RELIANCE GENERAL INSURANCE Vs. MOSTT. KIRAN DEVI

JUDGEMENT

(1.) Heard, learned counsel for the appellant and learned counsel for the respondents/claimants.

(2.) Appellant- Reliance General Insurance Company Limited has preferred this Miscellaneous Appeal against the award dated 16.12.2016 in Claim Case No.10 of 2011, passed by learned District and Additional Sessions Judge-1-Cum-Motor Vehicle Accident Claims Tribunal, Koderma whereby the claimants namely, Mostt. Kiran Devi @ Kiran Devi, Sudhir Kr. Verma, Arun Kr. Verma and Tarun Kr. Verma have been awarded compensation to the tune of Rs.16,55,806/- along with interest @ 6% per annum from the date of filing of claim application i.e. 06.06.2011 till its realization. However, if the said amount is not deposited within 30 days, the claimants are entitled to recover the amount through process of law with a penal interest @ 9% per annum from the date of filing of the claim application. Learned counsel for the appellant has submitted that the compensation amount has been awarded without deducting the income tax component of the salary. As per the impugned award the deceased was a Government employee posted as an Amin, Markacho Circle, Koderma was earning Rs.20,226/- per month and on the basis of that annual income has been calculated as Rs.20,226/-x 12 = 2,42,712/- per annum but from the calculation mentioned in the impugned award the learned Tribunal has not deducted the tax, component and has wrongly considered the entire salary as income for calculation of compensation rather as per the judgment in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680

(3.) At paragraph 59.8 the income is the salary minus tax component as such excess amount has been calculated. Learned counsel for the appellant has further submitted that 9% penal interest has been granted which is not permissible under the law. The learned Tribunal can only award a reasonable amount either 7.5% or prevalent bank rate interest in view of the judgment passed in in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, 2008 (4) JCR 79 SC. Learned counsel for the appellant has further submitted that though the notice has been issued to the owner of the vehicle but the owner of the vehicle could not appear before the learned Tribunal and in absence of legal material against the appellant, the liability would not be fastened upon the Insurance Company, as the learned Tribunal has observed that burden lies upon the O.P. No.2 (Sudhir Kr. Verma) and O.P. No. 3 (Arun Kr. Verma) to prove that at the time of accident driver has valid and effective driving licence but the O.P. No.2 (Sudhir Kr. Verma) has not appeared and O.P. No.3 (Arun Kr. Verma) driver has not filed any written statement before the learned Tribunal to establish that at the time of accident driver had valid driving licence, as such, the learned Tribunal has wrongly and erroneously saddled the Insurance Company with the liability. Learned counsel for the appellant has further submitted that though the learned Tribunal has given right to recover from the insurer the amount paid to the 3rd party, if any in breach of the policy or driver without having any valid licence, but in absence of any such finding, it would be difficult for the appellant to realize the same in view of the judgment in the case of Shamanna and Anr. Vs. Divisional Manager, Oriental Insurance Company Limited and Ors., reported in (2018) 9 SCC 650 at Para-14 which is quoted hereunder :-