Branch Manager, Bajaj Allianz General Insurance Co. Ltd vs Satnam Kaur And Ors

Learned counsel for the appellant has submitted that there is delay of 167 days in preferring the appeal and for condonation of the same. I.A.No.4267 of 2017 has been preferred.

Learned counsel for the appellant has submitted that reason of delay has been assigned in paragraph Nos-5 to 10 of the Interlocutory Application and has prayed to condone the delay as the appeal has been preferred after following due process and delay was not caused because of latches on the part of one person rather it was on behalf of an organization.

Learned counsel for the claimants and owner of the offending vehicle have opposed the same but in absence of any counter affidavit the delay is hereby condoned.

I. A. No. 4267 of 2017 is hereby allowed.

M. A. No. 276 of 2017

Heard, learned counsel for the appellant, Mr. Alok Lal, learned counsel for the claimants, Mr. M. I. Khan and learned counsel for the owner of the offending vehicle, Mr. Shashi Kumar Verma.

This Miscellaneous Appeal has been preferred by Bajaj Allianz General Insurance Co. Ltd. against the award dated 31.08.2016 in M.A.C.T. Case No.01 of 2015 passed by learned District Judge-I-cum-Motor Vehicle Accident Claim Tribunal, Pakur, whereby the claimants namely, Satnam Kaur and Aman Gandhi have been awarded compensation to the tune of Rs.24,85,000/- along with simple interest @9% per annum from the date of filing of the application i.e. 05.01.2015 till its realization.

Learned counsel for the appellant, Mr. Alok Lal has assailed the impugned award on the following grounds:-

Ground no.1, Learned counsel for the appellant has assailed the impugned award on the ground that the learned Tribunal has wrongly awarded compensation under the conventional head to the tune of Rs.3 lacs instead of Rs.70,000/- in view of judgment passed by Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 whereby under the conventional head claimants are only entitled for Rs.70,000/-(Rs.15,000/- as funeral expenses, Rs.15,000/- as loss of state and Rs.40,000/- as loss of consortium), as such, there shall be deduction of Rs.2,30,000/- under the conventional head.

Ground no.2, Learned counsel for the appellant has further submitted that learned Tribunal has awarded interest @ 9% per annum from the date of filing of claim application i.e. 05.01.2015 till its realization, which is contrary to the judgment passed by Apex Court in the case of Dharmpal and Sons Vs. U.P. State Road Transport Corporation [2008 (4) JCR 79 (SC)] where the Apex Court has held that the interest ought to have been at the prevalent rate of interest of bank on the date of award or @ 7.5% per annum simple interest from the date of filing of application, as such, there shall be deduction of interest @1.5% per annum from the date of filing of the application i.e. 05.01.2015 till its realization.

Ground no.3, Learned counsel for the appellant has further submitted that there is no evidence with regard to death of the deceased in motor accident, as such, the claim application itself was not maintainable before the learned Tribunal, as such, the impugned award is fit to be set aside.

Ground no.4, Learned counsel for the appellant has further submitted that owner of the offending vehicle has not produced any relevant document so as to establish that there is no violation of the terms and conditions of the policy, as such, owner of the offending vehicle is liable to pay the compensation as owner of the offending vehicle has not discharged his duty and learned Tribunal has not considered the same and wrongly fixed the liability upon the Insurance Company.

Ground no.5, Learned counsel for the appellant has further submitted that there is no finding with regard to rash and negligent driving of the offending vehicle, as such, the application was not maintainable under Motor Vehicle Act.

Ground no.6, Learned counsel for the appellant has further submitted that learned Tribunal has wrongly considered the income of the deceased and computed the compensation on the higher side, as such, the same may be reduced by considering notional income of the deceased. On the basis of above mentioned grounds, learned counsel for the appellant has assailed the impugned award with a prayer to set aside/modify the same.

Learned counsel for the claimants, Mr. M. I. Khan has supported the case of the claimants and has submitted that learned Tribunal has rightly considered the compensation of the claimants.

