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2013 DIGILAW 733 (RAJ)

United India Insurance Co. v. Savitri Devi

2013-04-09

VIJAY BISHNOI

body2013
JUDGMENT 1. - This appeal is preferred against the judgment and award dated 20.04.2004 passed by Judge, Motor Accident Claims Tribunal, Sangariya, Distt. Hanumangarh (for short 'the Tribunal' hereinafter) in MACT Claim NO.18/2002 (63/2000), whereby compensation of Rs. 1,99,000/- has been awarded to the claimants and the appellant-company has been held liable to pay the entire compensation. 2. Brief facts of the case are that on 19.02.2000 at about 6:30 A.M., deceased-Surendra Kumar proceeded towards Chak D.J.M., Ramsinghpur Mandi in jeep No.RJ- 14C-4562 and at about 11:30 AM when he reached near 49GB Bus Stand, suddenly the rear tire of the jeep burst and on account of that, the jeep driven by Surendra Kumar turned turtle due to which, he suffered fatal injuries. A first information report of the incident was filed at Police Station, Ramsinghpur, Distti Sri Ganganagar and the police filed the FR in respect of the said accident. 3. Respondents No. 1 to 4 wife and children of the deceased Surendra Kumar filed a claim petition and claimed compensation of Rs. 41,85,000/-. In the claim petition, the owner of the jeep - Narendra Kumar and Insurance Company were made party - respondents. On the basis of pleadings of the parties, the Tribunal framed as many as six issues and after taking evidence of the parties, passed the award dated 20.04.2004 and ordered for payment of compensation of Rs. 1,90,000/- with the interest at the rate of 6% per annum from the date of filing of the claim petition. The liability of paying the compensation was fastened upon the appellant. 4. Being aggrieved with judgment and award dated 20.04.2004, the appellant has preferred this appeal. 5. The main point raised by the learned counsel for the appellant before this Court is that the claim petition preferred by the claimants under section 166 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988' hereinafter) was not maintainable at all and the learned Tribunal has erred in passing the award dated 20.04.2004 and fastening the liability upon the appellant. It has been contended by the learned counsel for the appellant that from a bare perusal of the claim petition, it is clear that the claim petition was filed under section 166 of the Act of 1988, whereas the respondent-claimants have failed to plead and prove the negligence of the opposite party and in the absence of it, no compensation under section 166 of the Act of 1988 could be awarded. The learned counsel for the appellant has invited the attention of this Court towards the claim petition and has urged that in para 24 of the claim petition, it is clearly pleaded that the accident occurred on account of bursting of rear tire of the jeep but it has nowhere been averred that the accident occurred on account of rash and negligent act on the part of the deceased Surendra Kumar, who was driving the jeep at the time of accident. It has also been contended that the jeep met with the accident not on account of negligent act of the driver (deceased), who succumbed to injuries in the accident and in such circumstances, when no negligence is pleaded and proved, Insurance Company cannot be held liable for compensation. 6. The learned counsel for the appellant has relied on the decisions of Hon'ble Supreme Court in Oriental Insurance Company Ltd. (The) v. Meena Variyal & Ors., reported in MACD 2007 (1) (SC) 390 , Surender Kumar Arora & Anr. v. Dr. Manoj Bisla & Ors., reported in 2012 R.A.R. 158 (SC) , and A. Sridhar v. United Insurance Co. Ltd. & Anr., reported in MACD 2011 (SC) 161 . 7. The learned counsel for the appellant has also challenged the part of the award passed by the Tribunal, whereby the Tribunal has directed the appellant-company to pay the compensation of Rs. 1,99,000/- with interest at the rate of 6% per annum within a period of two months from the date of award and further directed that in case of default of the appellant-company, it shall be liable to pay the compensation along with interest at the rate of 9% per annum. 1,99,000/- with interest at the rate of 6% per annum within a period of two months from the date of award and further directed that in case of default of the appellant-company, it shall be liable to pay the compensation along with interest at the rate of 9% per annum. The learned counsel for the appellant has argued that such direction of the learned Tribunal to pay penal interest is contrary to the provisions of the Act of 1988 as the Tribunal is not empowered to direct the Insurance Company to pay the compensation with the penalty of higher rate of interest. The learned counsel for the appellant has relied on a decision of Hon'ble Apex Court in National Insurance Co. Ltd. v. Keshav Bahadur & Ors., reported in AIR 2004 SC 1581 . 