NEW INDIA ASSURANCE CO LTD Vs. PRAMILA

JUDGEMENT

(1.) THIS is an appeal filed by insurance company (non-applicant No. 3) under section 173 of the Motor Vehicles act, against an award dated 6. 5. 2005 passed by learned Member, Motor Accidents claims Tribunal, Indore in Claim Case No. 1 of 2003. By impugned award, the Claims tribunal allowed the claim petition of the claimants (respondent Nos. 1 to 4 herein)and awarded a total sum of Rs. 20,70,000 towards compensation for the death of one rajendra, aged around 40 years and who died in vehicular accident. According to insurance company (appellant herein), the learned Member of Claims Tribunal erred in determining the compensation payable to claimants to the extent of Rs. 20,70,000. It is according to them on much higher side and being excessive in nature, deserves to be reduced so as to make it a just and reasonable one. According to the insurance company, they have obtained the requisite permission as contemplated under section 170 of the Motor Vehicles Act from the tribunal for contesting the case on merits on all the defences available to owner and driver who were ex pane before Claims tribunal and that they actually contested the case by filing written statement. It is, therefore, contended that company has a right to file an appeal under section 173 of the Act and question the correctness of the impugned award insofar as it relates to determination of the quantum of compensation awarded to the claimants. So the question that arises for consideration in this appeal is: whether Tribunal was justified in awarding compensation amounting to rs. 20,70,000 to the claimants (respondent nos. 1 to 4) for the death of Rajendra? And secondly, whether the manner in which the calculation of the income of deceased was done by the Tribunal is proper, or not? In short, the facts of the case are these: rajendra, a businessman, aged around 41 years, was going in his Maruti van on 16. 10. 2002 from Mardana Square to Manglia bypass Road in Indore when his car was hit by a truck bearing No. MH 12-Q 9964. This truck was owned by the non-applicant No. 1, driven by non-applicant no. 2 and insured with non-applicant No. 3. Due to this dash, Rajendra died on the spot. It is this incident which gave rise to filing of claim petition by his legal representatives (respondent Nos. 1 to 4) under the provisions of the Motor Vehicles Act, seeking compensation for his death. The non-applicant Nos. 1 and 2, i. e. , owner and driver remained ex pane whereas the case was contested only by non-applicant No. 3, i. e. , insurance company (appellants herein)by filing written statement. Parties adduced evidence. As observed supra, Tribunal by impugned award, allowed the claim petition filed by the claimants and awarded a total compensation of Rs. 20,70,000. It is against this award; the company has felt aggrieved and filed this appeal.

(2.) HEARD Mr. S. V. Dandwate, learned counsel for the appellant and Mr. P. M. Choudhary with Mr. G. K. Neema, learned counsel for the respondents.

(3.) LEARNED counsel for appellant while assailing the legality and correctness of the award and in particular the manner in which the Tribunal took the yearly income of deceased to be the basis, contended that learned Member of Claims Tribunal erred in taking Rs. 2,20,000 as yearly income of the deceased. According to learned counsel, the correct and proper yearly business income of the deceased as per his income tax return (Exh. P31 and Exh. P32) was rs. 1,27,346 and not Rs. 2,20,000. It was, therefore, contended that Tribunal should have calculated the compensation taking rs. 1,27,346 to be the yearly income of the deceased which was a loss to the dependants, i. e. , claimants-respondent Nos. 1 to 4 on account of death of Rajendra. Learned counsel, thus, contended that if the calculation of compensation is done on this basis, i. e. , taking Rs. 1,27,346 to be the basis then in that event, the claimants will be entitled for much lesser sum than what has been awarded by the Tribunal. This in substance was the submission of learned counsel for the appellant while assailing the determination of quantum made by tribunal.