1. Heard Sri Sudhanshu Behari Lal Gour, learned counsel for the appellant. None for the respondents.
2. This appeal has been filed by the Insurance Company being aggrieved of award dated 30.11.2018 passed by learned Motor Accident Claims Tribunal/Additional District Judge, F.T.C.-I, Deoria in Claim Case No.242 of 2016 on two grounds namely, Income Tax Return of the deceased was required to be sub-divided by two as it has come in the evidence of the brother of the deceased, that brother of the deceased and deceased were jointly running the said provision store and, therefore, whatever income has been shown to be earned by the deceased in his Income Tax Returns is to be appropriated equally between the deceased and his brother. Another ground which has been raised in this appeal is that since, judgment of Supreme Court in case of Mukund Dewangan Vs. Oriental Insurance Company Ltd.; (2017) 14 SCC 663 is before the Larger Bench of the Supreme Court on reference in the matter of M/s Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi and others. Thus, learned Tribunal erred in applying the ratio of judgment in case of Mukund Dewangan (supra).
3. As far as first plea is concerned, Sri B.K. Mishra, whose name finds mention as the counsel for the claimants has filed a counter affidavit enclosing therewith copy of Income Tax Return of deceased-Sandeep Kumar Baranwal and his brother Ashwani Kumar for the assessment years 2015-16 and 2016-17 showing that both had filed their Income Tax Returns separately, therefore, the income which has been taken into consideration by the learned Tribunal on the basis of the individual Income Tax Return of the deceased could not have been split into two, merely on the ground that deceased was managing the shop along with his brother Ashwani Kumar, therefore, the first argument raised in the appeal is not tenable in terms of the documentary evidence produced on record and admittedly not rebutted by the Insurance Company by filing any further affidavit against the counter affidavit.
4. As far as plea of judgment of Mukund Dewangan (supra) being subjudice before the Larger Bench of the Supreme Court is concerned, law is settled in this regard as has been held in case of the Oriental Insurance Company Limited Vs. Sanju Bai and others; 2016 ACJ 1000 (M.P.) where it is held that unless there is stay on the operation of the judgment under reference, then till the reference is answered by the Larger Bench, judgment of Supreme Court will hold the field in the pending cases before all the subordinate courts. Since, there is no material available on record to show that operation and effect of the judgment of Mukund Dewangan (supra) has been stayed in reference in the matter of M/s Bajaj Alliance General Insurance Co. Ltd. (supra), the second argument also fails and, therefore, appeal being devoid of merits and is dismissed.
5. Record be sent back forthwith.
Order Date :- 19.1.2021 Ashutosh