NEW INDIA ASSURANCE CO LTD Vs. SUBHRA MOHANTY

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment dated 29.8.2003 passed by the Hon'ble single Judge in Misc. Appeal No. 716 of 2001 dismissing the appeal.

(2.) The respondent Nos. 1 to 4 are the legal heirs of the deceased Saroj Kumar Mohanty who died in a road accident on 28.2.2000. As it appears from the record on the said date at about 10 p.m. in the night while the deceased Saroj Kumar Mohanty was proceeding in his scooter along with his cousin Basanta Kumar Mohanty to railway station, a taxi bearing registration No. OR 02-A 8144 came in a high speed being driven in a rash and negligent manner and dashed against the deceased and fled away from the spot. Because of the said accident, both the riders received severe injuries in hrain and were shifted to Capital Hospital. Though the pillion rider could survive, the deceased Saroj Kumar Mohanty succumbed to the injuries. The deceased was working as an Auditor in the Scale-II in Punjab National Bank, Kharagpur Branch and was drawing monthly salary of Rs. 22,000 and contributing about Rs. 15,000 for the family. After the death of the said Saroj Kumar Mohanty in the accident as stated above, the legal heirs respondent Nos. 1 to 4 filed an application claiming compensation of Rs. 30,00,000 before the First M.A.C.T., Cuttack. By the judgment and order dated 16.7.2001 the Tribunal allowed compensation of Rs. 17,35,688 with 9 per cent interest per annum. Challenging the said award passed by learned First M.A.C.T., Cuttack the New India Assurance Co. Ltd. preferred an appeal before this court vide M.A. No. 716 of 2001. The said appeal was dismissed by the judgment dated 29.8.2003 giving rise to the present Letters Patent Appeal. The sole ground on which learned counsel for the appellant challenges the judgment and order of the Hon'ble single Judge is that while computing loss of dependency, the contribution of the deceased towards the family, the entire gross salary has been taken into consideration whereas as per the decision of the Supreme Court in the case of Asha v. United India Insurance Co. Ltd., 2004 ACJ 448 (SC), the salary of the deceased after deductions has to be taken into consideration while computing loss of dependency of the claimants.

(3.) The above being the only question raised before this court, it is necessary to examine the records of the courts below to find out whether any such objection was ever taken by the insurance company or not. From the judgment and order of the learned Tribunal, it appears that the insurance company filed a written statement denying the allegations of the claimants. It further appears that though claimants in their claim petition stated that the deceased was getting monthly salary of Rs. 22,000, the Tribunal referring to the salary certificate found that the deceased was working as Inspector in the Punjab National Bank and was getting Rs. 18,028.03 per month. After deducting 1\3rd of the income for his own expenses, monthly dependency was calculated at Rs. 12,018.66 and accordingly he compensation has been calculated. Therefore, it cannot be said that the ratio laid down in the aforesaid case had not been followed by learned Tribunal while computing the compensation payable to the respondent Nos. 1 to 4. Moreover, from the impugned judgment it appears that in course of hearing of the appeal before the Hon'ble single Judge the judgment of the Tribunal was only challenged on the ground that the driver of the offending vehicle did not possess a valid driving licence on the date of accident and only on that ground the award was sought to be set aside. The Hon'ble single Judge in this connection took note of the decisions of the Supreme Court in New India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC) and United India Insurance Co. Ltd. v. Lehru, 2003 ACJ 611 (SC) and directed the insurer to proceed against the insured for violation of the policy condition and with the aforesaid direction and observation the appeal was dismissed. It is clear from the judgment of the Hon'ble single Judge that the question raised in this Letters Patent Appeal was never raised before Hon'ble single Judge. We, therefore, considering the findings of the learned Tribunal as well as the above fact are of the view that such question having not been raised before the Hon'ble single Judge, the appellant cannot raise the same in a Letters Patent Appeal. Apart from the above, on merits also it appears that the Tribunal while computing the salary and loss of dependency has taken note of the ratio laid down by the Apex Court in the case of Asha v. United India Insurance Co. Ltd., 2004 ACJ 448 (SC), relied upon by learned counsel for the appellant.