Bajaj Allianz General Insurance Co. Ltd. Vs Zinat Khatoon And Ors.

--------- For the Appellant : Mr. Alok Lal, Advocate Mr. Santosh Kumar, Advocate (in M.A. No. 152 of 2017) Mr. Jayant Kr. Pandey, Advocate (in M.A. No. 210 of 2017)

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For the Respondent Nos. 1 to 4: Mr. Jayant Kr. Pandey, Advocate (in M.A. No. 152 of 2017)

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For the Respondent No. 5 : Ms. Nidhi Kumari, Advocate (in M.A. No. 152 of 2017) For the Resp. No.3 Mr. Alok Lal, Advocate (in M.A. No. 210 of 2017)

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11/Dated: 04/07/2024

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In both the appeals common award is under challenge in view of that both the appeals have been tagged together by the order of the Coordinate Bench and both the appeals are being heard together with the consent of the

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parties.

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Heard learned counsels for the appellants and learned counsels for the respondents.

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M.A. No. 152 of 2017 has been filed by the Insurance Company against the award dated 04.10.2016 passed by the learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Hazaribagh in Claim Case No. 11 of 2009 on the ground that the vehicle in question was not having permit in view of that recovery order should be there in the award which is lacking.

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M.A. No. 210 of 2017 has been has been filed by the claimants for enhancement of the award dated 04.10.2016 passed by the learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Hazaribagh in Claim Case No. 11 of 2009.

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Claim Case was filed alleging therein that on 01.10.2008 at about 3.00 P.M. the deceased Murtaza Ali was going to Hazaribag from his village on motorcycle and when he reached near Rola village suddenly a vehicle bearing no. JH-02K-3847 driven by his driver rashly and negligently dashed the motorcycle due to which the deceased received fatal injury and died during course of treatment at Hospital pursuant to which F.I.R. bearing no. 957/2005 under sections 279, 337, 338 and 304(A) of the I.P.C. was registered at Sadar (M) Police Station against the offending vehicle. It is also alleged that the deceased was employed as mechanic and was earing Rs. 12,000/- per month.

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M.A. No. 152 of 2017

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Learned counsel for the appellant-Insurance Company in M.A. No. 152 of 2017 submits that owner of the vehicle has not produced permit in view of that the award is required to be modified to the extent that after satisfying the award the Insurance Company will be entitled for recovery of said amount from the owner i.e. respondent no.5.

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Learned counsel for the respondent no. 5-owner draws the attention

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of the Court to the award and submits that finding is against the Insurance Company with regard to permit. She submits that there is no requirement of modification of award on that count. She submits that award has been rightly passed.

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Learned counsel for the claimants supported the version of the respondent no.5.

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The Court has gone through the award dated 04.10.2016 passed by the learned tribunal and finds that the learned tribunal has decided the issues with regard to permit against the Insurance Company relying on the judgment of the Hon’ble Supreme Court in the case of “Kamala Mangalal Vayani Vs. M/s United India Insurance Co. Ltd.” 2010 AIR SCW 6604. Once the said point is taken onus lies upon the Insurance Company to prove that however the permit point was decided by the learned tribunal against the Insurance Company as such there is no illegality in the award and award is not required to be modified to the effect that after satisfying the award the Insurance Company will be entitled for recovery of said amount from the owner i.e. respondent no.5.

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Accordingly, M.A. No. 152 of 2017 is dismissed. Pending I.A. if any, stands dismissed.

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M.A. No. 210 of 2017

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Learned counsel for the appellants/claimants submits that the learned tribunal has wrongly calculated the monthly income of the deceased and under the head of future prospect nothing has been provided and in view of that awarded amount should be enhanced. He submits that the deceased was a technician and he was earning a sum of Rs. 12,000/- per month and witnesses have also stated that the deceased was earning Rs. 9,000/- per month inspite of that learned tribunal has calculated monthly income of the deceased as Rs. 3,000/- per month.

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A person who was earning by way of any skill work a sum of Rs.

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9,000/- per month can not be ruled out and that was also supported by the

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witnesses examined by the claimants. As such the monthly income of the deceased should be Rs. 9,000/- in place of Rs. 3,000/- per month and accordingly the award is further modified to the extent that said amount will be calculated in view of above terms.

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Further the Court finds that learned tribunal has not given any amount under the future prospect in view of “National Insurance Company Limited Vs. Pranay Sethi & Others”(2017) 16 SCC 680. If a person is earning by self employment aged about below 40 years it should be 40 % of the earning as such said award is further modified to the extent that claimants will be entitled for 40% under the head of future prospect. The award is modified to the above extent.

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The M.A. No. 210 of 2017 is allowed in part and disposed of.

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The statutory amount deposited by the Insurance Company in M.A. No. 152 of 2017 shall be transmitted to the learned tribunal which shall be utilized in satisfying the award.

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It has been pointed out by the learned counsel for the Claimants that in view of order dated 13.09.2019 the awarded amount was deposited by the Insurance Company however interest has not been deposited as yet.

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In view of above the balance amount in terms of today’s modification along with interest will be deposited by the Insurance Company before the learned Tribunal within four weeks and award will be satisfied thereafter within one week.

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( Sanjay Kumar Dwivedi, J.)

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Satyarthi/

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Bajaj Allianz General Insurance Co. Ltd. v. Zinat Khatoon And Ors.

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Bajaj Allianz General Insurance Co. Ltd. v. Zinat Khatoon And Ors.

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