased was considered to be Rs.2,89,485/-, as such,

ground no.1 taken by the appellant-Insurance Company is also hereby rejected.

So far the issue with regard to the medical bills of Rs.1,28,511/- of the Orchid Hospital, Ranchi are concerned, the learned Tribunal has rightly

awarded the same as the accident took place on 16.08.2014 whereas the person Sanjay Kumar Sahu initially treated at Jeevandhara Nursing Home,

Boro from where he was referred to Ranchi and admitted to the Orchid Hospital, Ranchi. The learned Tribunal has only paid the amount of Medical

Bills paid at the Orchid Hospital, Ranchi but has not paid the excess amount nor paid the actual expenses incurred by the claimants in treatment of

Sanjay Kumar Sahu while getting treatment at Jeevandhara Nursing Home, Boro or expenses incurred during shifting of the patient from Boro to

Ranchi. Since the claimants have not preferred any appeal for enhancement of the impugned Award, this Court is not interfering with the same, but

considering it to be an appropriate, this Court is also not interfering into the ground taken by the appellant-Insurance company which is hereby also

rejected as the same has rightly been awarded by the learned Tribunal. Accordingly ground no.2 taken by the appellant-Insurance Company is also

hereby rejected.

It appears that an FIR has been lodged only against the driver of the TVS Apache Motorcycle bearing Registration No.JH11K-7201 and after

investigation charge-sheet was submitted under Sections 279 and 304A of the Indian Penal Code against Sinod Hansda. Since the Police record

shows that it was a case where only Driver of the Motorcycle bearing Registration No.JH11K-7201 is responsible for the accident, as such,the

learned Tribunal while deciding the issue No.(vi) has held that since the FIR has been lodged against the driver of the offending vehicle bearing

Registration No.JH11K-7201 and the Police has also submitted charge-sheet against driver of the said vehicle, Sinod Hansda (Exhibit-3) and the

witnesses have also supported the case. The learned Tribunal while deciding issue in Page no.8 at Para-13 of the impugned Award has held that

accident took place due to rash and negligent driving of the Driver of the Motorcycle bearing Registration No.JH-11K-7201, as such, there is no case

of contributory negligence on the part of the deceased. In absence of any material adduced by the appellant-Insurance Company, the learned Tribunal

has given such finding and which does not require any interference by this Court. Accordingly, ground No.3 with regard to the contributory negligence

taken by the appellant is also hereby rejected.

So far fourth ground with regard to penal interest @ 9% is concerned, it is true that there is no provision under the law to grant penal interest @

9%, but on the other hand it is also true that minimum rate of interest @6% premium which has been awarded by the learned Tribunal from the date

of filing of the claim application i.e. 17.08.2015 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, reported in 2008(4) JCR 79 SC, wherein the Hon'ble Apex Court has held that simple interest @7.5% per

annum from the date of filing of the claim application or the prevalent rate of bank interest as on the date of award. Since the learned Tribunal has

only awarded interest @6% per annum from the date of filing i.e.17.08.2015 till the 60 days of the date of judgment and only in case, the appellant-

Insurance Company fails to satisfy the Award, the learned Tribunal has awarded interest @ 9% per annum after 60 days of the Award i.e.

07.03.2018, as such, this Court is not interfering with the same. If the rate of interest is considered to be 7.5%, in view of the judgment of Dharmpal

and Sons (supra), the amount of interest will remain more or less the same, apart from that the appellant-Insurance Company has not satisfied the

awarded amount within a period of 60 days from the date of award.

Accordingly, the instant Miscellaneous Appeal being devoid of merit stands dismissed.

Since the instant Miscellaneous Appeal has been dismissed on merit, as such, I.A. No.6118 of 2018 filed for limitation is hereby closed.

Further, appellant-New India Assurance Co. Ltd. shall satisfy the impugned Award at the earliest preferably within a period of 90 days from

today so as to give the fruits of benevolent legislation to the claimants.

Registrar General of this Court is directed to refund the statutory amount within a period of four weeks from the date of filing of requisition before

this Court by the learned counsel for the appellant.