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2009 DIGILAW 1 (JK)

Union Of India v. Fatima

2009-01-01

MUZAFFAR HUSSAIN ATTAR

body2009
1. This civil miscellaneous first appeal is filed against the award dated 30th June 2006 passed by MACT, Srinagar. 2. A claim petition came to be filed u/s 166 Motor Vehicles Act 1988 (hereinafter referred to as the `Act of 1988) by Mst. Fatima (widow); Kulsooma & Mubeena (daughters) and Nissar Ahmed Matoo (minor son) before MACT, Srinagar on 23rd July 2001 claiming compensation of Rs.15.60 lacs from the appellants on the ground of death of Gh. Hassan Matoo husband of petitioner No.1 and father of petitioners 2 to 4. 3. In the claim petition, it was pleaded that Gh. Hassan Mattoo (hereinafter referred to as `deceased) was hit by an Army vehicle at Sempora on National Highway which falls within the jurisdiction of Police Station Panthachowk. The deceased was hit by offending vehicle, which, it is pleaded, was being driven either rashly or negligently by driver of the offending vehicle belonging to the appellants and accident occurred on 07th Nov. 2001. 4. The claimants made a claim for payment of compensation to the tune of Rs.15.60 lacs on the ground that the deceased was working as "Baildar as also Chowkidar" of Brick Killen at Rakh Shalina Tehsil Chadura. It was further pleaded in the claim petition that the deceased was earning Rs.5200/- per month. The untimely death of the deceased deprived the claimants of their source of sustenance. It was further pleaded that the deceased at the time of accident was 45 years of age. On issue of notice to otherside, after considerable period of time, written statement was filed by the appellants in which they denied the very accident having been taken place and further denied the involvement of the army vehicle in such accident. The tribunal on the pleadings of the parties framed five issues, which are reproduced herein below: "1. Whether on 07.01.2001, an army vehicle was being plied by its driver rashly, carelessly and negligently as a result of which at Sampora it hit one Gh. Hassan Matoo who was walking on his correct side of the road due to which he died on spot? OPP. 2. In case the issue no.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? OPP 3. Hassan Matoo who was walking on his correct side of the road due to which he died on spot? OPP. 2. In case the issue no.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? OPP 3. Whether no vehicle of the respondent is in any way involved or connected with the alleged accident and as such petition is not maintainable? OPRs. Whether the petitioners have no cause of action against the respondents? OPRs. 5. Relief." 5. The tribunal ultimately after considering the evidence lead by parties on the basis of the law, passed award in the amount of Rs.5.43 lacs in favour of the claimants and interest at the rate of 9% p.a from the date of filing of claim petition till final realization of the award, was also passed in favour of the claimants. 6. The non-applicants in the claim petition being aggrieved of the award passed by MACT, Srinagar challenged the same before this court by filing an appeal. 7. At the time of hearing of the case, the learned counsel for the appellant submitted that she gives up her challenge to the award and further submitted that she is restricting challegne only to the interest part and sought its reduction from 9% to 6%. This court in view of the said submission made by leaned counsel for the appellant maintains the award passed by MACT, Srinagar in favour of claimants. 8. In view of the said stand taken by learned counsel for the appellants, what now is required to be considered is whether rate of interest is to be maintained at 9% p.a awarded by Tribunal or requires to be reduced to 6% as argued by learned counsel for the appellants. 9. Section 168 of the Act of 1988 gives power to MACT for making an award determining the amount of compensation which appears to it, to be just and specifying the person or persons to whom compensation shall be paid which is is reproduced as under: "168. 9. Section 168 of the Act of 1988 gives power to MACT for making an award determining the amount of compensation which appears to it, to be just and specifying the person or persons to whom compensation shall be paid which is is reproduced as under: "168. Award of the Claims Tribunal.-(1) On receipt of an application for compensation made under Sec.166, the Claims tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and subject to the provisions of Sec. 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under Sec. 140 in respect of the death or permanent disablement of any person, such claim and any other claim(whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct." 10. The tribunal is authorized to award interest where claim is allowed, in terms of Section 171 of the Act of 1988 which is reproduced as under: "171. The tribunal is authorized to award interest where claim is allowed, in terms of Section 171 of the Act of 1988 which is reproduced as under: "171. 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 be specified in this behalf." 11. Section 173 of the Act of 1988 confers jurisdiction on the High Court to hear the appeals filed by any person aggrieved against an award of Claims tribunal which section is reproduced as under:- "173.Appeals. - (1) Subject to the provisions of sub-section (2), any person aggrieved by an award, of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty percent of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days. If it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees." 12. A conjoint reading of above reproduced provisions may even suggest that appeal is not competent against the award of the tribunal in respect of interest alone. It is settled position in law that right to institute a suit is a right recognized at common law and inheres in everybody, subject to of course, to statutory limitations of continuation of such suit. The right to file an appeal however is a right created by statute and appeal can be filed only when statute gives right to file appeal against judgment, decree, award and can be filed by a person on whom such right is conferred by the statute. The right to file an appeal however is a right created by statute and appeal can be filed only when statute gives right to file appeal against judgment, decree, award and can be filed by a person on whom such right is conferred by the statute. The maintainability and competence of appeal against award of interest alone, however is left open in this case as the issue was neither raised nor debated. Such an issue can be decided in an appropriate case where issue is raised and debated. 