Patna High Court - Orders
National Insurance Company Ltd vs Renu Devi & Ors on 7 August, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No. 398 of 2002
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NATIONAL INSURANCE COMPANY LTD. SAMATIPUR, through
its Branch Manager, Patna, Birchand Patel Path, Patna.
.... .... Appellant.
Versus
1. Renu Devi wife of late Shashi Kr. Jha, alias Shashi Bhushan Jha.
2. Bhavishya Kr. Jha
3. Mohan Kumar Jha
Both sons of late Shashi Kumar Jha
4. Bullu Kumari
5. Soni Kumari
6. Moni Kumari
Major daughters of late Shashi Kumar Jha, now under the
Guardianship of their mother, Renu Devi.
7. Punkala Devi wife of Shri Permanand Jha, Mother of the
deceased late Shashi Kr. Jha.
8. Perma Nand Jha, S/o Anant Jha, father of the deceased
All of village Rampura, Post office Gopalpur Police Station
Kalyanpur, District Samastipur.
..........O.P. - Claimants.
9. Narayan Jha, son of Rajeshwar Jha, Resident of village
Kalyanpur, Police Station Kalyanpur, District Samastipur
Owner of Tata 407-B.R.33P-9009.
...........O.P. - O.P. No. -1.
10. Jitendra Roy son of Shri Yogendra Rai, resident of village
Kalyanpur Chowk Police Station Kalyanpur, District
Samastipur, Driver of Tata 407 BR 33P/9009 ...O.P. - O.P.No.2.
.... .... Respondents.
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
ORAL ORDER
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24 07-08-2012Heard Sri Ashok Kumar Sinha, learned counsel for the appellant/National Insurance Co. Ltd. and Smt. Mira Kumari, learned counsel, who has appeared on behalf of claimants/respondent nos. 1 to 8.
2 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012
2 / 10 The present appeal, under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as "M. V. Act"), has been preferred against judgment dated 17.04.2002 and award dated 03.05.2002 passed in Motor Vehicle Claim Case No. 20 of 1996 by 5th Additional District Judge-cum-Claim Tribunal, Samstipur (hereinafter referred to as "Tribunal").
By the judgment and award, learned Tribunal, while allowing claim petition, had directed the insurer of the offending vehicle i.e. the appellant to pay lump-sum amount of compensation of Rs. 5,00,000/- (five lacs), after deducting 1/8th income, as personal expenses for the deceased and thereafter, amount of Rs. 4,60,000/- was directed to be paid. The said amount was required to be paid, after deducting Rs. 50,000/- (fifty thousand), which was paid, as interim compensation, under Section 140 of the M. V. Act. Direction was given to the owner of the offending vehicle as well as the appellant/insurer of the offending vehicle to pay the compensation amount within a period of two months from the date of award alongwith interest @ 12% per annum from the date of filing of the claim petition till the date of realization.
In this case, the husband of claimant/respondent no. 1, who was a daily-wages employee in the Samastipur 3 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012 3 / 10 Collectariate, died in a vehicular accident, while he was traveling on Tata 407, having registration no. BR-33P-9009. Accident had occurred on 31.12.1995. Subsequently, claim petition was filed for grant of compensation to the tune of Rs. 6,17,462/-. However, learned Tribunal, by the impugned order, has directed for paying compensation of Rs. 4,60,000/- and that too was directed to be paid by the owner of the vehicle as well as the appellant/insurer of the offending vehicle. The judgment was passed on 17.04.2002 and award was prepared on 03.05.2002. Thereafter, without award, the present appeal was filed under Section 173 of the M. V. Act on 03.09.2002. The Memo was filed without copy of award, whereas, as per under Section 173 of the M. V. Act, „an appeal can be preferred against an award of a Claim Tribunal within ninety days from the date of the award‟. However, in the present case, without any award or without making any prayer against the award, the appeal was presented. It was not only filed without award, but the insurance company even had not filed statutory amount, which was required to be filed alongwith the appeal. Subsequently, in casual manner, on 25.03.2003, through challan, statutory amount was deposited. In the appeal, there were many infirmities, but the appellant proceeded in casual manner. Though, appeal was filed much 4 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012 4 / 10 after the expiry of the statutory period of limitation, the appellant even not preferred to file any limitation petition for condoning delay for quite a long time. The casual approach of the appellant is further evident from the fact that once the appeal for non-compliance of order stood dismissed, but after filing of restoration petition in 2005, it stood restored. In any event, after several years, in the year 2008, a limitation petition was filed by the appellant, vide I. A. No. 5922 of 2008 and plea was taken for condoning delay on the ground that laches on the part of appellant was not intentional. Since without hearing the appellant on merit of the appeal, the Court has proceeded to examine the conduct of the appellant, it would be appropriate to quote the grounds set-forth in the limitation petition, which are as follows:-
1. That the appellant has already filed the above-
told Appeal in this Hon'ble Court which is pending consideration.
2. That the instant Appeal was filed on 3.9.2002 Challenging the Award dated 3.5.02 passed by the 5th Additional District Judge Cum Claim Tribunal, Samastipur within the statutory time prescribed under the Act annexing the copy of Judgment but the copy of Award prepared in this case could not be filed with the memo of Appeal as the same was not available with the appellant.
3. That the counsel of the Appellant immediately sent a letter to the Appellant on 15.9.2002 to send the certified copy of the Award prepared 5 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012 5 / 10 in this case and the Appellant sent the said letter to the its local counsel, Samastipur Md. Anzarul Haque for the needful who instructed his clerk to obtain the same.
