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Madhya Pradesh High Court · body

2000 DIGILAW 11 (MP)

NATIONAL INSURANCE CO. LTD v. BHAGWATI BAL

2000-01-04

A.K.MISHRA, D.P.S.CHAUHAN

body2000
D. P. S. CHAUHAN, ACTG. C. J. ( 1 ) MISC. APPEAL Nos. 1099 and 1301 of 1997 are two appeals directed against the award dated 3. 5. 1997, passed in Claim Case No. 22 of 1994. Misc. Appeal No. 1099 of 1997 has been filed by National Insurance co. Ltd. whereas Misc. Appeal No. 1301 of 1997 has been filed on behalf of the claimants. In the earlier appeal, the relief sought is for getting aside the award and in the subsequent appeal the relief sought is for enhancement of the amount under the award. The award is for a total sum of rs. 1,02,000 out of which, an amount of rs. 96,000 is awarded on account of the loss of dependency. ( 2 ) BRIEF facts are that on 1. 2. 1994 the deceased Sukumar Sikdar was travelling in a jeep bearing registration No. CPR 6601 which was going from Narayanpur to his village and after covering the distance of 14 km. , the jeep met with an accident with a Government ambulance van bearing registration No. CPZ 2923 as a result of which he died on the spot and other passengers sitting in the jeep also died as a result of the accident. The report of the accident was lodged at the Police Station antagarh and post-mortem was conducted. The claim was contested by the non-applicant no. 1 Prasanna Singh Thakur and the non-applicant No. 2 State of Madhya pradesh, the owner of the ambulance van cpz 2923 and also by the owner and driver of the jeep No. CPR 6601, i. e. , the non-applicant No. 3 in the Claim Case No. 22 of 1994, Babulal Sharma and the non-applicant No. 4, National Insurance Co. Ltd. , the insurer of vehicle No. CPR 6601. ( 3 ) AFTER recording the evidence of the parties, the Claims Tribunal recorded the finding that the accident took place on account of the negligence and callousness on the part of the driver of the Government vehicle No. CPZ 2923 and accordingly compensation was awarded to the tune of rs. 1,02,000. ( 3 ) AFTER recording the evidence of the parties, the Claims Tribunal recorded the finding that the accident took place on account of the negligence and callousness on the part of the driver of the Government vehicle No. CPZ 2923 and accordingly compensation was awarded to the tune of rs. 1,02,000. ( 4 ) LEARNED counsel for the insurance company submits that it was not a case of negligence on the part of the driver of the jeep and as such, no liability can be fastened to the insurance company and he submitted that in para 11 of the award a finding was recorded that it was the negligence and callous driving of the Government vehicle CPZ 2923 which resulted in the accident. From the discussion of the evidence, it is clear that it is a case of composite negligence. However, the learned counsel for the respondents-claimants in this appeal submitted that this appeal itself is not maintainable in view of the requirement under section 149 (2) of the Motor vehicles Act, 1988 and the grounds of challenge are not available. ( 5 ) THE learned counsel for the appellant submitted that the grounds of challenge as mentioned in sub-section (2) of section 149 do not bar challenge on the ground of negligence. The law has provided the grounds for defence and as such, the insurance company has to confine to what the law has provided. ( 6 ) SINCE none of the grounds is available to the appellant, we are of the opinion that this appeal on behalf of the insurance company is not maintainable. It accordingly deserves to be rejected. ( 7 ) SO far as the Appeal No. 1301 of 1997 is concerned, it is on behalf of the claimants and the learned counsel for the claimants invited the attention of the court to para 17 of the award and submitted that the deceased was having an agricultural holding and was doing cultivation and was running a dairy and was also having a cycle shop apart from being a labourer. The Tribunal recorded the finding that the deceased was a labourer and calculated his income at Rs. 35 per day which was multiplied by 20 days. Learned counsel submitted that the Tribunal has erred in multiplying the income of Rs. The Tribunal recorded the finding that the deceased was a labourer and calculated his income at Rs. 35 per day which was multiplied by 20 days. Learned counsel submitted that the Tribunal has erred in multiplying the income of Rs. 35 per day with 20 instead of 30 as the deceased was a private labourer and the multiplier should have been 30. So far as the learned counsel for the national Insurance Co. Ltd. is concerned, he submitted that non-working days are exclusive and only working days are calculated for the purpose of wages. It appears wrong, as the deceased was a private labourer, no such calculation is permissible. In view of this, the income of rs. 35 per day has to be multiplied by 30 and not by 20 and accordingly, the income comes to (Rs. 35 x 30) = Rs. 1,050 per month, and the annual income would come to Rs. 12,600 out of which 1/3rd income, which deceased must have been spending on himself, has to be deducted and after deducting 1/3rd, the annual dependency comes to Rs. 8,400. The deceased, at the time of the accident, was 35 years of age and as such, the multiplier of 16 has to be applied. The amount of Rs. 8,400 if multiplied by 16 would come to Rs. 1,34,400 and thus the total amount including the items mentioned in para 18 of the award comes to Rs. 1,40,400. ( 8 ) THE next submission of the learned counsel for the appellants-claimants is that the interest should have been awarded from the date of the application and not from the date of the award and the Tribunal has wrongly allowed interest from the date of the award. Learned counsel for the claimants further submitted that 8. 4. 1994 is the date on which the application was moved and it would be taken from that date. In para 22 of the award, it has been stated that 12 per cent interest would be payable from the date of the award. It is not according to law. ( 9 ) WE consider it proper to allow interest from the date of the application, i. e. , from 8. 4. 1994. ( 10 ) IN view of the above, M. A. No. 1099 of 1997 filed by National Insurance co. Ltd. is rejected. It is not according to law. ( 9 ) WE consider it proper to allow interest from the date of the application, i. e. , from 8. 4. 1994. ( 10 ) IN view of the above, M. A. No. 1099 of 1997 filed by National Insurance co. Ltd. is rejected. The M. A. No. 1301 of 1997 succeeds and is allowed to the extent that the award is modified to Rs. 1,40,400 in all. However, on this amount, the claimants shall be entitled to 12 per cent per annum interest from the date of the application, i. e. , from 8. 4. 1994. If any amount is already deposited, that shall be adjustable in the amount now awarded. In the circumstances of the case, we do not consider it a case for awarding of costs. The costs are made easy. Orders accordingly. .