M/S New India Assurance Company Limited vs Asgari Bano And Ors

Heard, learned counsel for the appellant and learned counsel for the respondent no.9 (owner).

Appellant- New India Assurance Company Limited has preferred this appeal against the award dated 07.03.2017 passed by the learned District

Judge-VIII-cum-MACT, Dhanbad, whereby the claimants have been awarded compensation to the tune of Rs.16,89,500/- along with interest @ 6%

per annum from the date of filing of the claim application i.e. 11.02.2013 till its realization. Defendant no.2/Insurance Company is directed to pay the

compensation amount of Rs.12,00,000/- to the claimant no.1 on behalf of herself and on behalf of her minor son and daughters. Defendant

no.2/Insurance Company is further directed to pay remaining amount of Rs.4,89,500/- to claimant no.8, mother of the deceased within 60 days of the

order.

Learned counsel for the appellant has submitted that the appellant- Insurance Company has assailed the impugned Award mainly on two counts: (i)

that the income of the deceased has wrongly been considered by the learned Tribunal as it has not taken notice with regard to the Investigators’

report submitted by the Insurance Company and (ii) that the post-mortem report of the deceased (Maqsood Alam) shows that stomach of the

deceased contained 300 CC of alcoholic smell partially digested food particles, but even then the learned Tribunal has fastened the Insurance

Company with the liability.

Learned counsel for the respondent no.9/owner has submitted that both the issues have been decided by the learned Tribunal in accordance with law.

So far income of the deceased is concerned, the learned Tribunal has considered the income of the deceased at Issue No.(vi) in para-13 of the

impugned Award and has submitted that in absence of any evidence to show that the deceased had less income as the deceased was a permanent

Mechanic of M.K. Enterprises and to that effect the witnesses have supported the earning of Rs.12,500/- per month of the deceased, as such, learned

Tribunal has rightly decided the income of the deceased to be Rs.12,500/-. So far the second issue with regard to 300 CC of alcoholic smell partially

digested food particles found in the stomach of the deceased is concerned, as per the post-mortem report.

Learned counsel for the respondent no.9/owner has submitted that the learned Tribunal while deciding the issue in Para-14 of the impugned judgment,

the Tribunal has held that no such evidence has been led on behalf of the defendant that the deceased was driving the motorcycle in a drunken state

and as such, he equally contributed in the accident as the opinion given in the Post-mortem report regarding alcoholic smell is not substantive piece of

evidence rather a corroborative piece of evidence. No such evidence has been brought on record on behalf of the defendant No.2 that the deceased

was driving the vehicle in a drunken state, which was the cause of the accident. As such, learned Tribunal has considered all those aspects which

have been raised by the appellant-Insurance Company before this Court and such findings cannot be set aside without having any legal material on

behalf of the Insurance Company.

Further it appears that the claimants have also been issued notice, but they have chosen not to appear before this Court.

Having heard learned counsel for the appellant- Insurnace Company and learned counsel for the owner/respondent and perused the materials brought

on record, it appears that the issues raised by the Insurance Company have been discussed by the learned Tribunal, as such, no further finding is

required to be given under the law. The learned Tribunal has considered the evidence of the claimants for holding that the deceased had income of

Rs.12,500/- per month, as such, on the point of income, this Court is not interfering with the same. So far the post-mortem report of the deceased

containing 300 CC of alcoholic smell partially digested food particles is concerned, the learned Tribunal has rightly considered that no such evidence

has been brought on record by the Insurance Company/defendant no.2 that the deceased was driving the vehicle in a drunken state, as such, this

Court restrains itself from interfering with the same.

Accordingly, the instant Miscellaneous Appeal being devoid of merit is hereby dismissed.

Appellant- Insurance Company is directed to satisfy the impugned Award at the earliest preferably within a period of 90 days from today along with

the interest in terms of the impugned Award passed by the learned Tribunal.

The Registrar General of this Court is directed to refund the statutory amount deposited by the appellant at the time of filing of Miscellaneous Appeal,

within a period of four weeks from the date of the filling of the requisition/application for the same by the counsel for the appellant.

I.A. no.7766 of 2019 filed for stay of the proceeding stands closed.