4. That the certified copy of the Award was obtained by the clerk and he sent the same to the Appellant in the first week October 2002 but the said certified copy could not reach its destination rather lost in transit and in that view of the matter the Appellant reminded the said local lawyer in November 2002 to send another certified copy of the Award and he again instructed his clerk to obtain the same. He again applied, for obtaining the same, which was obtained on 1.4.2003 and sent to the Appellant who immediately on its receipt, sent to the counsel of the Appellant in this court, who filed in the court on 8.4.03 and thus delay was caused.
5. That there was no laches on the part of the Appellant in filing the Award late.
6. That the delay occurred due to unforeseen circumstances which was beyond the hand of the appellant.
7. That the Appellant being a law abiding statutory body has the highest regard for court of Justice. The limitation expired on 1.8.02. While the Court was recording order, learned counsel for the appellant interrupted and submitted that the appeal, instead of limitation, may be heard on merit. It was submitted that earlier this appeal was heard by the then Chief Justice and judgment was reserved and subsequently, it was 6 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012 6 / 10 released. On this submission, this Court examined the order- sheets and on perusal of the order-sheets, the Court was satisfied that it was never heard by the Chief Justice, nor judgment was reserved. Even thereafter, learned counsel for the appellant himself perused entire order-sheets, after taking the record from the Court and thereafter, he admits that he was incorrect. Since, he has insisted that besides hearing or passing order only on limitation, the appeal may be heard on merit. He was allowed to argue the case on merit.
It was submitted on merit by learned counsel for the appellant that learned Tribunal has completely failed in not framing the issue. He submits that issue, regarding availability of the driving license to the driver of the offending vehicle, was an important issue, but the learned Tribunal has not framed the said issue. He further submits that learned Tribunal in this case, while multiplying, had taken the age of deceased, who was 34 years on the date of accident, whereas, as per settled law, the age of the mother of the deceased was required to be taken into account.
On aforesaid two grounds, he has prayed for setting aside the judgment and award.
Fact remains that deceased, Shashi Kumar Jha died 7 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012 7 / 10 in a vehicular accident, while traveling in a vehicle, which was insured by the appellant. Accident occurred on 31.12.1995. He left eight dependants - wife, who is respondent no. 1, five minor children (respondent nos. 2 to 6) and old mother & father (respondent nos. 7 & 8). A claim petition was filed on behalf of eight claimants. In support of the claim case, the claimants examined altogether four witnesses. In the case, the appellant/insurer appeared and filed written statement. In written statement, one of the grounds was taken by the appellant/insurer was that the driver of the offending vehicle was not having valid driving licence. Besides filing written statement, no evidence was brought on record to dispute the claimants‟ case, nor the appellant/insurer has taken pain to establish that it was a case, in which, driver was not having valid driving licence. In such cases, if the vehicle is ensured, onus is on the insurance company to establish that at the time of accident, the driver was not having valid driving licence. But, this was not done by the appellant/insurer before the court below and as such, the plea for non-including the issue of driving licence has got no relevance. Moreover, learned counsel for the appellant has not brought any fact to the notice of this Court as to whether the appellant had suggested such issue 8 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012 8 / 10 before the court below at the time of framing of the issue. It was specific case that accident had occurred due to rash and negligent driving by the driver of the vehicle, which was insured by the appellant. So far as taking into account the age of mother of the deceased is concerned, the Court is of the opinion that submission of learned counsel for the appellant is simply misconceived. It was not a case in which, deceased was bachelor. Deceased was a married person and he had left behind him his wife, five minor children and old mother & father. In that view of the matter, under the provisions contained in the Second Schedule of the M. V. Act, the age of the deceased in such cases was required to be taken for multiplier. The learned Tribunal, after considering entire fact as well as the income of the deceased and dependency, has directed for paying lump-sum compensation amount. Primarily, the Court is satisfied that there is no such glaring error in the judgment of the learned Tribunal, which warrants any interference by this Court, that too at such a belated stage.
Fact remains that the appellant had taken the judgment and award of the learned Tribunal in a casual manner and the appellant succeeded in depriving the claimants to get the fruit of the judgment and award in a case, in which death had 9 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012 9 / 10 occurred in a vehicular accident in long back in the year 1995. The order-sheet categorically indicates that it was the appellant, who one way or the other, had delayed the matter. Even in the limitation petition, which was filed in the year 2008, no plausible explanation has been given for delayed filing of the appeal. Appeal without award was filed in the year 2002, whereas, statutory amount was deposited on 25.03.2003 and limitation petition was filed in the year 2008.
Considering the facts and circumstances and approach adopted by the appellant, the Court is satisfied that there is no ground either for interference with the impugned judgment and award or for allowing limitation petition. One of the objects for providing compensation in a vehicular accident was to provide immediate financial relief to the family of the deceased, which has been completely frustrated by the act of the appellant.
I do not find any ground for interference. The appeal stands dismissed.
Keeping in view the fact that the appellant had proceeded in casual manner and deprived the claimants from receiving compensation amount for more than ten (10) years, while dismissing the appeal, it is desirable to impose a cost of 10 Patna High Court MA No.398 of 2002 (24) dt.07-08-2012 10 / 10 Rs. 25,000/- (twenty five thousand) on the appellant/National Insurance Co. Ltd.
Accordingly, the appeal stands dismissed with a cost of Rs. 25,000/- (twenty five thousand).
The compensation amount in terms of order of the judgment and award of the learned Tribunal as well as amount of cost is directed to be paid to the claimants within a period of two months from the date of receipt/production of a copy of this order.
In view of dismissal of the appeal, the statutory amount, deposited by the appellant, is directed to be remitted back to the court below for its payment to the claimants.
(Rakesh Kumar, J.) Anay