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2023 DIGILAW 192 (JHR)

New India Assurance Company Ltd. v. Robitri Munda

2023-02-17

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Mr. G.C. Jha, the learned counsel appearing on behalf of the appellant/New India Assurance Company Ltd. submits that there is no prayer for recovery from the owner and respondent No. 4 is the owner of the vehicle in question. He submits that earlier notices were issued upon the respondent no. 4, however, the notice has not been effected. He submits that since the recovery point is not here, the appeal can be heard in absence of respondent no. 4 and in that view of the matter, the appeal has been heard on merit in presence of the learned counsel appearing on behalf of the claimants. 2. Heard Mr. G.C. Jha, the learned counsel appearing on behalf of the appellant/Insurance Company and Mr. T.N. Mishra, the learned counsel appearing on behalf of the claimants/respondent Nos. 1 to 3. 3. Being aggrieved and dissatisfied with the Judgment/Award dated 10.09.2014 passed by learned District Judge-III-cum-M.A.C.T. Jamshedpur in Compensation Case No. 152/2012, the appellant/Insurance Company has preferred this appeal. 4. The Compensation Case was filed stating therein that the applicants/respondent Nos. 1 to 3 herein are the legal representatives of the deceased who was working in Railway and in this regard the pay-slip was filed. At the time of accident, the vehicle in question was insured with the appellant/Insurance Company namely, New India Assurance Company Limited. The accident took place on 21.06.2011 and the deceased died on the spot. The police has investigated the matter and submitted the charge sheet and the claim application was filed by the claimants for compensation to the tune of Rs. 47,39,000/-. 5. Mr. G.C. Jha, the learned counsel appearing for the appellant/Insurance company submits that the learned court has failed to appreciate the point of contributory negligence as well as the quantum is not in accordance with law. On these two points, he has argued the matter. 6. The learned counsel appearing for the claimants/respondent nos. 1 to 3 submits that the learned court has looked in to the entire evidence and thereafter has passed the order. The quantum is in accordance with law and contributory negligence was also taken care of in deciding the claim case. The issue no. 4 was made by the learned court/Tribunal with regard to contributory negligence. 1 to 3 submits that the learned court has looked in to the entire evidence and thereafter has passed the order. The quantum is in accordance with law and contributory negligence was also taken care of in deciding the claim case. The issue no. 4 was made by the learned court/Tribunal with regard to contributory negligence. A.W.1-Savitri Munda who is the widow of the deceased has stated that on 21.06.2011 her husband was coming on motorcycle and when he reached near village Nanthua Highway, Truck No. JH-05-AC-9768 came at high speed and driver dashed motorcycle of the husband and her husband died later on. The charge sheet has also been submitted against the above mentioned truck driver under section 304-A of the I.P.C. The post-mortem report was also considered by the learned court/Tribunal and final cause of action was held in favour of the claimants. The learned court has held that the question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as negligence and is relying on the judgment of the Hon'ble Supreme Court rendered in the case of ‘National Insurance Company v. Swarn Singh’ reported in (2004) 3 SCC 277 wherein it was held that to avoid its liability towards insured, the insurer has to prove that the insured has guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the insurance policy regarding use of vehicle by duly licensed driver or one who was not disqualified to drive at the relevant time and there is no illegality with regard to such finding and accordingly, the argument of the learned counsel appearing on behalf of the appellant/Insurance Company is not accepted by the Court. 7. On the point of claim the Court finds that the learned court has looked into the Ext.1 which is salary-slip of the deceased and after deduction in terms of calculation has come to the conclusion that the monthly income of the deceased was Rs. 14,518/- and as the deceased was below 40 years, so 50% is added on account of future prospect. 14,518/- and as the deceased was below 40 years, so 50% is added on account of future prospect. Considering the dependency upon the deceased 1/3 notional annual income deducted on account of personal expenses and considering all these, the learned Tribunal has directed to pay a sum of Rs. 25,50,130/-. The Court finds that the learned court has erred in awarding the amount on conventional head wherein only 40,000/- was paid, however, in view of the judgment rendered in the case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 , the same is required to be made at Rs. 70,000/- and every 3 years 10% increment has to be added, and in that view of the matter, that part of the Award is modified to the extent that Rs. 70,000/- plus 10% increment of lapse of every three years shall be added. The Court finds that apart from that, there is no illegality in the Award. 8. Accordingly, this appeal is disposed of with the above modification. The rest of the findings of the learned court/Tribunal is kept intact. 9. The learned counsel for the claimants/respondent nos. 1 to 3 submits that Rs. 20 Lakhs (Twenty Lakhs) has already been withdrawn by the claimants. In view of such submission, the rest of the amount shall be deposited by the Insurance Company before the learned Tribunal in terms of today's modified order within 8 weeks and the same shall be satisfied in favour of the claimants by way of releasing the remaining amount minus the amount already paid to the claimants. 10. The statutory amount deposited before this Court shall be transmitted back to the learned Tribunal, which shall be utilized in satisfying the Award in favour of the claimants. 11. With the above modification in the Award, M.A. No. 289 of 2015 stands disposed of. 12. Pending petition, if any, also stands disposed of.