Oriental Insurance Company Ltd vs Nidha Barnwal And Ors

Heard learned counsel for the appellant.

The appellant-the Oriental Insurance Co. Ltd. has preferred this Misc. Appeal against the award dated 12.04.2017 passed by learned District Judge-cum-Motor Vehicle Accident Claims Tribunal II, Koderma, in Claim Case No.40 of 2010 to the tune of Rs.38,85,080/- with simple interest @6% per annum on the awarded amount from the date of filing of the claim petition i.e. 19.08.2010 till its realization, be payable within a period of 30 days from the order, otherwise, additional future interest @ 3% per annum (simple) will be payable to the claimants.

Learned counsel for the appellant-Oriental Insurance Company Ltd. has assailed the impugned Award on the ground that the FIR was lodged against the vehicle, truck bearing Registration No.JH02F 3862, but the Police after investigation submitted charge-sheet against the Vehicle bearing Registration No.JH-12B-2791 insured before the appellant, as such, the Police report is not genuine and because of concoction, the involvement of Truck bearing Registration No.JH-12B-2791 insured before the appellant-Insurance Company has been taken into account as such, the learned Tribunal wrongly saddled the Insurance Company with the compensation amount.

Learned counsel for the appellant-Oriental Insurance Company Ltd. has assailed the impugned Award on the further ground that the father of the deceased has a business and because of death of his son, he has not suffered any loss, as such, father of the deceased cannot be held to be one of the dependents which has been wrongly given by the learned Tribunal, as such, if the number of dependents is reduced, then the amount shall be deducted more under personal and living expenses of the deceased.

Learned counsel for the appellant-Oriental Insurance Company Ltd. has assailed the impugned Award on the further ground that 3% penal interest is unknown to the law, as such, the same may also be set aside.

Learned counsel for the appellant-Oriental Insurance Company Ltd. has submitted that there is delay of 87 days in preferring the appeal and for condonation of same, I.A. No.8231 of 2017 has been preferred and the reason has been assigned in Paras 2, 3 and 4 of the Interlocutory Application, as such, notice may be issued as the said delay which has occurred in processing the file.

Heard, learned counsel for the appellant- Oriental Insurance Company Ltd. and perused the impugned award. It appears that on the basis of fardbeyan of Choukidar, Babun Gope, police registered Koderma (Telaiya) P.S. Case No.158 of 2010 dated 25.04.2010 under Sections 279/304A of the Indian Penal Code against the Driver of Scorpio bearing Registration No.JH-12C-1575. It has been alleged in the First Information Report that on the fateful day i.e. 24.04.2010, the said Scorpio was coming from Ranchi to Jhumri Telaiya and as soon as crossed the Over-bridge, slowed down speed as because there was a speed breaker and a truck bearing Registration No.JH-12B-2791 being driven by its driver in a very rash and negligent manner dashed the Scorpio vehicle causing fatal injury. The deceased being 26 years of age, was engaged in his business of stone mining and stone crushing known as M/s Durga Stone Chips situated at Markacho, Koderma having annual income of Rs.3,31,718/-.

Learned counsel for the appellant-Insurance Company has placed the photocopy of the First Information Report showing that initially the FIR was lodged against the Truck bearing Registration No.JH-02F-3862, but charge-sheet was submitted against the truck bearing Registration No.JH-12B-2791.

Learned counsel for the appellant-Insurance Company has failed to establish before this Court that why this point was not agitated before the court below with regard to the allegation of concoction by the Police and if the same is not agitated before the learned Tribunal, a Court of appeal sitting in Miscellaneous Jurisdiction under the Motor Vehicle Act, cannot decide the same, as the same will amount to interference in the Police case pending before the competent Magistrate, as such, issue which has been raised by the learned counsel for the appellant before this Court regarding change in the registration number of truck is of no help to the appellant. Apart from this the appellant-Insurance Company has not brought any evidence either before the learned Tribunal or before this Court that the vehicle which was released by the Magistrate and the vehicle which was examined by the motor vehicle Inspector are different rather those documents itself shows that truck bearing Registration No.JH-12B-2791 has been released by the Court on the basis of the examination report of the Motor vehicle inspector.

