The High Court
Case Details
1 M.A. No. 245 of 2015 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- M.A. No. 245 of 2015 ---- Branch Manager, National Insurance Company Ltd., Koderma, Jhumritelaiya, P.O. and P.S. Koderma, Jhumritilaya, District Koderma, represented through its Dy. Manager, Jharkhand Legal Cell, National Insurance Company Ltd., Ranchi Branch II premises, Kutchery Road, P.O. Ranchi, P.S. Kotwali, District-Ranchi (Insurer of the Vehicle under their Policy No.210502/32/1/01090/95-96 w.e.f. 22.12.95 to 21.12.1996) …. Opposite Party No.3/ Appellants -- Versus -- (1) Vidyawati Devi, wife of late Ashok Kumar Pandey, resident of Village Jewada,, P.O. and P.S. Deori, District Giridih … Claimant/Applicant/Respondent (2) Ramakat Pandey, son of Bhuneshwar Pandey, resident of village Jewada,P.O. and P.S. –Deori,District-Giridih (Owner of the Vehicle bearing Registration No.BR-23-2606) …. Opposite Party No.1/Respondent (3) Diwakar Singh, son of late Ambika Singh, resident of Village –Gardih, P.S. Raj Dhanwar, P.O. Dariyadih, District Giridih …. Opposite Party No.2/Respondent. ----
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Appellant/Insurance Co. :- Mr. G.C. Jha, Advocate For the Respondent nos.1&2 :- Mr. A.K.Sahani,Advocate Mr. Ajit Kumar, Advocate ---- 09/06.02.2023 Heard Mr. G.C. Jha, the learned counsel appearing on behalf of the appellant/insurance company and Mr. A.K.Sahani, the learned counsel appearing for the respondent nos.1 and 2. By order dated 28.06.2022, on the submission of the learned counsel appearing on behalf of the appellant/insurance company that no relief is sought against the respondent no.3 and on his such 2 M.A. No. 245 of 2015 prayer, the name of the respondent no.3 was directed to be struck down. This appeal has been filed being aggrieved and dissatisfied with the judgment/award dated 11.03.2015, passed by learned District Judge-cum-Motor Vehicle Accident Claims Tribunal, Court No.1, Giridih in Title (MV) Suit No.02 of 2000, whereby the learned Tribunal has been pleased to award Rs.3,61,000/- with interest @ 9% per annum from the date of the judgment/award. On 17.02.1992 at about 7 P.M. the deceased-Ashok Kumar Pandey was going from his village Jawada to Raj Dhanwar by tractor bearig no.BR-23-2606 and while he reached near village Gadi, the said tractor turned turtle as a result of which deceased took his last breath on account of injury sustained. It is further alleged in the claim application that the deceased was aged about 35 years and his monthly income was Rs.3000/- per month as well as his earning from agricultural sale products was Rs.20,000/- per year. Mr. G.C. Jha, the learned counsel appearing on behalf of the appellant/insurance company submits that the accident took place on 17.02.1992 whereas the claim application has been filed in year 2000 i.e. much belatedly. He submits that the F.I.R was lodged on the basis of statement of the Chowkidar of that area and the charge sheet has been submitted in which Ashok Kumar Pandey was said to be driving the tractor in question and he was the deceased. He submits that on the oral witnesses examined on behalf of the claimants, the learned Tribunal has allowed the compensation case without appreciating these aspects of the matter. He further submits that the awarded amount has also not been calculated in accordance with law. Mr. Jha, the learned counsel further submits that it is well settled that the accident took place due to negligent driving of the driver, the claim is not maintainable and in that view of the matter there are judgments of Hon’ble Supreme Court as well 3 M.A. No. 245 of 2015 as the coordinate Bench of this Court wherein the claim of the claimants has been rejected. In view of the submissions of the learned counsels for the parties, the Court has gone through the L.C.R as well as the judgment of the learned Tribunal and finds that admittedly the accident took place on 17.02.1992 and the claim was filed in the year 2000. From the impugned judgment, it appears that after condoning the delay this compensation case was admitted. Thus, the argument of the learned counsel appearing for the appellant of filing the appeal belatedly is not sustainable. The charge-sheet has been submitted against Ashok Kumar Pandey stating therein that he was driving the tractor however, the four witnesses examined on behalf of the claimants, who have stated that the vehicle was not being driven by Ashok Kumar Pandey, rather it was being driven by Diwakar Singh and considering that the oral evidence adduced on behalf of the claimants, the learned Tribunal has held that Exhibit-5 is the Original Driving License issued in favour of Diwakar Singh who was driving the tractor in question and considering that neither oral evidence nor any documentary evidence has been adduced on behalf of the insurance company, the learned Tribunal held that Ashok Kumar Pandey died on account of negligent driving by the driver Diwakar Singh. If such a contention is being raised by the appellant, the onus lies upon the appellant to demonstrate by way of adducing the evidence which has not been done in the case in hand. Moreover in a written statement filed before the learned Tribunal the insurance company has stated in clear terms and in paragraph no.9 it has been averred that Ashok Kumar Pandey was travelling on the tractor against the condition of the policy. Thus, the plea being raised in this appeal is contradictory to the written statement filed on behalf of the insurance company. Thus, the argument advanced on behalf of the insurance company is not accepted by the 4 M.A. No. 245 of 2015 Court. So far as the third argument of the learned counsel appearing for the appellant is concerned with regard to calculation with regard to annual income to be deducted as 1/3rd in place of 1/4th is concerned, that is not being accepted by the Court in view of the fact that the age of the deceased was 35 years and the learned Tribunal has multiplied it 13 in place of 16, moreover, on the point of consortium and funeral expenses lesser amount has been allowed by the learned Tribunal and in that view of the matter the point of calculation is not accepted by the Court. There is no merit in this appeal and accordingly, M.A. No. 245 of 2015 is dismissed. The statutory amount deposited before this Court shall be transmitted back to the learned Tribunal to satisfy the award within six weeks from the date of receipt/production of a copy of this order. Let the L.C.R. be sent back to the learned court concerned forthwith. SI/sk
Decision
Pending petition, if any also stands disposed of. ( Sanjay Kumar Dwivedi, J.)