1 IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No. 244 of 2012 ------ The Divisional Manager, United India Insurance Co. Ltd., (Incharge of Pakur & Sahibganj District), Bhagalpur Branch, P.O. & Dist. Bhagalpur (Bihar) through its Senior Divisional Manager- S.N. Singh S/o Late Ranjeet Singh, R/o Lake Avenue, Kanke Road, P.O. Ranchi University, P.S. Gonda, Dist. Ranchi. .... .... Appellant Versus 1. Nando Rani Mondal, W/o Sarthak Mondal. 2. Sarthak Mondal, S/o Late Dhiren Monda @ Dhirendra Nath Mondal. Both reside of village Harishpur (Khuttapara) (Chhotapara), P.O. & P.S. Pakur, (Malapahari), Dist. Pakur. 3. Awdhesh Kumar Dubey, S/o Late Jagdish Dubey, R/o village Fushro Bazar, Bokaro, P.O., P.S. & Dist. Bokaro. … …. Respondents With Cross Objection No.24 of 2021 ………….. 1.Nando Rani Mondal, W/o Sarthak Mondal 2.Sarthak Mondal, S/o Late Dhiren Mondal @ Dhirendra Nath Mondal …. Appellants Versus 1.Awadhesh Kumar Dubey, S/o Late Jagdish Dubey 2.Divisional Manager, United India Insurance Co. Ltd. (Incharge of Pakur and Sahibganj Districts), Bhagalpur (Bihar). … Respondent(s) CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellant : Mr. Ashutosh Anand, Advocate Mr. Arvind Kumar Lall, Advocate Mr. Asadul Haque, Advocate Mr. Shivam Lath, Advocate For the Respondents : Mr. Arvind Kumar Lall, Advocate Mr. Asadul Haque, Advocate Mr. Shivam Lath, Advocate ------ Order No. 21 / Dated : 23.01.2025. Heard, learned counsel for both the sides. 1. Both Miscellaneous Appeal and Cross Objection arising out of Award of compensation dated 04.09.2012 passed by learned District Judge-I-cum- Motor Vehicles Accident Claims Tribunal (MVACT), Pakur, in M.V.A.C.T. Case No. 78 of 2008 whereby and whereunder a compensation of Rs. 3,98,800/- has been awarded in favour of the claimant(s) to be paid within one month of the passing of Award, failing which, the claimant(s) is entitled for penal interest @9% per annum till the date of payment. 2. The Insurance Company has preferred appeal against the award of compensation dated 04.09.2012 making it liable to pay the compensation amount, whereas the claimants have preferred the aforesaid Cross Objection for enhancement of the compensation amount. 2 3. The facts of the case are not in dispute that the deceased [Parthak Mondal] aged about 26 years died in a motor vehicle accident while he was travelling on a dumper bearing registration no. BHY 4696 as the vehicle came in contact with live wire and the deceased was electrocuted in the said accident. 4. The Award of compensation has been assailed by the appellant-insurance company on the ground that as per the claim application, the deceased was working as a loading labour on the said truck, and met with an accident while the truck was returning after unloading the goods. The insurance policy which has been adduced into evidence (Ext. 8) does not cover the labour as it was confined to two persons including the driver. Therefore, he did not come under the insurance cover. 5. It is further argued that the deceased was unmarried at the time of accident and the living expense has been deducted as one-third which would have been 50% (half) as per the settled law. 6. Thirdly, the owner of this case did not appear and ex-parte proceeding was drawn. Since the owner did not appear, therefore, the relevant documents regarding driving licence and permit of the vehicle were not produced and, therefore, it could not be verified, as it has come in the investigation report (Ext. A). The onus was on the owner to have produced these documents and the owner has not appeared in this case. The documents could not be verified and, therefore, the insurance company cannot be saddled with liability in view of the ratio laid down by the Hon’ble Apex Court in the case reported in 2013 (3) SCC 208 [Pappu and Others Vs. Vinod Kumar Lamba and Anr.]. 7. Lastly, the interest has been awarded @ 9% per annum instead of 7.5% per annum which is not as per the law laid down in the case of Dharampal & Ors vs U. P. State Road Transport Corp. reported in 2008 (12) SCC 208. 8. Further, owner of the offending vehicle has not appeared in this appeal, although he was impleaded as Respondent no. 3 and notice was issued against him and finally substituted service of notice was made effected by paper publication and it was validly deemed to be served vide order dated 07.12.2017. Accordingly appeal is being heard ex parte against the owner of the vehicle. 9. As far as the plea that the deceased was serving as a labour and he was an employee of the truck, in question, cannot be accepted for the reason that it was a truck/ dumper engaged in transportation of the goods, and it is the definite case of the claimant(s) that he was travelling in the said truck and after the goods were unloaded, he was returning. There is no evidence led on behalf of the Insurance Company to show that he was an employee of respondent no. 3 and not the representative of the owner. 3 10. Under the circumstances, the view as taken by the learned Tribunal on this ground does not need any interference and the deceased being the representative of the owner of the goods being transported by the dumper, he will come within the meaning of third party and, therefore, there was no error so far third-party liability with respect to him is concerned. 11. With regard to the quantum of compensation and computation of dependency is concerned, there is a merit in the submission advanced on behalf of the appellant that he being the son and the claimants being the brother and brother’s wife, 1/3rd will not be the leaving expenses, but as per the settled law, ½ or 50% will be the living expense of the deceased. 12. Taking Rs 3,300/- as the monthly income, 26 years as the age of the deceased and 50% as the living expense of the deceased the final compensation amount will work out as under :- Annual income of the deceased taking Rs.3300/- as monthly income +40% as Future Prospect Rs.3300 x 12=Rs.39,600/- +Rs.39,600x 40%=Rs.55,440/- Annual Dependency after deducting as ½ Rs.27,720/- Multiplier taking 26 years as the age of the deceased at the time of the accident 17 Rs.27,720/- x 17=4,71,240/- Total Rs.4,71,240/- 13. On the point of interest also the admissible interest will be @7.5% per annum from the date of filing of the claim application till its realization. 14. Now, coming to the question of breach of the terms of the insurance policy on account of non-production of the permit and the driving licence. Initial onus of adducing evidence was on the owner of the vehicle to bring on record the permit of the vehicle which has not been discharged as the owner of the vehicle never appeared in the case. So was the case with the licence of the driver. In this view of matter the Insurance Company cannot be held liable to indemnify the owner for the breach of term of insurance policy. 15. The Insurance Company shall make the payment of the compensation amount of Rs.4,71,240/- within one month from the date of this order to the claimants along with interest as aforesaid and it shall have the right to recover the compensation amount from the owner of the vehicle. Thereafter the learned Tribunal shall disburse the same to the claimant(s) within two weeks. 16. The statutory amount deposited by the appellant- Insurance Company shall be remitted to the learned Tribunal so as to adjust the compensation amount to the 4 claimants. Miscellaneous Appeal is accordingly allowed. Pending I.A., if any, stands closed. Cross Objection No.24 of 2021 17. So far as the cross-objection preferred by the claimant(s) is concerned, it appears that the accident took place on 15.07.2000 and the compensation case was disposed of, by the judgment dated 04.09.2012, whereas the cross-objection has been filed on 11.06.2021 after lapse of about 9 years /an inordinate delay of 740 days for which no cogent explanation has been offered. 18. Accordingly, I do not find any merit in the instant Cross-Objection. 19. Under the circumstance, the cross-objection is barred by limitation and the same stands dismissed. (Gautam Kumar Choudhary, J.) Sandeep/ Pawan/-