Oriental Insurance Company vs Smt. Kalavati

Mr. Mansoor Ahmad Mir, C.J. (Oral)—Subject matter of this appeal is the judgment and award dated 7.12.2011, passed by the Motor Accident Claims Tribunal, Shimla, H.P. hereinafter referred to as "the Tribunal", for short, in MAC Petition No.56-S/2 of 2008, titled Smt. Kalavati and others v. The Oriental Insurance Company Ltd and others, whereby compensation to the tune of Rs.6,48,000/- along with interest @ 9% per annum with costs assessed at Rs.5,000/- came to be awarded in favour of the claimants and insurer was saddled with the liability, for short "the impugned award", on the grounds taken in the memo of appeal.

Claimants and owner-cum-driver have not questioned the impugned award on any ground, thus it has attained the finality, so far as it relates to them.

The insurer has questioned the impugned award on the grounds taken in the memo of appeal.

The claimant, by the medium of claim petition, under Section 166 of the Motor Vehicles Act, for short "the Act" had invoked the jurisdiction of the Tribunal for the grant of compensation as per the breaks-ups given in the memo of petition, which was resisted by the respondents and following issues came to be framed by the Tribunal.

Whether Sh. Partap Singh died due to rash and negligent driving of Maruti Car No. HP-37-9944 by Ishwar Dass? OPP.

If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP.

Whether the petition is not maintainable? OPR-1.

Whether the deceased Partap Singh was a gratuitous passenger of the car at the time of accident? OPR-1.

Whether the vehicle in question was being driven in contravention of the terms and conditions of the insurance policy? OPR-1.

Relief.

It appears that the insurer has not led any evidence to prove its defence. The Tribunal, after scanning the evidence, held that the claimants have proved that the driver Ishwar Dass has driven the Maruti Car No. HP-37-9944 rashly and negligently and caused the accident in which Partap Singh sustained the injuries and succumbed to the same.

Before I determine issue No. 2, I deem it proper to determine issues No. 1, 3, 4, and 5. It was for the insurer to prove issue No. 1, has not led any evidence, is upheld.

The insurer has to discharge the onus on issues No. 3 to 5, has failed to discharge the same. Even otherwise, there is no evidence on the record that the claim petition was not maintainable, the deceased was a gratuitous passenger and the owner has committed wilful breach, in terms of the Sections 147 and 149 of the Act. Thus, the findings returned on issues No. 3 to 5 are upheld.

The deceased was a Government employee, drawing salary to the tune of Rs.24,151/- per month as is evident from salary certificate Ext. PW3/B. The Tribunal has rightly made the assessment and awarded the amount, cannot be said to be either meager or excessive.

The Tribunal has awarded interest @ 9% per annum. However, interest was to be awarded at the rate of 7.5% per annum, for the following reasons.

It is a beaten law of the land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others v. Patricia Jean Mahajan and others, reported in (2002) 6 SCC 281; Satosh Devi v. National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others v. National Insurance Company Limited and others reported in (2012) 11 SCC 738; Smt. Savita v. Binder Singh & others, reported in 2014, AIR SCW 2053; Kalpanaraj & others v. Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari v. Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 SCC 433, and Mohinder Kaur and others v. Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 SCC 434, and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance Company v. Smt. Indiro and others, being the lead case, decided on 19.06.2015.

Accordingly, interest @7.5% per annum is awarded from the date of claim petition till realisation of the amount.

Viewed thus, the appeal is allowed and the impugned award is modified, as indicated herein above.

The Registry is directed to release the amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees'' cheque account, or by depositing the same in his bank account, after proper verification. Excess amount, if any, be refunded to the insurance company through payees'' cheque account.

Send down the record forthwith, after placing a copy of this judgment.