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2006 DIGILAW 396 (ORI)

National Insurance Company Ltd v. Dhobi Bewa

2006-05-17

N.PRUSTY

body2006
JUDGMENT N. PRUSTY, J. : This appeal has been filed by opposite party No.3/Insurance Company challenging the award dated 13.2.1996 passed by the 3rd M.A.C.T., Puri in M.A.C.T. Misc. Case No.122 of 1981, in awarding Rs.94,000/- in favour of the claimant/respondents towards compensation, with the direction that Rs.50,000/- shall be paid by appellant-Insurance Company/opposite party No.3 and Rs.44,000/- shall be paid by respondent No.4-owner of the vehicle/opposite party No.1, along with interest @ 12% per annum from the date of the application, i.e., 26.10.1981 till realization. The appellant Insurance Company has challenged this award on the ground that the liability of the Insurance Company is limited only to the extent of Rs.20,000/- vis-a-vis 3rd party liability, multiplier 15 applied by the Tribunal is on the higher side as well as interest should not have been allowed from the date of filing of the claim petition. However the appellant has not Challenged the rate of interest. The matter is listed today for admission under Order XLI Rule 11 of the C.P. Code. As it appears this appeal has been filed in June, 1996 and pending since then without being taken up for admission, even though in the meantime about ten years have elapsed. The accident, for which this claim application has been filed, occurred on 26.4.1981 and the poor claimants have only got paltry sum of Rs.20,000/- from the amount of statutory deposit made in this Court within a period of last 25 years of the acci¬dent. No appeal has been filed by the owner of the vehicle chal¬lenging the impugned award. The main grounds of challenge in this appeal are with regard to the direction to the Insurance Company to pay the amount of Rs.50,000/- out of the total awarded amount and application of higher multiplier. In view of the above, in my considered view no useful purpose shall be served in keeping this appeal pending any further and the same can be disposed of at this stage. Heard Mr. Roy, learned counsel for the appellant and Mr. Mishra, learned counsel for respondents. As it appears from the lower Court record and the impugned award, appellant/Insurance Company took the specific stand before the learned Court below that the statutory liability of the Insurance Company is Rs.50,000/- under the M.V. Act and as per the terms and conditions of the policy in question. Mishra, learned counsel for respondents. As it appears from the lower Court record and the impugned award, appellant/Insurance Company took the specific stand before the learned Court below that the statutory liability of the Insurance Company is Rs.50,000/- under the M.V. Act and as per the terms and conditions of the policy in question. The Insurance Company had also filed a memorandum to that effect in the Trial Court on 7.2.1986, which is available at page 117 of the lower Court record, specifically stating therein that the vehicle has been insured under Policy No.472/6301406/80 from 29.12.1980 to 28.12.1981 under stage carriage permit and the liability of the O.P. (Insurance Company) is Rs.50,000/- under the Statute as well as under the contract of the said policy. The learned Tribunal has directed the appellant/Insurance Company to pay Rs.50,000/- out of the total awarded amount of Rs.94,000/- along with inter¬est to the claimant/respondents on the basis of such memorandum filed and submissions made by the learned counsel who was appear¬ing for them in the trial Court. Considering the submissions made by learned counsel for both the parties and after going through the impugned order, I am of the considered view that the learned Tribunal has rightly deter¬mined the amount of compensation at Rs.94,000/- while assessing the same by applying multiplier 15, keeping in view the age of the deceased as well as the dependency of the claimants and accordingly passed the award directing the appellant insurance company to pay Rs.50,000/- out of the total awarded amount along with 12% interest, on the basis of the submissions made and the memorandum filed by the learned counsel appearing on behalf of the Insurance Company before the Court below. So far as multipli¬er 15 is concerned, even if lesser multiplier would have been applied, if the amount of compensation would have been more than Rs.50,000/- and not less than that, then also the Insurance Company would have to satisfy the award up to Rs.50,000/- and as such application of lesser multiplier would not have benefited the appellant in any manner. Since no appeal has been filed by the owner of the vehicle, the Insurance Company in its appeal cannot challenge the amount of award as well as the interest awarded, as because the Insurance Company is only to indemnify the owner of the vehicle if there was a valid policy in respect of the vehicle, which was involved in the accident and the acci¬dent was caused due to rash and negligent driving of its driver. In view of the above, I do not find any illegality, irregularity or manifest error of law in the impugned award, which shall require interference of this Court. It is also made clear that, in case there is valid policy and there is any viola¬tion of the terms and conditions of the policy, the Insurance Company can always be directed to pay the amount of compensation with liberty to realize the same from the owner of the offending vehicle in consonance with the ratio of the decision of the Apex Court vis-a-vis Section 149(4) of the M.A. Act, in accordance with law. This appeal is accordingly dismissed as the same is devoid of any merit. At this stage, Mr. Ray, learned counsel for the Insurance Company submits that since the liability of the Insurance Company is up to Rs.20,000/- and by mistake a memorandum has been filed by the lawyer of the Insurance Company before the Trial Court, without any instruction, liberty may be given to the Insurance Company to recover the excess amount from the owner of the vehi¬cle in accordance with law. Since the law is well settled in this regard, no further order need be passed on this aspect. However, it is made clear that in such a case, if so advised, the Insur¬ance Company shall be at liberty to proceed against the owner of the vehicle for recovery of the differential amount with inter¬est, which shall be deposited by it, for violation of the terms and conditions of the policy, in accordance with law. However, it is made clear that in such a case, if so advised, the Insur¬ance Company shall be at liberty to proceed against the owner of the vehicle for recovery of the differential amount with inter¬est, which shall be deposited by it, for violation of the terms and conditions of the policy, in accordance with law. It is also made clear that since Rs.25,000/- which was deposited by the Insurance Company in this Court on 2.9.1996 in shape of a cheque towards statutory deposit and the same was encashed and invested in fixed deposit on 7.1.1997, the Insurance Company is directed to deposit only interest at the rate of 12% per annum on the part of the awarded amount to be paid by it i.e. on Rs.50,000/- from the date of filing of the claim petition (26.10.1981) till 7.1.1997 and balance part of the amount of Rs.50,000/- i.e., Rs.25,000/- along with interest at the same rate from 8.1.1997 till the date of actual deposit, within a period of three months from today, equally in favour of both the claimant/respondent Nos.2 and 3. Out of the total amount deposit¬ed by the Insurance Company, 20% of such deposit shall be dis¬bursed in favour of the respondent Nos.2 and 3 keeping 80% of the amount in unencumberable fixed deposit for a period of six years in their respective names equally in any nationalized bank and no loan of any kind shall be sanctioned/disbursed in their favour by the concerned Bank during the entire period for which the amount is kept in fixed deposit. So far as owner of the vehicle is concerned, since no appeal has been filed by him, I have not observed anything with regard to payment of part of the awarded amount to be made by him and the Claimant-respondents 2 and 3 shall be at liberty to proceed against the owner of the vehicle for realisation of the amount in accordance with law. Mr. Mishra, learned counsel for the respondents submits that out of Rs.25,000/- which has been deposited by the Insurance Company in this Court towards statutory deposit, respondents 2 and 3 have withdrawn Rs.20,000/- on 28.6.2002. In that view of the matter, remaining amount along with up-to-date accrued inter¬est be disbursed in favour of respondents 2 and 3 within a period of three months hence. Appeal dismissed.