Oriental Insurance Company Limited vs Shishna Devi

Mansoor Ahmad Mir, C.J. (Oral) Subject matter of this appeal is judgment and award, dated 25th February, 2011, made by the Motor Accident Claims Tribunal (I), Mandi (for short "the Tribunal") in Claim Petition No. 50/2000, titled as Smt. Shishna Devi and others v. The Oriental Insurance Co. Ltd. And others, whereby compensation to the tune of Rs 7,60,000/- with interest @ 9% per annum from the date of petition till its realisation came to be awarded in favour of the claimants and against the insurer (for short "the impugned award").

The claimants, owner-insured and driver of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.

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

The claimants invoked the jurisdiction of the Tribunal for grant of compensation, as per the break-ups given in the claim petition, on the ground that they became the victims of the vehicular accident, which was caused by the driver, namely Shri Prem Singh, while driving Tempo Trax (Jeep/Gypsy), bearing registration No. HP-32A-0797, rashly and negligently on 21st February, 2009, at about 8.15 P.M., at place Jahal, in which deceased-Lekh Raj sustained injuries and succumbed to the injuries.

The respondents in the claim petition resisted the same on the grounds taken in the respective memo of objections.

On the pleadings of the parties, following issues came to be framed by the Tribunal on 10th August, 2009:

"1. Whether on 21.2.2009 at about 8.15 p.m. at village Jahal, respondent No. 3 was driving Tampo Trax jeep No. HP- 32 A-0797 rashly and negligently and as such, caused death of Sh. Lekh Raj? OPP

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

Whether the driver of the Tampo Trax jeep No. HP-32A-0797 was not holding a valid and effective driving licence to drive the Tampo Trax jeep at the time of accident? OPR

Whether the deceased was travelling in the Tampo Trax jeep as a gratuitous passenger? OPR

Relief."

The claimants have led evidence. The ownerinsured and the driver of the offending vehicle themselves stepped into the witness box. The insurer has not led any evidence. Thus, the evidence led by the claimants has remained unrebutted so far it relates to the insurer.

Issue No. 1:

The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved that driver-Prem Singh, while driving Tempo Trax (Jeep/Gypsy), bearing registration No. HP-32A-0797, rashly and negligently on 21st February, 2009, at place Jahal, caused the accident, in which deceased-Lekh Raj sustained injuries and succumbed to the injuries. There is no dispute about the said findings. Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld.

Before dealing with issue No. 2, I deem it proper to determine issues No. 3 and 4.

Issue No. 3:

It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence to drive the same, has not led any evidence, thus, has failed to discharge the onus. However, I have gone through the record. The driving licence is on the record as Ext. RW-2/A, the perusal of which does disclose that the driver of the offending vehicle was having a valid and effective driving licence to drive the same, which is a ''LMV''. Accordingly, the findings returned by the Tribunal on issue No. 3 are upheld.

Issue No. 4:

Learned counsel for the appellant-insurer vehemently argued that the deceased was a gratuitous passenger, is devoid of any force for the reason that the insurer has not led any evidence before the Tribunal to prove the said issue, thus, it cannot lie in the mouth of the appellant-insurer that the deceased was a gratuitous passenger.

Even otherwise, the passenger carrying capacity of the offending vehicle as ''9+1'', as is evident from the insurance policy, Ext. RW-1/B. The Form of Certificate of Registration is also on the record as Ext. RW-1/A, the perusal of which does disclose that the seating capacity of the offending vehicle was ''10''. Viewed thus, the findings returned by the Tribunal on issue No. 4 are also upheld.

Issue No. 2:

The amount awarded appears to be adequate, cannot be said to be excessive or inadequate. But, the Tribunal has fallen in an error in awarding interest at the rate of 9% per annum, which was to be awarded as per the prevailing rates.

It is 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; Santosh 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 and others, reported in 2014 AIR SCW 2053; Kalpanaraj and 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 FAO No. 256 of 2010, titled as Oriental Insurance Company v. Smt. Indiro and others, being the lead case, decided on 19.06.2015.

Having said so, I deem it proper to reduce the rate of interest from 9% per annum to 7.5% per annum from the date of filing of the claim petition till its realization.

Having glance of the above discussions, the impugned award is modified and the appeal is disposed of, as indicated herein above.

Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee''s account cheque or by depositing the same in their respective bank accounts.

Excess amount, if any, be released in favour of the appellant-insurer through payee''s account cheque.

Send down the record after placing copy of the judgment on the Tribunal''s file.