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Madhya Pradesh High Court · body

1997 DIGILAW 599 (MP)

Hastimal Jain v. Harikishan

1997-09-12

RAJIV GUPTA, S.K.DUBEY

body1997
ORDER Dube, J. -- 1. The owner of Bus No. MBU-6814 has filed the aforesaid appeals under section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') against the common award dated 6.1.95 in M.C.C. No. 8/90, M.C,C. No. 5/90, M.C.C. No. 14/91 and M.C.C. No. 15/91 passed by the First Additional Motor Accidents Claims Tribunal, Sehore. 2. On the fateful day of 23.10.90, Smt. Pushpa Bai, Phool Singh, Kumar Singh and Harikishan were travelling in Bus No. MBU-6814, owned by the appellant, driven by driver Kasam Khan and insured with respondent No.3. The bus turned turtle near Kanha Khedi Ghati, at a distance of about 20 km. away from Asta, as a result of which Pushpa Bai and Phool Singh died on the spot and other two passengers Kumar Singh and Harikishan received severe multiple injuries. 3. Legal representative of the deceased Phool Singh claimed compensation of Rs. 8,49,000/- in Claim Case M.C.C. No. 8/90, legal representatives of Smt. Pushpa Bai claimed compensation of Rs. 12,50,000/- in M.C.C. No. 5/91, the injured Kumar Singh claimed compensation of Rs. 4,50,000 in M.C.C. No. 14/91 and the injured Harikishan claimed compensation of Rs. 4,00,000/- in M.C.C. No. 15/91. The insurance company only contested all the claims denying its liability, taking specific plea that the driver of the vehicle was driving the vehicle in breach of the terms of insurance policy Ex. 0-1, as he was not duly licensed. 4. After appreciation of the evidence adduced, the Tribunal held that the accident was the result of rash and negligent driving of the driver of the bus. The Tribunal, after determining the compensation in each case, awarded Rs.3,12,000/- in M.C.C. No. 8/90, in M.C.C. No. 5/91 Rs. 1,51,000/-, in M.C.C. No. 14/91 Rs. 94,800/- and in M.C.C. No. 15/91 Rs. 30,000/-. The Tribunal in addition to compensation so awarded, awarded simple interest at the rate of 12 per cent per annum from the date of application till realisation. 5. The insurance company was absolved from its liability, as Issue No.1 was found proved in favour of the insurance company. The Tribunal held that the driver of the bus was not duly licensed, as the photocopy of the driving licence was not genuine and fake, hence, the award was passed against owner and driver. 6. 5. The insurance company was absolved from its liability, as Issue No.1 was found proved in favour of the insurance company. The Tribunal held that the driver of the bus was not duly licensed, as the photocopy of the driving licence was not genuine and fake, hence, the award was passed against owner and driver. 6. Aggrieved of the award, the aforesaid four appeals have been filed along with an application under Order 41 Rule 27 CPC stating that the driver Kasam Khan was possessed of valid driving licence. The licence was issued to him on 25.7.87, valid upto 24.7.92. He was authorised to drive the transport vehicle w.e.f 5.5.90. Licence could not be produced before the Tribunal as the appellant and driver were proceeded ex parte. Therefore, the appellant be permitted to produce the said licence as an additional evidence. 7. Shri Sanjay Agrawal, learned counsel for New India Insurance Company, after seeking instructions from the insurance company, which verified the genuineance of the licence issued to Kasam Khan by the R.T.O., Ujjain, admitted that the licence issued is genuine and not fake. In view of this, the application under Order 41 Rule 27 CPC is allowed and the licence issued to Kasam Khan, driver, is taken on record as additional evidence. 8. Learned counsel for the insurance company submitted that had the licence been produced at the appropriate stage before the Tribunal with the claim form, whereto other licence was annexed, which was found to be fake, or even before the Tribunal at proper stage, the insurer could have avoided the interest liability by settling the claim or after the award by depositing the same in due time. The interest liability has been increased because of the owner who absented himself and allowed the cases to proceed ex-parte against him before the Tribunal. Therefore, the insurance company be not burdened with payment of interest and it be directed to be paid by the owner and driver. A decision of Punjab & Haryana High Court in Joginder Singh v. Oriental Fire & General Insurance Co. Ltd. and another (1987 ACJ 695) was cited. 9. In all the aforesaid appeals, the appellant-owner placed on record a duplicate driving licence of the truck driver with a view to show that the driver was duly licensed. A decision of Punjab & Haryana High Court in Joginder Singh v. Oriental Fire & General Insurance Co. Ltd. and another (1987 ACJ 695) was cited. 9. In all the aforesaid appeals, the appellant-owner placed on record a duplicate driving licence of the truck driver with a view to show that the driver was duly licensed. After verification from R.T.O., Ujjain, about the genuineness of the driving licence, learned counsel for the insurance company has admitted that at the time of accident, the driver of the truck was holding a valid driving licence. Therefore, there is no escape for the insurance company from its liability to pay compensation awarded by the Tribunal. 10. Coming to award of interest, the insurance company in its written statement took a specific defence that the driver of the truck at the time of accident was not holding a valid licence. An issue was raised. The insurance company proved the issue. The owner and driver did not appear in witness-box. After the award, appellant-owner filed an application under Order 9 Rule 13 CPC for setting aside ex-parte common award. It is only by means of application under Order 41 Rule 27 CPC for additional evidence, the driving licence has been produced. The delay is undoubtedly for non-production of driving licence on the part of the owner and driver. Therefore, it would be inequitable to burden the insurance company to pay the interest for the total period spent in litigation. However, we are not inclined to accept the submission on behalf of insurance company based on Joginder Singh's case (supra) that the whole liability to pay interest would be that of owner and driver. Had the licence been produced before the Tribunal, the insurance company would have satisfied the award as Judgment-debtor under section 149 (1) of the Act. Therefore, as to inter se liability of payment of interest awarded under section 171 of the Act in addition to compensation awarded, we direct that the insurance company shall pay the interest at the rate of 12 per cent per annum from the date of application till the date of award. From the date of award, i.e. 6.1.95, till deposit of the amount of compensation, the interest shall be borne and deposited by the appellant-owner. 11. From the date of award, i.e. 6.1.95, till deposit of the amount of compensation, the interest shall be borne and deposited by the appellant-owner. 11. Accordingly, we direct the respondent-insurer to deposit the amount, less the amount already deposited by it, if any, under the award with accrued interest from the date of application till the date of award. From the date of award till the date of deposit of the amount of compensation under award, the owner shall deposit the interest which shall be adjusted from the amount deposited by the appellant in accordance with the proviso to section 173 of the Act or as directed by this Court. In case the amount is found deficit, the balance amount of interest shall be deposited by the appellant within two months. If the appellant and insurer fail to deposit the amount of award and interest within two months from the date of supply of certified copy, as directed, the interest shall be recoverable for the periods specified from the appellant and insurer at the rate of 15% per annum till realisation. On deposit, the amount shall be disbursed by the Tribunal to the claimants keeping in mind the well-settled guidelines. 12. In the result, the appeals are allowed in the manner indicated hereinabove. In the circumstances, we direct the appellant to bear the costs of the appeals and to pay costs to the claimant-respondents. Consolidated counsel's fee Rs. 2,000/-, if pre-certified.