New India Assurance Co. Ltd vs Sharda Devi And Ors

Heard, learned counsel for the appellant.

Appellant- The New India Assurance Co. Ltd. has preferred this Miscellaneous Appeal against the award dated 26.04.2017 passed by the learned

District Judge-XIII-cum-Motor Vehicle Accident Claim Tribunal, Dhanbad in Title Motor Vehicle Suit No.136 of 2009, whereby the claimants have

been awarded compensation to the tune of Rs.10,96,104/- along with simple interest @ 6% per annum from the date of admission of the claim

application i.e. 20.08.2016 to be paid within 60 days, failing which to satisfy the award within a period of 60 days the rate of interest shall be 9% per

annum till the date of payment.

Learned counsel for the appellant has submitted that the learned tribunal has wrongly passed the impugned award on three counts:-

(i) that the Exhibit-A has not been considered by the learned Tribunal which shows that the driver- Md. Naim had no valid and effective driving

licence to drive the vehicle on the date of alleged accident i.e. 03.05.2007.

(ii) that the learned Tribunal has wrongly considered the income of the deceased after deducting the tax component from gross income of Rs.10,126/-

to Rs.7,010/- for computing the compensation.

(iii) that the learned Tribunal has wrongly granted penal interest @ 9% which is contradictory to the provisions of the M.V. Act.

Heard, learned counsel for the appellant and perused the impugned award. It appears that deceased- Vishundeo Paswan @ Bishnu Deo Paswan died

in a motor accident on 03.05.2007 at 10:00 A.M. while he was going with his friend- Shamim Khan on a motorcycle bearing registration no.JH-10J-

4471 from Tetuliya to branch of Life Insurance Corporation of India, Chirkunda for his personal work as a pillion rider. As soon as the motorcycle

reached near the G.T. Road, Mugma Chowk under Police Station Nirsa, Dhanbad a truck bearing registration no.WB-03A-2081 dashed the

motorcycle from the back in which both Shamim Khan and deceased- Vishundeo Paswan @ Bishnu Deo Paswan died at the spot.

On the basis of the fardbeyan of Md. Akhtar Khan brother of Shamim Khan an FIR has been lodged at Nirsa Police Station vide Nirsa P.S. Case

No.117 of 2007 dated 03.05.2007 under Sections 279 and 304(A) of the IPC against the driver of the offending truck bearing registration no.WB-03A-

2081.

After investigation the police has submitted the charge-sheet against the driver- Md. Naim of the offending vehicle under Sections 279, 304(A) and

477 of the IPC.

The truck bearing registration no.WB-03A-2081 was insured before the New India Assurance Co. Ltd. vide policy No.510500/31/06/01/00000 valid

for the period from 13.06.2006 to 12.06.2007. The deceased died at the age of 47 years while he was a permanent employee of M/s Eastern Coal

Field Ltd. At the time of accident, deceased- Vishundeo Paswan @ Bishnu Deo Paswan was working as underground loader at Chapapur Colliery

having personnel no.259233 and gross monthly income of Rs.10,126/- but net income after deduction of the tax as Rs.7,010/-.

The claimants-respondents are dependents upon the deceased, as such, they have filed claim application before the learned Tribunal.

Learned counsel for the appellant has assailed the impugned award on the ground that the learned Tribunal has not considered Exhibit-A with regard

to the validity of the driving licence of the driver- Md. Naim of the offending vehicle, as such, the learned Tribunal has wrongly fastened the

Assurance Company with the liability.

While deciding issue no.4 whether the driver of the truck bearing registration no.WB-03A-2081 had valid and effective driving licence, the learned

Tribunal has considered the same in para 12 of the impugned judgment, whereby it has been held that at the time of accident the driver of the

offending vehicle has valid and effective driving licence though the Assurance Company has brought a document as Exhibit-A,the report submitted by

the investigator but no oral or documentary evidence has been brought on record to substantiate the same, as such, the learned Tribunal has given

finding that the driver of the offending vehicle has a valid and effective licence.

This Court sitting in appeal cannot disturb with the finding recorded by the learned Tribunal, in absence of any evidence brought on record by the

Assurance Company either documentary or oral, such report of the investigator has rightly not been considered by the learned Tribunal. The

Insurance Company has failed to adduce evidence to substantiate Exhibit-A as neither any person was examined to substantiate the same nor any

official document issued from the office of the District Transport Officer has been brought on record to rebut the claim.

Under the aforesaid circumstances, this Court is not inclined to accept the objection/ground no.1, taken by the appellant for assailing the impugned

award.

So far the second ground with regard to income of the deceased is concerned, learned counsel for the appellant has submitted that since no one has

been examined on behalf of the employer M/s Eastern Coal Field Ltd., as such, the learned Tribunal has wrongly considered the salary slip of M/s

Eastern Coal Field Ltd.

In my opinion this ground taken by the learned counsel for the appellant is misconceived and no evidence contrary to the same has been brought on

record by the Assurance Company. The learned Tribunal has rightly taken note of the salary slip of the deceased issued by M/s Eastern Coal Field

Ltd. who was a permanent employee posted as underground loader at Chapapur Colliery having personnel no.259233 and gross monthly income of

Rs.10,126/- but net income of Rs.7,010/-.

Under the aforesaid circumstances, the second ground taken by the learned counsel for the appellant is also hereby rejected.

So far the penal interest @ 9% after 60 days of the award is concerned, this Court has perused the impugned award at operative part of the order and

Section 171 of the Motor Vehicle Act reads as follows:-

“171. Award of interest where any claim is allowed- Where any Claims Tribunal allows a claim for compensation made under this Act,

such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date

not earlier than the date of making the claim as it may specify in this behalf.â€​

The Hon'ble Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, 2008 (4) JCR 79 SC has held that award ought

to have been passed at the prevalent rate of interest of the bank on the date of award or 7.5% from the date of filing of the application. In the present

case the learned Tribunal has only awarded interest @6% from the date of admission of the claim application giving opportunity to the Assurance

Company to satisfy the award within a period of 60 days failing which the interest shall be 9% till its realization.

If all these things are taken together the interest on lower side had been given as interest @ 6% has been given from the date of admission of claim

application and if the compensation amount is not paid within 60 days the amount shall carry the interest @ 9% while as per judgment of Hon'ble

Apex Court in the case of Dharmpal and Sons (supra) the interest on compensation amount ought to have been @ 7.5% from the date of filing of

claim application. As such, this Court is not interfering with the same as minor reduction or change in the interest shall not bring substantial difference

in the compensation amount.

Under the aforesaid circumstances, considering the compensation to be just fair and proper, this Court is not inclined to interfere with the same.

Accordingly, the instant Miscellaneous Appeal is hereby dismissed.

The Registrar General of this Court is directed to refund the statutory amount deposited by the appellant at the time of filing of Miscellaneous Appeal,

within a period of four weeks from the date of the filling of the requisition/application for the same by the counsel for the appellant.