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2016 DIGILAW 1781 (HP)

New India Assurance Co. Ltd. v. Hem Chand

2016-08-26

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Both these appeals are the outcome of common award, dated 30th April, 2011, passed by the Motor Accident Claims Tribunal, Shimla, H.P., (for short, the Tribunal), in Claim Petition No.61-S/2 of 2007, titled Hem Chand vs. Ami Chand and others, whereby compensation to the tune of Rs.2,05,000/- with interest at the rate of 9% per annum, from the date of filing of the claim petition till payment, came to be awarded in favour of the claimant and the insurer was saddled with the liability, with right of recovery, (for short the “impugned award”). 2. The claimant has not questioned the impugned award on any count, thus, has attained finality so far as it relates to him. 3. Feeling aggrieved, the insurer has questioned the impugned award by way of FAO No.270 of 2011, whereas the insured and the driver have preferred FAO No.292 of 2011. 4. Since both the appeals arise out of common award, therefore, the same are taken up together for final disposal. 5. Heard learned counsel for the parties and have gone through the record. FAO No.270 of 2011 6. The insurer has questioned the impugned award by the medium of this appeal. A perusal of the record shows that the factum of insurance was admitted. It is also admitted that the claimant sustained injuries in the accident. Thus, it is not understandable why the insurer has filed the instant appeal. Moreover, no ground has been projected by the insurer in the memo of appeal. Accordingly, the appeal filed by the insurer is dismissed being not maintainable. FAO No.292 of 2011: 7. This appeal has been filed by the owner and the driver. Ms.Sunita Sharma, learned counsel for the appellants, argued that the claimant was in drunken condition and that it was a case of contributory negligence. However, the record does disclose that the driver had driven the vehicle rashly and negligently. FIR was lodged against the driver and final report, as has been stated by the Investigating Officer, was also filed before the court of competent jurisdiction. It is apt to reproduce paragraphs 24 to 26 of the impugned award herein: “24. The respondent No.3 had stated that respondent No.2 had not been in possession of a valid and effective driving licence. It is apt to reproduce paragraphs 24 to 26 of the impugned award herein: “24. The respondent No.3 had stated that respondent No.2 had not been in possession of a valid and effective driving licence. In his evidence, the petitioner had stated that respondent No.2 had been on the wheel of the vehicle No.HP-09B-7779 at the time of accident. RW-3 had also made such statement. The respondent No.2 had been booked on charges of rash and negligent driving vide FIR No.113/2006, Police Station, Theog. After completion of investigation, RW-3 had prepared final report under Section 173 Cr.P.C. against respondent No.2. 25. The learned counsel for the respondents No.1 and 2 had argued that the respondent No.2 had not been on the wheel of the vehicle at the time of accident. Instead RW-2 Jagdish had been driver of the vehicle. RW-2 had appeared in criminal case and had exonerated the respondent No.2. It had been argued that petitioner had been wrong in impleading respondent No.2 as party to the claim petition. RW-2 had been in possession of a valid and effective driving licence. 26. I find the defence of respondents No.1 and 2 devoid of merit. RW-1 (respondent No.1) and RW-2 had made absolutely false statements that respondent No.2 had not been on the wheel of the vehicle at the time of accident. As noticed above, the respondent No.2 was stated responsible for the accident as per FIR No.113/06. RW-3 had looked into the crime registered against respondent No.2 and had found sufficient grounds for prosecuting him. Simply because respondent No.2 stood acquitted was no ground to answer issue No.5 in favour of the respondents No.1 and 2. As noticed above, the respondents No.1 and 2 had manipulated evidence so as to avoid action under sections 279 and 337 IPC and Section 3/181 of the Act. In their reply the respondents No.1 and 2 had no where stated that RW-2 had been on the wheel of the vehicle at the time of accident. The respondent No.2 had faced the charges under Sections 279 and 337 IPC for a long period. The respondent No.2 did not appear in the witness box. On the basis of record, this Tribunal has no hesitation in holding that the respondent No.2 had been on the wheel of the vehicle No.HP-09B-7779 at the time of accident. The respondent No.2 had faced the charges under Sections 279 and 337 IPC for a long period. The respondent No.2 did not appear in the witness box. On the basis of record, this Tribunal has no hesitation in holding that the respondent No.2 had been on the wheel of the vehicle No.HP-09B-7779 at the time of accident. The respondent No.2 had not been in possession of a valid and effective driving licence. Issue No.5 is answered in favour of respondent No.3.” 8. The discussion and reasoning made by the Tribunal are legally correct. 9. However, the Tribunal has fallen into error in awarding interest at the rate of 9% per annum. It is beaten law of the 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 FAO No. 256 of 2010, titled as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015. 10. Having said so, it is held that the amount of compensation shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till the deposit thereof. 11. In view of the above discussion, the impugned award is modified, as indicated above, and the appeal filed by the owner and the driver is allowed to the above extent. 12. 11. In view of the above discussion, the impugned award is modified, as indicated above, and the appeal filed by the owner and the driver is allowed to the above extent. 12. The insurer is directed to deposit the amount, along with interest, if not already deposited, within a period of six weeks from today, and the Registry is directed to release the same in favour of the claimant through his bank account, after proper identification. 13. Both the appeals stand disposed of accordingly.