UNITED INDIA INSURANCE COMOANY LIMITED v. RAMANBHAI KACHRABHAI RAVAL
1995-11-23
ANIL R.DAVE, N.J.PANDYA
body1995
DigiLaw.ai
N. J. PANDYA, J. ( 1 ) AMENDMENT allowed. This appeal has been pressed on all counts by the Insurance Company which ordinarily it would not be permitted to. The Company, however, had taken precaution before the Motor Accident Claims tribunal (Aux) of Kheda at Nadiad in M. A. C. Petition No. 1237 of 1990 to obtain permission by filing application Exh. 41 and the learned Advocate, Mr. Parikh on behalf of the appellant was therefore, heard on all points. ( 2 ) THE first point raised was that the FIR indicates an intentional act on the part of the driver of the offending truck No. GRT 4728. However, copy of the FIR shown to us by the learned Advocate does not show any intentional act at all and the learned tribunal Judge, while dealing with this aspect under issue No. 1, has in our opinion, correctly dealt with the situation. A faint attempt was made to make out that the FIR relied on for the purpose is not one which was submitted by the auto-rickshaw driver. However, the Company itself is replying upon it its written statement Exh. 55 and after discussing that and other material on record the learned Judge has come to the conclusion that it is a negligent act and not an intentional one, as pleaded by the learned Advocate. L. A. Mr. Parikh appearing for the appellant drew our attention to para 7 of the judgment where the learned Tribunal Judge has in clear terms written that the FIR lodged by opponent No. 1 truck driver at mark 21/3 is not exhibited because the Insurance Company did not admit the same. However, it has chosen to rely on it and admit it in evidence because a certified copy has been produced. In our opinion, this course of action is correct. It is a report from the driver involved in that vehicular accident, of which, under Motor Vehicles Act, he is duty bound to make a report to the nearest police station. The FIR lodged by a driver, in such circumstances, assumes the character of statutory requirement. The certified copy therefore, can be exhibited. However, the submission of Mr. Parikh is that the FIR given by the rickshaw driver and which is exhibited on account of it having been admitted by the Insurance Co.
The FIR lodged by a driver, in such circumstances, assumes the character of statutory requirement. The certified copy therefore, can be exhibited. However, the submission of Mr. Parikh is that the FIR given by the rickshaw driver and which is exhibited on account of it having been admitted by the Insurance Co. , if read with the FIR produced by the truck driver, they would create a contradiction and the circumstances obtained from the FIR of the rickshaw driver would indicate that it was an intentional act. We are given a copy thereof, and we have gone through it and one can possibly argue that it discloses an intentional act; but a plain reading in our opinion, of that fir Exh. 51 does not indicate anywhere that it was an intentional act. It merely narrates the manner in which the incident happened. In our opinion, therefore, there is no contradiction between the two, much less, therefore, there is any possibility of it helping the company in making out its defence of the act being intentional. ( 3 ) L. A. Mr. Parikh next pointed out that at the time of the incident, the truck was used for a purpose other than the one for which it is permitted. It is a goods carrier and therefore, permit ordinarily would be for carriage of goods. From the record it is quite clear that at the time of the incident, the truck has carried a marriage party and as such, it being a goods truck, it would appear to be in contravention of the permit. However, the Insurance Company, inspite of examining as a witness a clerk from R. T. Office has rest content with getting produced only an extract of permit register. But the permit itself has not been produced. In a Full Bench decision of this Court it has held that when the Company raises a dispute pertaining to a permit issued by the RTO, the burden is on the company to discharge the same and it can be shown by producing the permit itself or a copy. That has not been done in the instant case. ( 4 ) THE next point raised by Mr. Parikh is that the victim being a third party or a pedestrian, at best, the Companys liability will be to the extent of Rs. 3 lakhs as per the policy.
