Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 294 of 2007 Appellant :- The New India Assurance Company Ltd.
Respondent :- Raja Ram & Others Counsel for Appellant :- Kuldip Shanker Amist Counsel for Respondent :- Nigamendra Shukla
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Though this matter is of the year 2007, the owner has not appeared.
The Insurance company has felt aggrieved that it has been given recovery rights whereas they should have been fully exonerated. The owner has absented himself.
Sri Nigamendra Shukla, appearing for the claimant, has rightly contended that the Tribunal has fallen in grave error as at one stage relying on the judgment in the case of Lata Wadhwa & others Vs. State of Bihar and others, (2001) 8 SCC 197, has held that income of the house wife (deceased) should be considered to be Rs.3,000/- meaning thereby it would be Rs.36,000/- per annum. In the next paragraph after deducting 1/3 namely holding that the family would be entitled to Rs.24,000/- and to that multiplier, which is applicable, is multiplied further deducted 1/3rd amount namely Rs.8,000/- which could not have been done. Hence, a lump sum amount of Rs.8,000 x 9 which would be Rs.72,000/- would be admissible to heirs of the deceased. This is nothing else but against the mandate and miscalculation, therefore, even without filing enhancement application, it has to be considered in the light of judgment passed by this Court in the case of National Insurance Co.Ltd. Vs. Smt. Vidyawati Devi and 2 others, F.A.F.O.No.2389 of 2016, decided on 27.7.2016, to which I was a signatory.
The question arises whether the Insurance company should deposit the said amount or it should be the owner once the Tribunal has felt that there are certain breaches committed by the owner, it would not be fair to the Insurance company nor to direct them to deposit the amount of Rs.72,000/- and recover the same from the owner. The claimant will be at liberty to claim the amount from the owner by way of execution proceedings. The said amount of Rs.72,000/- would carry the interest as awarded by the Tribunal.
Till the date of judgment, the interest will be payable by the Insurance company as it has been given recovery rights. Non pecuniary amount Rs.25,000/- namely a total amount of Rs.1 lac is ordered to be recovered from the owner, who has absented himself before this court also. Interest up to the judgment will be payable by the Insurance company. Rest thereafter will be payable by the owner. It goes without saying that the said amount will be recoverable by the Insurance company once the same is deposited.
Appeal partly allowed. Oral cross objection partly allowed.
Order Date :- 26.2.2018 Irshad