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2015 DIGILAW 1039 (HP)

United India Insurance Company Ltd. v. Gian Chand

2015-08-07

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, J. The appellantinsurer has questioned the judgment and award, dated 30.09.2008, made by the Motor Accident Claims TribunalII, Solan, District Solan, Himachal Pradesh (for short "the Tribunal") in M.A.C. Petition No. 40S/ 2 of 2001, titled as Gian Chand versus The United India Insurance Company and others, whereby compensation to the tune of Rs. 2,10,000/with interest @ 12% per annum from the date of filing of the claim petition till its realization was awarded in favour of the claimantinjured and the appellantinsurer came to be saddled with liability (for short "the impugned award"). 2. The claimantinjured, the ownerinsured and the driver of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. The appellantinsurer has questioned the impugned award on the ground that Shri Raj Dabarwal was driving the offending vehicle at the time of the accident and the claimantinjured has wrongly arrayed Shri Sudershan Singh as respondent No. 3 in the array of respondents in the claim petition. 4. Learned Senior Counsel appearing on behalf of the appellantinsurer also argued that the amount awarded is excessive and the rate of interest is not in accordance with Section 171 of the Motor Vehicles Act, 1988 (for short "MV Act"). 5. In order to determine this appeal, it is necessary to give flashback of facts of the case, the womb of which has given birth to the appeal in hand. 6. The claimantinjured has filed claim petition before the Tribunal for grant of compensation, as per the breakups given in the claim petition, on the ground that he became the victim of the motor vehicular accident, which was caused by the driver, namely Shri Raj Dabarwal, while riding scooter,bearing registration No. HP146577, rashly and negligently, on 24.06.2000 at about 1111.30 P.M. near Shamti Indane Gas Store just ahead Degree College Solan, and dashed the same against the bicycle of the claimantinjured, in which he sustained injuries. 7. The claim petition was resisted by the respondents therein on the grounds taken in the respective memo of objections. 8. Following issues came to be framed by the Tribunal on 30.04.2002: "1. Whether the petitioner sustained injuries due to rash and negligent driving of the respondent No. 2 as alleged? OPP 2. 7. The claim petition was resisted by the respondents therein on the grounds taken in the respective memo of objections. 8. Following issues came to be framed by the Tribunal on 30.04.2002: "1. Whether the petitioner sustained injuries due to rash and negligent driving of the respondent No. 2 as alleged? OPP 2. If issue No. 1 proved in affirmative, to what amount of compensation, the petitioner is entitled and against whom? OPP 3. Whether the present claim petition is not maintainable as the accident was caused due to rash and negligent riding of the cycle by the petitioner himself, as alleged, if so its effect? OPR1 4. Whether the driver of the scooter No. HP146577 was not holding the valid and effective driving licence at the time of alleged accident, as alleged, if so its effect? OPR1 5. Whether the scooter did not have a valid registration certificate at the time of alleged accident and was driven in breach of standard policy condition and M.V. Act as alleged? OPR1 6. Whether there is collusion between the petitioner and respondent No. 2, as alleged? OPR1 7. Whether present petition is bad for nonjoinder of necessary parties, as alleged? OPR2 8. Whether the vehicle was driven by the respondent No. 3 Shri Sudarshan Singh, as alleged, if so, its effect? OPR2 9. Whether scooter No. HP146577 was duly insured with the Insurance company, as alleged, if so its effect? OPR2 10. Relief." 9. It is apt to record herein that the claim petition was dismissed in default on 29.07.2004 and was restored on 27.06.2008. 10. Parties led evidence. The Tribunal, after scanning the evidence, oral as well as documentary, held that Shri Sudershan Singh was driving the offending vehicle at the time of the accident and awarded compensation in terms of the impugned judgment. Issue No. 1: 11. I have gone through the evidence led by the parties. There is clinching evidence led by the claimantinjured, supported by the witness of the ownerinsured and the reply filed by the ownerinsured, Shri Raj Dabarwal, that Shri Sudershan Singh had driven the offending vehicle at the relevant point of time. Having said so, the findings returned on issue No. 1 are upheld. 12. Before I determine issue No. 2, I deem it proper to determine issues No. 3 to 9. Issue No. 3: 13. Having said so, the findings returned on issue No. 1 are upheld. 