Learned counsel for the appellant-Insurance Company has taken second ground as father of the deceased has his own income, as such, he is not dependent upon the deceased so as to prefer the claim application.

This submission of the learned counsel for the appellant is not tenable in the eyes of law as Section 166 of the Motor Vehicles Act envisages any application for compensation arising out of accident of nature specified in sub-section (1) of Section 165 may be made :-

"(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident by all or any of the legal representatives of the deceased; or

(d) by any agent, duly authorized by the person insured or all or by any legal representative of the deceased; as the case may be.

As such, the ground taken by the learned counsel for the appellant is not sustainable in the eyes of law, as father is also a legal representative and he has rightly preferred claim application along with the other claimants.

So far the 3rd point with regard to the penal interest is concerned, provision of penal interest is not in the Motor Vehicles Act, but the learned Tribunal has granted interest @6% per annum from the date of fling of the claim application till its realization with a direction to the learned Tribunal to pay within 30 days, failing which, additional interest @ 3% per annum (simple) shall be payable to the claimants.

This Court perused the provisions of Section 171 of the Motor Vehicles Act which reads as follows:-

Award of interest where any claim is allowed- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."

Further Hon'ble Apex Court in the case of Dharmpal and Sons vs. UP State Road Transport Corporation, reported in 2008(4) JCR 79 SC it has held that the interest ought to have been on the prevalent bank rate of interest on the date of award or interest @ 7.5% from the date of filing of the claim application till its realization. Here the learned Tribunal has awarded 6% interest from the date of filing of the claim application which was filed in the year 2010 and the Award was passed after 7 years on 12.04.2017 and if the Award is not satisfied within 30 days, the same shall be charged with additional simple interest @ 3%.

Considering the same, this Court is not inclined to interfere though if the same is calculated on the basis of 7.5% from the date of filing of the claim application, the amount may go up. As such, since the appeal has not been preferred by the claimants in view of the judgment passed by the Hon'ble Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & another (2011) 14 SCC 639 para 8 and there will be marginal change, as such, the plea taken by the learned counsel for the appellant is hereby rejected, as interest @ 7.5% from the date of filing of the claim application will give more amount to the claimants.

So far the interest is concerned, the learned Tribunal has rightly observed that the same shall be subject to order passed by Appellate or revisional authority and this Court is not interfering with the same having a consistent view of interest @ 7.5% from the date of filing of the claim application.

So for liability fastened upon the Insurance Company is concerned, since the learned Tribunal has considered this aspect of the matter while deciding issue Nos.iv and viii in Para-15 at page 14 of the impugned judgment where by it has been held that owner of the offending vehicle has violated the terms and conditions of the Insurance Policy, as such, the appellant-Insurance Company is not liable to indemnify the award. However, as per settled law, the appellant- Insurance Company initially shall pay the impugned award which can be legally recoverable from the owner of the offending vehicle in view of the judgment passed by the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd vs. Nanjappan and Others, reported in (2004) 13 SCC 224, as such, the issue is accordingly decided.

The right to recovery given by the learned Tribunal to the Insurance Company remains intact and as such, no interference is made by this Court.

Accordingly, awarded amount to the tune of Rs.38,85,080/- shall be paid to the claimants in terms of the award by the learned Tribunal with simple interest from the date of filing of the claim application till the date of payment in terms of the order passed by the learned Tribunal.

The instant appeal stands dismissed.

Since the main appeal has already been dismissed, it would not be proper to pass any order so far the limitation petition is concerned.

I.A. No.8231 of 2017 fled for limitation stands closed.

Registrar General of this Court is directed to refund the statutory amount to the appellant within a period of four weeks from the date of filing of requisition before this Court by the learned counsel for the appellant.