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2018 Supreme(Jhk) 2146
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Mr. Rajesh Kumar, J.
Branch Manager, M/s. United India Insurance Co. Ltd. - Appellant
Versus
Namita Pandey - Respondent
M.A. No. 239 of 2015
Decided On : 11-04-2018
Mr. Ashutosh Anand, Advocate, for the Appellant; Mr. Sanjay Prasad, Advocate, for the Respondents
The court applied the principles of Sarla Verma's case and Pranay Sethi case to calculate the claim amount based on the deceased's income and dependency, and rejected new pleas raised at the appeal stage if not raised before the lower court.
Headnote:
Insurance - Motor Vehicle Accident - Sarla Verma's case - Ext-1 - Ext-2 - Pranay Sethi case - NH2, GT Road within Kulti PS, District-Burdwan (West Bengal) - Income Tax Return - M.V. Act, 1988 - Sarla Verma's case - Pranay Sethi case - AIR 2017 SC 5157
Fact of the Case:
The deceased was involved in a motor vehicle accident, and the Claim Tribunal assessed the claim amount based on the deceased's monthly income and dependency. The Insurance Company appealed, challenging the validity of the permit, monthly income, and contributory negligence.
Finding of the Court:
The court found the permit to be valid and rejected the appeal on contributory negligence as it was not raised before the Claim Tribunal. The court also adjusted the deceased's yearly income based on Income Tax Returns and applied the principles of Sarla Verma's case and Pranay Sethi case to calculate the claim amount.
Issues: Validity of permit, monthly income assessment, and contributory negligence
Ratio Decidendi: The court held that new pleas, such as contributory negligence, cannot be allowed at the appeal stage if not raised before the lower court. The court also considered Income Tax Returns to adjust the deceased's yearly income and applied the principles of Sarla Verma's case and Pranay Sethi case to calculate the claim amount.
Final Decision: The court disposed of the appeal and directed the Insurance Company to pay the claimant Rs. 16,54,375/- along with interest.
JUDGMENT
Rajesh Kumar, J. - The present appeal has arisen out of Award dated 20.01.2015 passed by District Judge VII cum MACT Judge, Dhanbad in Title (M.V.) Suit No. 91 of 2010.
2. The Suit has been instituted by the defendants-claimants that on 04.12.2009 while deceased Bishwanath Pandey was going to attend a reception party alongwith his two sons and other relatives on a Tata Sumo bearing registration number HR-51F-1204, at about 8 P.M. when the vehicle reached near Chourangi at NH2, GT Road within Kulti PS, District-Burdwan (West Bengal), an oil tanker bearing registration number WB- 37A-3205, being driven rashly and negligently, dashed the Tata Sumo as a result of which Bishwanath Pandey died on the spot and his son Bipul Pandey sustained serious injuries.
3. The Claim Tribunal after hearing the parties and taking evidence has recorded the monthly income of the deceased is Rs. 15,336/- (rupees fifteen thousand three hundred and thirty six) per month and his age has been assessed as 50 years and the number of dependent has been recorded as 5 (five). On the basis of above parameters, the multiplier of 13 has been applied, loss of dependency has been calculated as 3/4 of the monthly income and applying the principle of Sarla Verma''s case, the claim amount has been assessed as Rs. 20,78,464/- (rupees twenty lacs seventy eight thousand four hundred and sixty four) with interest @ 6% from the date of filing of the claim application.
4. The present appeal has been filed by the Insurance Company. The first issue has been taken by the Insurance Company that the vehicle in which the appellant was travelling was not having the valid permit. The permit has been produced before this Court and that has been verified by the Insurance Company and it has been found genuine. This point taken by the appellant stands negated as the offending vehicle was having valid permit.
5. Now second issue has been raised by the appellant regarding (i) the monthly income and (ii) the contributory negligence of the Tata Sumo.
6. So far as, contributory negligence is concerned, it has neither been pleaded before the Claim Tribunal nor evidence has been placed by the appellant-Insurance Company. As such issue has not been framed and claimant has not been given opportunity to lead evidence on contributory negligence. As such Insurance Company could not be allowed to raise the such plea first time before this Court.
7. Learned counsel for the appellant has relied upon Ext-2, wherein it has been mentioned that right side front of the offending vehicle was damaged.
8. Taking such plea, it has been argued that negligence was on the part of Tata Sumo and not on the part of oil tanker. This issue has to be specifically framed before the court below and opportunity to be given to the claimant to negate the same by leading proper evidence. Therefore, new plea cannot be allowed at this stage.
9. So far as monthly income is concerned, it has been submitted by learned counsel for the appellant-Insurance Company that from perusal of Ext-1 which is Income Tax Return for the assessment year 2008-09 i.e. before the death of the deceased wherein income of deceased was Rs. 1,45,585/- (rupees one lac forty five thousand five hundred and eighty five) and net income was assessed as Rs. 1,09,940/- (rupees one lac nine thousand nine hundred and forty). Accordingly, the figure Rs. 1,49,940/- (rupees one lac forty nine thousand nine hundred and forty) ought to have been considered and not the gross income.
10. So far as, Ext-1/1 is concerned, that has been filed for the assessment year 2009-10 wherein gross total income has been found as Rs. 1,84,034/- (rupees one lac eighty four thousand and thirty four) and net income as Rs. 1,49,880/- (rupees one lac forty nine thousand eight hundred eighty). This return has been filed after four months of the death of the deceased.
11. Apart from Income Tax Return, no other oral witness has been examined on behalf of the claimants (sons of the d