13. Heard learned counsel for the parties and considered the matter. The Learned counsel for the appellants Ms. Asifa Padroo, has given up challenge to the award and has submitted that this appeal would survive only in respect of the interest and she seeks reduction of the interest from 9% which has been awarded by tribunal, to 6%. The learned counsel submits that in the facts and circumstances of this case it would be appropriate to award 6% interest. The learned counsel in support of her contention has relied on case titled "Puttanna and anr appellant vs. Lakshmana and ors respondents reported in AIR 2000 Karnataka page 187. In the said case the interest was ordered to be paid at the rate of 6%. This was a case for enhancement of interest from 6 % to 12%. In the said case 6% interest was awarded by tribunal which award was based on its own facts and circumstances. 14. The learned counsel appearing for respondents however, submits that the award of interest at the rate of 9% is just and equitable in the facts and circumstances of the case and submitted that the appeal be dismissed. 15. The learned counsel has relied upon a full bench judgment of Andra Paradesh High Court in case titled A.P.S.R.T.C and anr appellants v. B. Vijaya and ors. respondents reported in AIR 2002 Andhra Paradesh 441. The learned counsel has further referred to and relied on case title Abati Bezbaruah appellant v. Dy. Director General, Geological Survey of India and anr respondents reported in AIR 2003 SC page 1817. The learned counsel further referred to and relied on Oriental Insurance co. v. Shamsher Singh & Ors reported 20003(II) SLJ page 470. Besides this the learned counsel has also referred to and relied upon case titled S. Kaushnuma Begum and ors appellant vs. New India Assurance co. The learned counsel further referred to and relied on Oriental Insurance co. v. Shamsher Singh & Ors reported 20003(II) SLJ page 470. Besides this the learned counsel has also referred to and relied upon case titled S. Kaushnuma Begum and ors appellant vs. New India Assurance co. reported in AIR 2001 SC page 485. The learned counsel has also relied on case titled National Insurance company ltd v. Keshav Bahadur reported in AIR 2004 SC page 1581. 16. The power to award interest would flow from section 171 of the Act 1988. The said section authorizes and empowers the tribunal to award interest when the Claims tribunal allows the claim for compensation under the said Act. There is, however, one statutory inhibition in awarding the interst from the date which cannot be earlier than the date of making of the claim and the interest so awarded is to be in addition to the amount of compensation and has to be simple interest. The said section does not state as to what can be the amount of interest which can be awarded. The legislatures in their wisdom have rightly left it to the discretion of the tribunal/court to fix the rate of interest because the facts and circumstances of the case differ from facts and circumstances of the other case. Section 171 of the Act of 1988 further does not provide the circumstances and basis on which an interest can be awarded by the tribunal/court. This has also been left to the discretion of the tribunal/court. 17. The Judicial discretion is stated to be not an unbridled horse. The judicial discretion has to be exercised in accordance with the laws and settled judicial principles. Section 171 of the Act of 1988 places heavy responsibility on the tribunal/court for awarding interest on a claim for compensation. The perusal of the judgments referred to at the bar by the learned counsel for the parties do not lay law as to what can be the rate of interest which can be awarded by the tribunal/court. 18. The courts have by and large concurred that interest can be awarded at different rates which is dependent on the facts and circumstances of the each case. The basis, grounds and circumstances can vary from case to case and no exhaustive list can be enumerated by the courts. 18. The courts have by and large concurred that interest can be awarded at different rates which is dependent on the facts and circumstances of the each case. The basis, grounds and circumstances can vary from case to case and no exhaustive list can be enumerated by the courts. However, awarding interest may depend on the nature of injury sustained, mental agony under gone and other attending circumstances and in particular the question of delay and the amount of compensation awarded can also be taken into consideration. This is what has been stated by full bench of Andhra Paradesh High Court in A.P.S.R. T.C `s case and this has been said after considering the law laid down by Supreme Court and many other courts in this regard. 19. Now considering the present case on the touchstone of what has been stated in all the above judgments and the court deems that on the analysis of facts of the case interference is not called for in reducing rate of interest from 9% p.a to 6% p.a. The claim petition was filed before the claims tribunal on 23rd July 2001 and the appellants after appearing before the tribunal did not file their written statement for more than one year. Though, some delay is caused in disposal of the claim petition because of strikes and non-availability of presiding officer on some dates of hearing but mostly the delay in disposal to the claim petition is attributable to the appellants themselves. 20. The sole bread earner of the family died because of vehicular accident which naturally must have subjected the claimants to incalculable mental agony and sufferings. The deceased has suffered fatal injuries and succumbed to them on spot. 21. The delay in disposal of the claim petition is attributable to the conduct of the appellants also who filed written statements after a period about one year. Had the written statements been filed within reasonable time, claim petition would have been decided earlier and claimants would have been paid the claim amount on an earlier date. The prices of commodities do not remain stable. This is also a circumstance which weighs in favour of the claimants and against the appellants. The rate of interest is maintained at 9%. The appeal in these circumstances fails and is dismissed. The prices of commodities do not remain stable. This is also a circumstance which weighs in favour of the claimants and against the appellants. The rate of interest is maintained at 9%. The appeal in these circumstances fails and is dismissed. The amount if any deposited and not paid shall be paid to the claimants in accordance with award along with interest.