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Himachal Pradesh High Court · body

2016 DIGILAW 1603 (HP)

National Insurance Co. Ltd. v. Prem Lata

2016-08-05

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to the judgment and award, dated 1st August, 2011, made by the Motor Accident Claims Tribunal, Kullu, District Kullu, H.P. (for short "the Tribunal") in Claim Petition No. 8 of 2010, titled as Prem Lata and others versus Neerat Ram and others, whereby compensation to the tune of 8,36,000/- with interest @ 9% per annum from the date of filing of the petition till its realization came to be awarded in favour of the claimants and against the insurer (for short “the impugned award”). 2. The claimants, owner-insured 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 appellant-insurer has questioned the impugned award on the grounds taken in the memo of the appeal. 4. I have gone through the entire record and am of the considered view that the appeal in hand is totally misconceived and merits to be dismissed. 5. However, learned counsel for the appellant-insurer argued that the fitness certificate of the offending vehicle was not valid at the relevant point of time, thus, the owner-insured has committed willful breach. 6. Learned counsel for the appellant-insurer was asked to show how this ground is available to him in terms of the mandate of Sections 146, 147 and 149 of the Motor Vehicles Act, 1988 (for short “the MV Act”) read with the terms and conditions contained in the insurance policy, was not able to answer. 7. Even otherwise, no such issue was framed by the Tribunal. The issues framed by the Tribunal in the claim petition are as under: “1. Whether Sh. Tek Chand died in a motor vehicle accident on 5.2.2010 at 6.00 p.m. at village and P.O. Seobagh involving vehicle No. HP660716 being driven by respondent No. 2 in a rash and negligent manner? OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP 3. Whether the driver of the vehicle No. HP660716 was not possessing a valid and effective driving licence at the time of accident? OPR3 4. Relief.” 8. Learned counsel for the appellant-insurer has not disputed the findings recorded by the Tribunal on issues No. 1 to 3. OPP 3. Whether the driver of the vehicle No. HP660716 was not possessing a valid and effective driving licence at the time of accident? OPR3 4. Relief.” 8. Learned counsel for the appellant-insurer has not disputed the findings recorded by the Tribunal on issues No. 1 to 3. Perhaps, learned counsel for the appellant-insurer is trying to carve out a case from part of issue No. 2, i.e. 'from whom'. 9. The insurer has examined Shri Brij Mohan Gautam, Steno of RTO, Kullu, as RW2, who has stated that the fitness certificate was valid and the offending vehicle was fit to be plied on the road. The Tribunal has discussed the arguments advanced by the learned counsel for the insurer in para 23 of the impugned award. It is apt to reproduce para 23 of the impugned award herein:- “23. From the oral testimony of RW 1 Khekh Ram and RW 2 Brij Mohan Gautam as well as documentary evidence, especially screen report Ex. PW2/A and copy of RC Ex. RW2/B as well as insurance policy Ex. RX and driving licence of the driver, it is proved that the vehicle was validly insured with respondent No. 3 and driver was having valid driving licence. The vehicle was insured with respondent No. 3 w.e.f. 13.7.2009 to 12.7.2010. The perusal of these documents proves that the vehicle had valid documents. The arguments of the learned counsel for the respondent No. 3 that the vehicle was not having proper fitness certificate cannot be upheld since it has been proved from the testimony of RW2 that after taking the fine amount, fitness certificate was issued and the vehicle was fit to be plied on the road. It has also been admitted by this witness that the insurance company always insures the vehicle which is fit to be plied on the road. No evidence has been led by the respondent No. 3 to prove this issue that the vehicle in question was not having valid documents and driver was not having valid driving licence, though the onus to prove this issue was upon respondent No. 3. Hence, it can be safely held that the vehicle was insured with respondent No. 3 at the time of accident. Hence, it can be safely held that the vehicle was insured with respondent No. 3 at the time of accident. The respondents No. 1 and 2 are held liable to make payment however, respondent No. 3 as indemnifier and insurer of the vehicle in question is held liable to indemnify the respondents No. 1 and 2 qua amount of compensation and to make entire payment of the compensation amount. Issue is accordingly decided.” 10. Having said so, the Tribunal has rightly made the impugned award, needs no interference. 11. However, it appears that the Tribunal has fallen in an error in awarding interest @ 9% per annum. 12. 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 SCC 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 SCC 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 SCC 433 , and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 SCC 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. 13. Viewed thus, the rate of interest is reduced from 9% to 7.5% per annum from the date of filing of the claim petition till its realization. 14. Viewed thus, the impugned award is upheld and the appeal is dismissed. 15. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same in their respective bank accounts. 16. Send down the record after placing copy of the judgment on the Tribunal's file.