Divisional Manager, National Insurance Company Limited vs Sushma Devi And Ors

Appellant-Insurance Company has preferred this appeal against the award dated 16.12.2016 passed in Title (M.V.) Case No.64/2015 passed by

learned District Judge-XIV-cum-Motor Accidents Claims Tribunal, Dhanbad whereby the claimants have been awarded compensation to the tune of

Rs.17,74,400/-under section 166 of the Motor Vehicles Act as Rs.50,000/- has already been paid under section 140 of the Motor Vehicles Act along

with interest @6% per annum from the date of filing of the suit till payment is made by the Insurance Company.

Learned counsel for the appellant has assailed the impugned award on two counts. (I) That the contributory negligence of the deceased has not been

taken note of by the learned Tribunal. Learned counsel for the appellant has buttressed his argument on the basis of pleading of the parties submitting

that deceased was travelling on a motorcycle which dashed against a bus which has no break light but admittedly the deceased was travelling triple

riding in a fast speed where he could not save himself. The deceased was travelling on a motorcycle which was triple ridden. The deceased died

before he reached hospital whereas other two injured persons were taken to Primary Health Centre, Baliapur and as such, 1/3rd amount of

compensation ought to have been deducted by the learned Tribunal as 30% contributory negligence of the deceased.

Learned counsel for the appellant has further submitted that impugned order is bad on second ground that the Tribunal has wrongly given future

prospect @50% instead of 40% as the deceased was not having fixed income though he was in the age group of 40 years.

Learned counsel for the appellant has thus submitted that the amount may be deducted accordingly.

Learned counsel for the claimants has opposed the prayer and has submitted that the contributory negligence may not be considered by this court as

the break light of the bus was not flashed, as such, because of sudden break applied by the driver of the bus, the deceased was forced to hit the bus.

Learned counsel for the claimants has further submitted that the deceased had a fixed income of Rs.280 and the same has been supported by the

employer Jitendra Prasad who has supported the certificate which has been brought on record as Exhibit-1. Further, in view of the judgment passed

by the Apex Court in the case of Sarla Verma Vs. Delhi Transport Company as reported in (2009) 6 SCC 121 the future prospect of the deceased

has been rightly calculated by the learned Tribunal as 50%. Learned counsel for the claimants has further submitted that under the conventional head,

the Tribunal has only awarded Rs.10,000/- (Rs.2500/- as funeral expenses, Rs.2500/- as loss of consortium and Rs.5000/- as loss of estate) which is

contrary to the judgment passed by the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi & Ors. as reported in (2017)

16 SCC 680, whereby the amount under conventional head ought to have been Rs.70,000/-(Rs.15,000/- as funeral expenses, Rs.15,000/- as loss of

estate and Rs.40,000/-as loss of consortium). Learned counsel for the claimants has further submitted that interest ought to have been 7.5% but the

Tribunal has granted less interest contrary to the judgment passed by the Apex court in the case of Dharmpal and Sons vs. UP State Road Transport

Corporation; 2008 (4) JCR 79 SC.

Learned counsel for the claimants has further submitted on taking holistic view, this Court of appeal may not interfere with the amount of

compensation granted to two victims widow and daughter which is fair and just, as such, the appeal may be dismissed.

Learned counsel for the insured bus has submitted that the vehicle was insured at the time of accident and there was no fault of the driver of the

offending vehicle, as such, he has nothing to say in this matter.

Heard learned counsel for the appellant, claimants and insured bus. It appears that the Tribunal has not considered the contributory negligence of the

deceased who was triple rider and has dashed the bus from behind which shows there was contributory negligence apart from the violation of the

traffic rules, as such, 1/3rd amount is hereby deducted.

So far future prospect is concerned, since the deceased was working on fixed salary and the salary certificate was proved as Exhibit-1, this Court

considered that the enhancement of future prospect up to 50% is rightly done by the Tribunal in view of the judgment but so far submission made by

the learned counsel for the claimants regarding less payment under conventional head as well as less interest paid, this Court is not inclined to accept

the same in view of the fact that the claimants have not preferred any appeal.

Under the aforesaid circumstances, this Court only deduct 1/3rd of the amount of Rs.18,24,400/- which comes to Rs. 6,08,133/- thereby total

compensation comes to Rs.12,16,267/- along with interest as awarded by the learned Tribunal.

Accordingly, the appeal is allowed with aforesaid terms. The amount already paid by the Insurance Company shall be deducted and balance amount

shall be paid within a period of 90 days from today.

The Registrar General of this Court is directed to refund/reimburse the statutory amount of Rs. 25,000/- deposited at the time of filing of the appeal

within a period of four weeks from the date of filing of the requisition by learned counsel for the appellant.