Oriental Insurance Company Ltd. vs Champa Mangre

Pritinker Diwaker, J.

With the consent of the parties, the matter is heard finally. This appeal arises out of the award dated 7.3.2013 passed by the Motor Accident Claims Tribunal, Kabirdham (Kawardha) (in short "the Tribunal") in Claim Case No. 78/11 whereby the Tribunal has awarded compensation to the tune of Rs. 16,94,600/- in favour of the claimants as against the amount of Rs. 42,29,136/- claimed by them.

Claimants/respondents No. 1 to 5 herein are widow, three minor children and mother of deceased Kushal Das, who died in a road accident on 20.8.2011.

According to the claimants, on the date of accident when Kushal Das was riding his motorcycle bearing registration No. C.G.O9-D/O290 along With his colleague Rakesh as pillion rider. The said motorcycle was dashed by a truck bearing registration No. M.P. 20-G/8854 (hereinafter referred to as "offending vehicle") as a result of which both of them-Kushal Das and Rakesh-died on the spot itself. At the time of death, Kushal Das was 35 years of age, was working as Shikshakarmi Grade-III and drawing salary of Rs. 7,776/- p.m. A claim petition was filed by the claimants with the aforesaid pleadings for grant of compensation of Rs. 42,29,136/- against the death of Kushal Das under various heads.

Learned Tribunal by the impugned award granted a total compensation of Rs. 16,94,600/- along with interest @ 6% per annum in favour of the claimants, fastening liability upon the appellant/insurance company, jointly and severely with respondents No. 6 & 7 herein/driver & owner of the offending vehicle. Learned Tribunal has also awarded penal interest @ 8% p.a. if the award is not satisfied within two months.

It is this award which has been challenged by the appellant/insurance company in the present appeal mainly on the following grounds:

(i) that the Tribunal has erred in law in awarding penal interest @ 8% p.a. in case there is default in payment of compensation within the stipulated period;

(ii) that the Tribunal has also erred in law in holding that there was no contributory negligence on the part of the deceased.

On the other hand, learned counsel appearing for the respondents/claimants has supported the impugned award.

I have heard learned counsel for the parties and perused the material on record.

So far as the first point raised by the appellant/insurance company that the Tribunal could not have awarded penal interest is concerned, this issue is no longer res integra as the same has already been decided by the Apex Court in the matter of National Insurance Co. Ltd. Vs. Keshav Bahadur and Others, and by this Court vide judgment dated 30.10.2013 delivered in M.A. (C) No. 514/08 in the case of The Oriental Insurance Co. Ltd. Vs. Smt. Sukwaro Bai Dwangan and others. Thus, in view of the above settled legal position, the imposition of penal interest, as has been done by the Tribunal, can not be allowed to stand and the award impugned is liable to be modified to that extent.

As regards contributory negligence on the part of the deceased, it is a settled principle of law that the onus of proof regarding contributory negligence is on the party who alleges the same. The insurance company taking a plea of contributory negligence on the part of the victim/deceased must lead evidence with regard thereto and in absence thereof, such plea can not be accepted. The insurance company must state specifically that there was some casual connection of the deceased with the damage suffered by him to hold that the conduct of the deceased amounted to contributory negligence. Similarly, there had to be some evidence showing absence of reasonable care on the part of the deceased for his own safety which contributed to the damage. However, in the present case, no such evidence has been adduced by the insurance company to substantiate its contention that there was contributory negligence on the part of the deceased. In these circumstances, the Tribunal was fully justified in holding that there was no contributory negligence on the part of the deceased. In the result, appeal is allowed in part. The rate of interest i.e. 6% per annum as awarded by the Tribunal shall alone be applicable till payment of compensation amount, without the stipulation for higher rate of penal interest being enforced in the manner directed by the Tribunal. The impugned award stands modified to the above extent.