12. Before I determine issue No. 2, I deem it proper to determine issues No. 3 to 9. Issue No. 3: 13. It was for the respondents in the claim petition to lead evidence and prove the said issue, have failed to prove the same. However, I have gone through the evidence led. Issue No. 3 is covered by the findings returned on issue No. 1. Thus, the findings returned by the Tribunal on issue No. 3 are also upheld. Issues No. 4 and 5: 14. It was for the insurer to lead evidence to prove that the driver of the offending vehicle was not having a valid and effective driving licence and the offending vehicle was being driven without the requisite documents at the time of the accident, has not led any evidence to that effect. Accordingly, the findings returned by the Tribunal on issues No. 4 and 5 are upheld. Issue No. 6: 15. The insurer has not led any evidence to prove that there was collusion between the claimantinjured and respondent No. 2 therein, i.e. the ownerinsured. Thus, the findings returned by the Tribunal on the said issue are upheld. Issue No. 7: 16. It was for the ownerinsured to prove that the claim petition was bad for nonjoinder of necessary parties. I wonder why this issue has been framed, as there is nothing on the file whereby it can be held that the claim petition was suffering from nonjoinder and misjoinder of necessary parties. Accordingly, the findings returned by the Tribunal on issue No. 7 are upheld. Issue No. 8: 17. In view of the findings returned on issues No. 1 and 3, the findings returned on issue No. 8 are also upheld. Issue No. 9: 18. The findings returned on this issue are not in dispute. Admittedly, the offending vehicle was insured at the relevant point of time. Having said so, the findings returned by the Tribunal on issue No. 9 are also upheld. Issue No. 2: 19. The amount awarded is meager in view of the fact that the claimantinjured has suffered injuries and has remained admitted in hospitals for more than one month. The Tribunal has made discussions in paras 12 to 17 of the impugned judgment. Issue No. 2: 19. The amount awarded is meager in view of the fact that the claimantinjured has suffered injuries and has remained admitted in hospitals for more than one month. The Tribunal has made discussions in paras 12 to 17 of the impugned judgment. In view of the findings returned and the fact that the claimantinjured has suffered injuries, I am of the considered view that the amount awarded is meager, however, the claimantinjured has not questioned the same, is reluctantly upheld. 20. I deem it proper to record herein that the Tribunal has fallen in an error in awarding interest @ 12% per annum. 21. It is beaten law of land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, reported in (2002) 6 Supreme Court Cases 281; Santosh Devi versus National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others, reported in (2012) 11 Supreme Court Cases 738; Smt. Savita versus Binder Singh & others, reported in 2014 AIR SCW 2053; Kalpanaraj & Ors. versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 Supreme Court Cases 433, and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 Supreme Court Cases 434, and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015. 22. It is also a fact that the claim petition was dismissed on 29.07.2004 and came to be restored on 27.06.2008, thus, the claimantinjured was not entitled to interest for the said period. 23. Having said so, I deem it proper to reduce the rate of interest from 12% per annum to 7.5% per annum from the date of the claim petition till 29.07.2004 and from 27.06.2008 till its realization. 24. Having glance of the above discussions, the appeal is disposed of and the impugned judgment is modified, as indicated hereinabove. 25. 23. Having said so, I deem it proper to reduce the rate of interest from 12% per annum to 7.5% per annum from the date of the claim petition till 29.07.2004 and from 27.06.2008 till its realization. 24. Having glance of the above discussions, the appeal is disposed of and the impugned judgment is modified, as indicated hereinabove. 25. Registry is directed to release the awarded amount in favour of the claimantinjured strictly as per the terms and conditions contained in the impugned award after proper identification. Excess amount, if any, be released in favour of the appellantinsurer through payee's account cheque. 26. At this stage, learned counsel for the claimantinjured stated at the Bar that the claimant has died during the pendency of the appeal. The legal representatives are at liberty to lay a motion for release of the amount, as per the law applicable. 27. Send down the record after placing copy of the judgment on Tribunal's file.