Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 3268 of 2010
Appellant :- The Oriental Insurance Co. Ltd. Respondent :- Smt. Chanchla Devi & Others Counsel for Appellant :- V.C. Dixit
Counsel for Respondent :- Parmeshwar,Sriprakash Dwivedi
Hon'ble Saral Srivastava,J.
The appellant- insurance company has come up in the present appeal challenging the order award dated 14.07.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Mirzapur whereby the Tribunal has awarded Rs.4,80,000/- for the death of one Shravan Kumar Tripathi in an accident on 28.04.2008.
The claim petition was instituted on the ground that deceased Shravan Kumar Tripathi was driver of Jeep No. U.P.-63-H-7377 and at about 12 hours in the night, the jeep turned turtle and in the said accident Shravan Kumar Tripathi suffered injuries and later on he died.
Challenging the award of the Tribunal, learned counsel for the appellant has contended that jeep was insured for private purposes whereas at the time of accident, deceased was travelling as a gratuitous passenger who was not covered under the insurance policy and, therefore, Tribunal has acted illegally by fastening the liability upon the appellant-insurance company to pay compensation.
Learned counsel for the appellant further contends that the age of the deceased was 42 years, therefore, in view of the judgment of Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 (6) SCC 121, the Tribunal should have applied multiplier of 14 instead of 15. Further, the finding of the Tribunal holding the income of the deceased to be Rs.3900/- is illegal and based on no evidence on record.
Per contra, learned counsel for the respondents submits that appellant has not raised the issue that deceased was not covered under the insurance policy before the court below. Appellant has not led any evidence to prove that the jeep was being used in breach of terms and conditions of insurance policy and thus, the said plea cannot be raised in appeal. He further contends that though as per the case of Sarla Verma (supra) the multiplier of 14 is applicable in the facts of the present case but the Tribunal has applied the multiplier of 15 and if the compensation is calculated by applying the multiplier of 14, it would make very little difference in the amount of compensation and thus, it is not a case where this Court should exercise its appellate power to disturb the finding on the quantification of compensation.
In respect of the assessment of income of the deceased on higher side, learned counsel for the appellant contends that deceased was Purohit and even if there was no evidence on record regarding the income of the deceased, it is known in common parlance that Purohit earns by doing Puja and in these circumstances, Tribunal was justified in assessing the income of the deceased to be Rs.3900/- per month.
I have considered the rival submissions of the parties and perused the records.
The judgment of the Tribunal reveals that appellant-insurance company has not raised the plea that the deceased was travelling as gratuitous passenger on the jeep and was not covered under the policy. The appellant had not led any evidence to prove that offending vehicle was being used in breach of the terms and conditions of insurance policy. Since no such plea was raised by the appellant before the Tribunal thus, appellant cannot be permitted to raise said plea in the appeal.
So far as the contention of learned counsel for the appellant in respect of multiplier is concerned, if multiplier of 14 is to be applied, very little amount is reduced from the compensation and this Court is of the opinion that compensation awarded by the Tribunal is just and proper and, therefore, the Court is not inclined to interfere with award of compensation on the ground of wrong application of multiplier.
So far as the submission of learned counsel for the appellant that income of Rs. 3900/- of the deceased assessed by the Tribunal is based on no evidence on record the judgement of the Tribunal reveals that it has considered various factors in coming to the conclusion that deceased had been earning Rs.3900/- per month. The Tribunal on the cogent reason has held the income of the deceased to be Rs.3900/- per month for the purpose of computing the compensation.
In view of the fact of the present case, this Court is not inclined to upset the finding of the Tribunal in respect of the income of deceased assessed by the Tribunal.
Thus, for the reasons given above, the appeal lacks merit and is hereby, dismissed. There shall be no order as to cost.
Order Date :- 29.11.2018/ Sattyarth