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2007 DIGILAW 925 (ORI)

New India Assurance Co. Ltd. v. Kunika Ojha

2007-12-13

B.N.MAHAPATRA

body2007
JUDGMENT B. N. MAHAPATRA, J. — This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’) filed by the Insurance Company challenging the award dated 14.10.2004 passed by the 1st Motor Accident Claims Tribunal (hereinafter referred to as the “Tribunal”), Mayurbhanj, Baripada in M.A.C.T. Misc. Case No. 172 of 2002. 2. The facts of the case are that on 20.9.2002 at about 1.00 P.M. while the deceased was going by his cycle from Kachery Bazar of Bhadrak towards Charampa Bazar, one Chesis bearing Registration No. JH-05-A-3976/A/02 which was proceeding towards Patrapada from Tata side on N.H.5 at a high speed, dashed against the deceased near National Petrol Pump, Charampa Bazar, as a result of which, the deceased sustained grievous injuries on his body and died on the spot. 3. The claimant-respondents who are widow, sons and daughter of the deceased filed a claim application before the Tribunal claiming compensation of Rs. 1,95,000/- The owner of the vehicle though filed written statement did not contest the case. The Insurance Company filed written statement denying the allegations made in the claim petition. 4. Before the Tribunal the claimants contended that the deceased was aged about 37 years at the time of accident and his monthly income was Rs. 4,000/-. It was further contended that the offending vehicle was insured with the Insurance Company and the insurance policy was also valid at the time of accident. The Insurance Company filed a petition under Section 170 of the Act which was allowed by the learned Tribunal. The Insurance Company while denying the allegations made in the claim petition pleaded that the amount of compensation claimed by the claimants is high, exorbitant and unreasonable. It was further pleaded that the Insurance Company is not liable to pay any compensation since the driver of the offending vehicle had no valid and effective driving licence at the time of accident and the owner of the vehicle had violated the terms and conditions of the insurance policy. 5. On the pleadings of the parties, the Tribunal framed the following issues : (i) Whether the deceased died in the accident on 20.9.02 at about 1 P.M. near National Petrol Pump, Charampa Bazar due to rash and negligent driving ? 5. On the pleadings of the parties, the Tribunal framed the following issues : (i) Whether the deceased died in the accident on 20.9.02 at about 1 P.M. near National Petrol Pump, Charampa Bazar due to rash and negligent driving ? (ii) Whether the offending vehicle bearing No. JH-05A/3976/A/02 chesis No. 3733413 x 21180-69 was covered under valid policy of insurance, having D.L. of the driver ? (iii) Whether the claimants are entitled to get compensation, if so, to what extent ? 6. The claimants examined two witnesses including, the widow of the deceased as P.W.1 and filed documents marked as Exts. 1 to 8 in support of their claim. The Insurance Company has examined one witness as O.P.W.1, who is an Investigator of its Company, and filed documents marked as Exts. A to D. 7. The learned Tribunal after considering the charge sheet filed by the police against the driver of the offending vehicle for the offence under Sections 279/304-A, IPC and the certified copies of the post mortem report of the deceased and seizure list, held that the accident took place due to the rash and negligent driving of the driver of the offending vehicle and the deceased died due to the said accident. It was further held that the offending vehicle was validly insured with the Insurance Company. The learned Tribunal also found that the Driving Licence No. 623/88 was issued by the D.T.O. Jamshedpur in favour of Parsuram Singh, the driver of the offending vehicle, and the said driving licence was effective and valid on the date of the accident. Taking into consideration the age of the deceased as per the post mortem report and that the deceased was a Ward Member at the time of accident, the Tribunal applied 12 multiplier for the purpose of calculation of compensation and determined the compensation amount at Rs. 1,44,000/-. Besides, the Tribunal also awarded a sum of Rs. 2,000/- towards funeral expenses, Rs. 3,000/- towards loss of estate and Rs. 5,000/- towards loss of consortium. Thus, in total, the learned Tribunal awarded compensation of Rs. 1,54,000/- and directed the Insurance Company to pay the said amount with interest at the rate of 9% per annum from the date of application i.e. 7.10.2002. 8. 2,000/- towards funeral expenses, Rs. 3,000/- towards loss of estate and Rs. 5,000/- towards loss of consortium. Thus, in total, the learned Tribunal awarded compensation of Rs. 1,54,000/- and directed the Insurance Company to pay the said amount with interest at the rate of 9% per annum from the date of application i.e. 7.10.2002. 8. It is submitted by the learned counsel for both parties that keeping in view the manner and spirit in which the motor accident claims cases are disposed of in Lok Adalat, this appeal may be disposed of accordingly. 9. However, learned counsel appearing on behalf of the Insurance Company submitted that at the time of accident, the driver of the offending vehicle did not have valid and effective licence and, therefore, the Insurance Company may be allowed to recover the compensation amount from the owner of the vehicle. It is further submitted that the rate of interest as awarded by the Tribunal is high and excessive and instead of 9%, as awarded by the Tribunal the same may be reduced to 6%. Learned counsel for the claimant-respondents on the other hand supported the order of the learned Tribunal. Learned counsel appearing on behalf of the owner of the vehicle submitted that the claim of Insurance Company for right of recovery can only be decided by the Tribunal in accordance with law if a petition to that effect would be moved before the Tribu¬nal. 10. It is not disputed that the deceased was killed in a vehicular accident as held by the Tribunal in its order. After going through the evidence on record, I find that the compensation amount as fixed by the Tribunal appears to be just and reasona¬ble. Hence, the same needs no interference. However, the award of interest at the rate of 9% appears to be little higher side and, therefore, the same is reduced to 6%. 11. In view of the above, the appellant-Insurance Company is directed to pay a sum of Rs. 1,54,000/- (Rupees one lakh fifty four thousand) to the claimant-respondents towards compensation along with interest at the rate of 6% per annum from the date of claim application i.e. 7.10.2002 till the date of deposit before the Tribunal. The entire amount be deposited before the Tribunal within a period of six weeks from the date of receipt of this order. 1,54,000/- (Rupees one lakh fifty four thousand) to the claimant-respondents towards compensation along with interest at the rate of 6% per annum from the date of claim application i.e. 7.10.2002 till the date of deposit before the Tribunal. The entire amount be deposited before the Tribunal within a period of six weeks from the date of receipt of this order. After the said amount is deposited the same shall be disbursed in favour of the claimant-respondents in the manner as directed by the Tribunal. 12. With regard to the Insurance Company’s claim for extending the benefit of right of recovery in its favour for realisation of the compensation amount from the owner of the vehicle, I am not inclined to accept such a claim since the Tribunal has already given a finding that the insurance policy of the offending vehicle was valid from 1.1.2002 to 31.12.2002 covering the date of accident and the Driving Licence bearing No. 623/88 issued by the D.T.O., Jamshedpur in favour of Parsuram Singh, the driver of the offending vehicle was also effective and valid on the date of accident. However, if the insurance company is so advised, it may move an appropriate application in this regard before the Tribunal for which this Court expresses no opinion. This Court makes it clear that the compensation amount shall be disbursed to the claimant-respondents without waiting for finalization of the inter se dispute, if any, between the Insur¬ance Company and the owner of the vehicle. The statutory amount of Rs. 25,000/- along with interest accrued thereon may be refunded to the Insurance Company on production of receipt before the Registrar (Judicial) of the Court showing deposit of the compensation amount with interest before the Tribunal as per this order. 13. With the aforesaid direction, the appeal is allowed in part. Appeal allowed in part.