National Insurance Co. Ltd vs Nisha Jain And Ors

I.A. No.10358 of 2018

I.A. No.10358 of 2018 has been filed under Section 5 of the Limitation Act for condonation of delay of 48 days in preferring the instant appeal.

Having heard learned counsel for the parties and considered the statements made in the Interlocutory Application, delay of 48 days in preferring the

instant appeal is hereby condoned.

I.A. No.10358 of 2018 stands disposed of.

M.A. No. 695 of 2018

Heard, learned counsel for the appellant and learned counsel for the respondents.

National Insurance Co. Ltd. is the appellant before this Court.

The instant appeal has been preferred by the appellant- Insurance Company against the award dated 30.06.2018 passed by learned Presiding Officer,

M.V.A.C.T., Hazaribag in Motor Accident Claim Case No.244 of 2010, whereby the claimants namely, Nisha Jain, Chanchal Jain, Rani Komal Jain,

Sheetal Jain and Payal Jain have been awarded compensation to the tune of Rs.50,23,156/-along with simple interest @ 7.5% per annum from the

date of settlement of issue i.e. 05.08.2011 till 30 days from this Award (30.06.2018), failing which the interest rate would be 9% per annum thereafter

(after 30 days from the order) till the date of final realization.

Learned counsel for the appellant- Insurance Company has submitted that the impugned award is bad in law as the learned Tribunal though has

framed the issue with regard to contributory negligence of the vehicle in which deceased was travelling, but while deciding the issue no.(v), the same

was not taken note by the learned Tribunal. Learned counsel for the appellant has thus, submitted that contributory negligence has been dealt but as

per the evidence brought on record, it appears that the deceased- Nirmal Kumar Jain was travelling in a Scorpio bearing registration no.JH-02G-1851

which hit a standing pickup van bearing registration no.BR-14G-9492. Since the deceased was neither the owner nor the driver of the Scorpio, as

such, nothing can be deducted as the contributory negligence on the part of the deceased. From the fact on record, it appears that the deceased was a

third party and he succumbed to the injury because of the accident of the Scorpio which was insured before the appellant-Insurance Company, as

such, the issue of contributory negligence has not rightly been taken note of by the learned Tribunal for reducing the amount of compensation in favour

of the claimants. Learned counsel for the appellant has further submitted that even after service of notice before the learned Tribunal, the owner of

the Scorpio has not appeared as such, the case was proceeded ex-parte vide order dated 23.12.2010, as such, the appellant-Insurance Company may

be given right to recover from the owner, as the owner has not produced any document before the learned Tribunal.

Learned counsel for the appellant has further argued that in a private vehicle, the deceased was a fare paying passenger but no positive evidence has

been brought on record to establish that deceased was a fare paying passenger rather a passenger riding the vehicle which belongs to his friend, as

such, in absence of any evidence brought on record by the Insurance Company, such plea is not tenable in the eyes of law.

After hearing the learned counsel for the parties and from materials brought on record, it appears that an ex-parte proceeding proceeded against the

owner of the vehicle. No positive evidence has been brought on record by the Insurance Company to shift the burden upon the owner of the vehicle

by filing any petition under Rule 235 of the MV Act or any document in consonance with the judgment passed by the Hon'ble Apex Court in the case

of Amrit Pal Singh and Anr. Vs. TATA AIG General Insurance Company Limited and Ors., reported in (2018) 7 SCC 558.

From perusal of the the records, it appears that in absence of any positive evidence adduced by the Insurance Company such plea cannot be allowed

to raise at the appellate stage. The Insurance Company has failed to substantiate such argument showing any steps taken by the Insurance Company

before the learned Trbunal. Accordingly, the plea of recovery from the owner because of violation of Section 149(2) MV Act is also decided against

the appellant.

So far the interest upon award is concerned which is 9% penal interest after 30 days of the award though this Court finds this part of the order

contrary to the ratio laid down by the Hon'ble Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation, 2008 (4) JCR

79 SC where 7.5% simple interest has been awarded from the date of filing of the application or the interest ought to have been on the basis of

prevailing bank rate interest.

Since the interest @ 7.5% has been granted from the date of settlement of the issue and not from the date of filing of the application and interest @

9% has been granted as a penal interest after 30 days of the award, if compensation is not paid within 30 days of the award. On cojointly considering

all these aspects of the matter, the interest rate shall remain as near about @ 7.5% from the date of filing of the application.

Under the aforesaid circumstances, since the interest part is not going to make substantial change in the amount, it would not be proper to this Court to

interfere with the impugned award. Accordingly, this plea is also rejected for the present, but it is made clear that interest ought to have been @ 7.5%

per annum from the date of filing in view of the judgment passed by the Dharmpal (Supra) though the learned Tribunal has right to differ but for that,

the learned Tribunal has to make specific reason, as to why not from the date of filing of application and why from the date of settlement or date of

closing of the evidence or date of final adjudication of the award. Since no such, reason has been mentioned, as such, this Court is also not interfering

with the same.

In the result, the instant appeal is hereby dismissed as no irregularity or illegality or perversity is found in the impugned award.

I.A. No. 6477 of 2018 filed for stay is accordingly closed as the appeal has been adjudicated finally.

As the instant appeal is dismissed as such, the statutory amount deposited by the appellant before this Court at the time of preferring the appeal shall

be refund/returned from the date of filing of the requisition by the counsel for the appellant.

Needless to say that the matter is of the year, 2010 and more than nine years have lapsed. The benefit of socio beneficial legislation has not been

granted to the claimants, as such, the Insurance Company is directed to satisfy the award in terms of the order passed by the learned Tribunal within a

period of 90 days from today, failing which the learned Tribunal/Executing court is directed to proceed in accordance with law.