National Insurance Co. Ltd vs Asik Khan And Ors

Heard, learned counsel for the appellant.

Appellant- National Insurance Co. Ltd. has preferred this appeal against the award dated 29.04.2019 passed by the learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No.28 of 2016, whereby the claimants have been awarded compensation to the tune of Rs.8,76,400/- out of which Rs.50,000/- has already been paid under Section 140 of the M.V. Act. As such, the due amount awarded by the learned Tribunal to the claimants is Rs.8,26,400/- along with interest @ 9% per annum from the date of admission of the claim application i.e. 30.06.2016 till its realization.

Learned counsel for the appellant has submitted that date of institution of the claim application as well as date of admission of the claim application are the same, as such, no prejudice has been caused to the claimants-respondents though the interest has been awarded on the higher side contrary to the judgment passed by Hon'ble Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, 2008 (4) JCR 79 SC , where the Hon'ble Apex Court has held that interest ought to have been given at the prevalent rate of interest of the bank on the date of award or simple interest @ 7.5% from the date of filing of the claim application.

Learned counsel for the appellant has further submitted that the learned Tribunal has considered income of the deceased as Rs.200/- per day, in absence of any document, considering him as a labourer. The claimants-respondents have not adduced any document, such as, educational certificate, appointment letter, salary slip or any document in support of that to establish that the deceased had a fixed salary and was employed in some institution, as such, the learned Tribunal has wrongly considered the Future Prospect as 40% while computing the compensation.

Learned counsel for the appellant-Insurance Company has further submitted that the owner/respondent No.6 has not put his appearance before the learned Tribunal inspite of due service of notice in the case, therefore, the case was fixed ex-parte vide order dated 03.07.2017, as such, the vehicular document could not be brought on record to examine whether the terms and conditions of the Insurance Policy has been violated by the insured or not, so as to shift the liability upon the owner or at least get a right of recovery from the owner by placing reliance upon the case of Pappu and others v. Vinod Kumar Lamba and another, reported in AIR 2018 SC 592.

Learned counsel for the appellant-Insurance Company has further submitted that the appeal has been preferred in time, as such, notice may be issued to the respondents.

It appears that while deciding issue No.5, the learned Tribunal has given a finding that the appellant-Insurance Company has failed to adduce any evidence to prove these facts and only on the basis of his oral submission it cannot be proved that the driver of the offending vehicle was not holding driving licence to drive the said vehicle. Neither the investigation report of the Insurance Company has been produced on record nor examined its investigator to prove the facts about violation of the terms and conditions of the Insurance Policy by the insured of the offending vehicle and rightly held that insurer of the offending vehicle has failed to prove the facts about violation of the terms and conditions of the Insurance Company by the insured i.e. owner of the offending vehicle. Thus decided issue in favour of the owner of the offending vehicle though he has not appeared before the learned Tribunal.

Under the aforesaid circumstances, notice is required to be issued against the respondents including the owner of the offending vehicle, as the learned Tribunal has given a finding in favour of the owner without any evidence.

Let notice be issued to the claimants/respondent Nos.1 to 5, i.e. [1. Asik Khan, S/o Late Mahboob Khan, 2. Musarrat Jahan, W/o Asik Khan, 3. Baby Tabassum D/o Asik Khan, 4. Nehan Parveen, D/o Asik Khan, 5. Saniya Parween, D/o Asik Khan, All residing at Near Madarsa Gali, Bariatu Basti, P.S.- Bariatu, P.O.- Bariatu, District- Ranchi (Jharkhand)] as well as owner of the offending vehicle (respondent No.6) Bijendra Kumar Yadav, S/o Mahant Yadav, R/o 4B, Lalbanya Garde Apartment, Behind Surendranath Centenary School, Deepatoli, P.O. & P.S.- Namkum, District- Ranchi (Jharkhand) (Owner of the Tata Indigo Car Reg. No.JH-01BK-7649 under both process i.e. under registered cover with A/D as well as under ordinary process for which requisites etc. must be filed by 31.01.2020.

Learned counsel for the appellant has filed I.A. No.10 of 2020 for stay of the Execution Case No.80 of 2019 before the court of learned Motor Vehicle Accident Claim Tribunal, Ranchi.

Under the aforesaid circumstances, appellant- National Insurance Co. Ltd. is directed to deposit a sum of Rs.5,00,000/- before the learned Tribunal within a period of 60 days from today. If the said amount is deposited before the learned Executing Court, the Executing Court shall not proceed in Execution Case No.80 of 2019, so far the appellant- National Insurance Co. Ltd.. is concerned and after due notice and proper verification the same shall be disbursed to the claimants-respondents after taking an affidavit before the learned Tribunal that claimants have already put their appearance in the present Miscellaneous Appeal i.e. M.A. No.342 of 2019 before the High Court.

If the appellant-National Insurance Co. Ltd. fails to deposit the aforesaid amount, the Executing Court is directed to proceed in accordance with law.

Accordingly, I.A. No.10 of 2020 is disposed of.

Put up this case after receipt of service of notice.