8. Per contra, the learned counsel for the respondents has supported the impugned judgment and award passed by the learned Tribunal and has argued that the jurisdiction of the Tribunal is not restricted to decide the claims only arising out of the negligence in the use of motor vehicle. It has been further contended that the negligence is one of the species of the cause of actions for making a claim for compensation in respect of accident arising out of use of motor vehicle and there are other premises for such cause of action. The learned counsel for the respondents has further contended that in the present case, the death of Surendra Kumar took place while the vehicle was in use and as per the provisions of the Act of 1988, the claim petition filed by the claimants was very much maintainable under section 166 of the Act of 1988. 9. The learned counsel for the respondents has relied upon the decisions of Hon'ble Supreme Court in S. Kaushnuma Begum & Ors. v. The New India Assurance Co. Ltd. & Ors., reported in AIR 2001 SC 485 (1) , and of this Court in National Insurance Company Ltd. v. Kur Singh & Ors., reported in AIR 2007 Rajasthan 162 . 10. So far direction given by the Tribunal for payment of penal interest is concerned, the learned counsel for the respondents has fairly submitted that such a direction cannot be given by the Tribunal. 11. This Court has considered the submissions of the learned counsel for rival parties and carefully examined the record of the case. 10. So far direction given by the Tribunal for payment of penal interest is concerned, the learned counsel for the respondents has fairly submitted that such a direction cannot be given by the Tribunal. 11. This Court has considered the submissions of the learned counsel for rival parties and carefully examined the record of the case. 12. It is not in dispute that the accident, in which Surendra Kumar died, occurred on account of bursting of rear tire of the jeep, which he was driving on the fateful day. It is also not in dispute that in the claim petition, the respondent-claimants have not pleaded negligence of the driver (deceased). Section 165 of the Act of 1988 empowers the Motor Accident Claims Tribunal constituted by the State Government through notification in the official gazette to adjudicate upon the claim petition for compensation in respect of accidents involving the death or of bodily injuries to person arising out of use of motor vehicle or to any property of a third party so arising or both. The jurisdiction of the Tribunal is not restricted to decide the claims arising out of negligence in the use of motor vehicle and there are other premises for such cause of action. 13. This Court in National Insurance Company Ltd. v. Kur Singh & Ors. (supra), while following the law laid down by Hon'ble Supreme in S. Kaushnuma Begum & Ors. v. The New India Assurance Co. Ltd. & Ors. (supra), has held as under: "It is to be imbibed that the cause for compensation under the Motor Vehicles Act arises when the loss is caused by the use of motor vehicle and not for driving alone." 14. Therefore, the contention raised by the learned counsel for the appellant that the claim petition preferred by the claimants under section 166 of the Act of 1988 was not maintainable on account of absence of any pleading regarding the negligence on the part of the driver, is bereft of substance and liable to be rejected. 15. The another contention raised by the learned counsel for the appellant that the learned Tribunal is not empowered to direct the Insurance Company to pay compensation with penalty of higher rate of interest deserves consideration. 16. Section 171 of the Act of 1988 confers a discretion on a Tribunal to award interest. 15. The another contention raised by the learned counsel for the appellant that the learned Tribunal is not empowered to direct the Insurance Company to pay compensation with penalty of higher rate of interest deserves consideration. 16. Section 171 of the Act of 1988 confers a discretion on a Tribunal to award interest. However, no expression or implied power of enhancing the rate of interest in case of default has been given to the Tribunal. 17. The Hon'ble Apex Court in National Insurance Co. Ltd. v. Keshav Bahadur & Ors. (supra) has held as under: 14. Though Section 110-CC of the Act (corresponding to Section 171 of the New Act) confers a discretion on the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110-CC of the Act or Section 171 of the new Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore, directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal." 18. In such circumstances, the directions given by the Tribunal for payment of interest at the rate of 9% per annum are set aside and it is directed that the appellant company is liable to pay the interest on the compensation awarded by the Tribunal at the rate of 6% per annum from the date of filing of the claim petition. 19. With above modifications, this appeal is partly allowed. *******