National Insurance Co. Ltd vs Punam Dev And Ors

I. A. No. 8795 of 2017

The present Interlocutory Application has been filed for condonation of delay of 195 days in preferring the appeal.

Perused the I. A. Reasons explained in the Interlocutory Application is accepted.

In view of the reason discussed in the I. A., the delay in filing the present appeal is hereby condoned.

I. A. No. 8795 of 2017 stands allowed.

I. A. No. 2695 of 2018 is with regard to stay of execution proceeding. Since final appeal is being disposed of, no order is required to be passed under such Interlocutory Application.

Accordingly, I. A. No. 2695/2018 is also disposed of.

M. A. No. 649 of 2017

Heard, learned counsel for the appellant, Mr. Alok Lal, Advocate and learned counsel for the claimant, Mr. Rajiv Anand, Advocate.

The appeal has been preferred by National Insurance Co. Ltd Represented through its Divisional Manager against the award dated 31.01.2017 passed in Motor Vehicle Claim Case No. 87 of 2013 against the compensation to the tune of Rs.34,15,000/- with 8 % per annum interest from the date of filing of the claim petition. If the said amount has not paid within one month from this order, the insurance company will be liable to pay interest at the rate of 9% per annum on the compensation amount.

Learned counsel for the appellant has submitted that the tribunal though has framed issue no. V with regard to driving licence of driver of the offended vehicle Maruti Ertiga ZDI BS4 having Engine No. D13A2160545, Ch. No. MA3FLEB1S00186699 bearing registration no. JH 02Z-8436 at the time of accident but has given no finding while deciding the issue no. V.

Learned counsel for the appellant has submitted that the vehicle was not registered at the time of accident which was, in violation of terms and conditions of the insurance as such, the impugned award directing the National Insurance Company to pay the compensation is bad in law.

Learned counsel for the appellant has submitted that in the First Information Report, the name of the driver has been mentioned as Mintu Kumar whereas while filing the chargesheet in the criminal case bearing Mandu P. S. Case No. 276 of 2013 the police has mentioned the name of the driver as Shankar Prasad.

Learned counsel for the appellant has submitted that the entire award amount with interest has already been deposited before the learned tribunal pursuant to the order dated 26.03.2018 passed by co-ordinate Bench of this Court. Learned counsel for the appellant has placed reliance upon a judgment of Narinder Singh Vs. New India Assurance Company Ltd reported in (2014) 9 SCC 324.

Learned counsel for the claimant Mr. Rajiv Anand has submitted that Tribunal has framed the issue no. V, which is quoted hereunder:-

"whether the driver of the Maruti Car had valid driving licence at the time of accident?." The tribunal has decided the same at paragraph-11 of the judgment. The O.P. no. 1 has stated in written statement that at the time of accident Shankar Prasad had valid licence bearing licence no. 989 of 2003 issued from DTO, Koderma to drive LMV up to 09.11.2015. The accident took place on 21.07.2013 at 3.30 A.M. The insurance company being O.P. No.2 though has taken plea that driver was not having valid licence at that time but onus to prove such fact has not been discharged by the Insurance company by adducing evidence.

Under the aforesaid circumstance, this court may not consider the same as valid ground to assail the impugned award. So far the second contention of change in name of the driver in the chargesheet is concerned, this has nothing to do with the present case as police after investigation has rightly chargesheeted the accused person i.e. driver of the offending vehicle and on the basis of that he has faced criminal trial. With respect to third contention, which has been raised by counsel for the appellant that vehicle was not having any registration number, learned counsel for the respondents has submitted that while insuring a vehicle, the insurance company ought to have mentioned the registration number of the vehicle and if the registration number is not there then temporary registration number ought to have been there on the vehicle as when any vehicle came out of showroom a temporary number is allotted. Apart from this, the insurance company while insuring such vehicle ought to have mentioned the registration number of the vehicle on the insurance paper, as such, such vexatious ground is not sustainable in the eyes of law.

Learned counsel for the respondents has submitted that fact which has not been pleaded before the tribunal, cannot be raised at the appellate stage except the question of law.

Learned counsel for the respondent has submitted that the entire amount though has been deposited by the insurance company before the learned tribunal but the same has not been released in favour of the claimant and as per the award the claimant is entitled for the interest @ 9 % per annum on the compensation amount of Rs. 34,15,000/- from the date of filing of the claim petition till date of payment as such, some more amount has to be paid by the insurance company.

Considering the rival submissions of the parties, it appears that insurance company vide policy no.35101031136133175928 has insured the vehicle Maruti Ertiga ZDI BS4 having Engine No. D13A2160545, Ch. No. MA3FLEB1S00186699 bearing registration no. JH 02Z-8436 for the period from 18.05.2013 to 17.05.2014. The unfortunate accident took place on 21.07.2013 at 3.30 A.M. Once a insurance company has insured a vehicle, such plea is not sustainable. From perusal of the document brought on record as exhibits, nowhere it has been alleged by the insurance company doubting the death of the deceased or accident of the offended vehicle. The insurance company has never raised such issue before the learned tribunal as such, the appellant, i.e. insurance company is not authorized to raise such question of fact, at the appellate stage.

Accordingly, this court is of the opinion that the miscellaneous appeal preferred by the insurance company is devoid of merit, thus the same is hereby dismissed.

The claim amount along with interest has been deposited in the tribunal in compliance of order dated 26.03.2018 as such, the same may be released in favour of the claimants. So far the interest @ 9% per annum is concerned, the tribunal as well as the insurance company shall calculate the same and shall pay to the claimants by issuing the Bank Draft / Cheque in the name of the claimants within a period of two months after deducting Rs.25,000/-, which has been deposited as statutory amount before the Registrar General of this Court for preferring the appeal and the said amount of Rs. 25,000/- be remitted to the tribunal to pay the same to the claimants. The insurance company is directed to issue a fresh cheque for the said amount.