That has not been done in the instant case. ( 4 ) THE next point raised by Mr. Parikh is that the victim being a third party or a pedestrian, at best, the Companys liability will be to the extent of Rs. 3 lakhs as per the policy. However, the policy has been issued in the month of october 1989, that means, in the 3rd month of coming into operation of the New motor Vehicle Act. The policy will, therefore, be governed by the statutory provision of this New Act. In our opinion, therefore, this defence will also not be available to the Company. ( 5 ) THERE is one more point so far as the Company is concerned. It is with regard to the transfer of vehicle. Opponent No. 2 was the original owner and opponent No. 2a is said to be the transferee. A clerk from the Insurance Co. one Bipinbahi Exh. 56 is examined on this point. He has not been cross-examined. We are shown a copy of his deposition. He merely says that the truck is registered in the name of opponent No. 2a and prior to that opponent No. 2 was the registered owner. He also gives the date of transfer which is 5-4-1990. That is the only short deposition given by him. The learned Judge felt that this is not enough of an evidence whereby the Company can claim to be exonerated from its liability under the terms of the contract of insurance because unless it is stated categorically by the insurance Co. by leading evidence through its witness or any other manner that the Company was never put to notice about its transfer, that it had never accepted the transfer, and that but for the incident, they would not have known about the transfer, the insurance Company cannot be exonerated from its liability. However, what the witness says is that the truck came to be transferred on 5- 4-1990 and beyond that he does not disclaim anything with regard to the liability. This is the reason possibly why he has not been cross-examined. This point also therefore, does not help the appellant. ( 6 ) THE last point urged is about the rate of interest at 15% awarded by the learned tribunal Judge. This according to the appellant is on higher side. L. A. Ms.
This is the reason possibly why he has not been cross-examined. This point also therefore, does not help the appellant. ( 6 ) THE last point urged is about the rate of interest at 15% awarded by the learned tribunal Judge. This according to the appellant is on higher side. L. A. Ms. Jani appearing for the other side has relied on a decision of this Court reported in Mohanbhai Gemabhai v. Balubhai Savjibhai 1993 (1) GLR 249 where interest given by the Tribunal at the rate of 6% has been adequately revised and placed at 15%. No doubt, as against that, 1994 (1) ACJ 1 has been relied on by Mr. Parikh to show that the Honble Supreme Court has also maintained the rate of interest at 12%. This had prompted L. A. Ms. Jani appearing for the other side to point out that the Tribunal at Nadiad in other group of matters has taken pains to hear all the Advocates appearing i. e. for claimants and for Insurance Company usually in Motor Accident Claim Petitions had expressed an opinion that 15% interest should be given as a matter of rule because as expressed in the said 1993 (1) GLR 249 , all the relevant factors including the rising prices, inflationary pressure and falling value of rupees are required to be considered. Mr. Parikh to some extent is right when he submits that whatever efforts that the learned Tribunal Judge might have put in for arriving at that figure, unless the reasons thereof are to be found in the award sought to be challenged, it cannot be considered at all. We agree with him. The award in order to be complete has to be self contained and whatever conclusions are arrived at there, reasons for the same should be found in the award itself. However, so far as the request for interfering with the said order of interest is concerned we are not inclined. We have gone through both these judgments and so far as the interest is concerned, there being no rate fixed by the statute other than that it is held to be within the realm of discretion of the concerned tribunal, we will not interfere with the same.
We have gone through both these judgments and so far as the interest is concerned, there being no rate fixed by the statute other than that it is held to be within the realm of discretion of the concerned tribunal, we will not interfere with the same. Apart from that on merit, if one reads the judgment it is clear that the promotional chances referred to on behalf of the claimants upto the stage of police sub-Inspector has been answered by the learned tribunal Judge on the ground that it depends upon the efficiency and many other factors. But the learned Judge has gone mainly by the income certificate Exh. 38 where the monthly income is shown to be Rs. 2170. 00 on the basis of monthly salary being Rs. 1000 plus DA 114%. The maximum of the scale has been taken into consideration and putting the figure of Rs. 3,000. 00 at the maximum scale, the learned judge has arrived at a mean figure of Rs. 2170. 00. This means that future increase in income on account of promotion or upward revision of pay, has not been taken into consideration, instead the existing scale has been considered and the amount of salary drawn at the time of incident, what could have been drawn on the date of the award and what likely amount he would have got at the end of the scale that has been taken into consideration. Under the circumstances, we are not inclined to interfere with the rate of interest awarded by the tribunal. Hence, this plea of interest is rejected. ( 7 ) THE amount of Rs. 25,000. 00 deposited by the appellant-Company in the High Court is ordered to be transmitted to the Tribunal at Nadiad. On receipt of the amount, the Tribunal shall disburse the amount as per its order. ( 8 ) IN the result, the appeal is rejected with no order as to costs. No order on C. A. .