Learned counsel for the owner of the offending vehicle, Mr. Shashi Kumar Verma has submitted that owner has categorically stated in his written statement that he had all the valid papers and has not violated terms and conditions of the policy, as such, learned Tribunal has rightly held that there is no violation of terms and conditions of the policy by the owner of the offending vehicle or driver of the offending vehicle in absence of any contrary evidence brought on record by the Insurance Company. The Tribunal has rightly considered the case and awarded the compensation in favour of the claimants.

Heard, learned counsel for the appellant, learned counsel for the claimants and learned counsel for the owner of the offending vehicle and perused the impugned award.

So far the ground no.1 is concerned that learned Tribunal has awarded excess compensation under the conventional head, this Court perused the judgment passed by the Apex Court in the case of Pranay Sethi(supra) and found that the contention of the appellant is right. Accordingly under the conventional head instead of Rs.3 lacs it ought to have been Rs.70,000/-(Rs.15,000/- as funeral expenses, Rs.15,000/- as loss of state and Rs.40,000/- as loss of consortium). Considering the same the total amount of compensation awarded by learned Tribunal to the tune of Rs.24,85,000/- is hereby reduced by Rs.2,30,000/- which comes to Rs.22,55,000/-. As such, the ground no.1 taken raised by learned counsel for the appellant is hereby allowed by reducing the amount under conventional head from Rs.3 lacs to Rs.70,000/- thus there shall be deduction of Rs.2,30,000/- from total compensation which now comes to Rs.22,55,000/-.

So far the ground no.2 with regard to interest @ 9% per annum is concerned, the learned Tribunal has wrongly awarded the interest @9% per annum contrary to the judgment passed by Apex Court in the case of Dharmpal (Supra), as such, the rate of interest is also reduced from 9% per annum to 7.5% per annum. As such, the appellant Insurance Company is only liable to pay Rs.22,55,000/- along with interest @7.5% per annum from date of filing application to the date of realisation of awarded amount.

It appears that Dharam Singh died in motor accident caused by offending vehicle bearing registration no. JH16A-9941, which was duly insured before the Bajaj Allianz General Insurance Co. Ltd. vide Policy No.OG-132418-1803-00000958 for the period of 13.03.2013 to 12.03.2014 and the accident was occurred on 30.03.2013. The vehicle was driven by Dipankar @ Dipankar Sarkar, having valid driving license but no contrary evidence has been brought on record by Insurance Company. The learned Tribunal has rightly held at paragraph-12 in page no.11 of the impugned award that vehicle was duly insured at the time of accident and registered in the name of the owner of the vehicle. The driver had valid driving licence and driver had not violated the terms and conditions of the Insurance Policy. The Insurance Company has not been able to show that owner of the offending vehicle has violated terms and conditions of the Policy, for which vehicle has been insured under the insurer, as such, the insurer of the vehicle is liable to pay the compensation to the claimants for the death of Dharam Singh, who died in motor accident. The learned Tribunal has thus rightly concluded that the Insurance Company is liable to pay the same. So far computation of compensation on the basis of the income is concerned, the Insurance Company has not brought any evidence on record to discard the claim of the claimants, as such, the learned Tribunal has rightly considered the income of the deceased as Rs.18,000/- per month as he was owner of the vehicle and died at the age group of 45 years, as such, the ground nos.3, 4, 5 and 6 taken by learned counsel for the appellant is hereby negated.

Ground nos.3, 4, 5 and 6 are hereby rejected and ground nos.1 and 2 are allowed, as such, the instant appeal is partly allowed with aforesaid modification. The Insurance Company is liable to pay an award of Rs.22,55,000/- along with interest @ 7.5% from the date of filing of the claim application i.e. 05.01.2015 till its realization within a period of 90 days from today.

I. A. No.4163 of 2019 for vacating stay is hereby closed as the appeal has already been decided.

The statutory amount deposited by the Insurance Company shall be reimbursed to the Insurance Company by Registrar General of this Court within a period of four weeks from the date of filing of the requisition by the counsel for the appellant.