HDFC ERGO General Insurance Co. v. Shrimati Progri Devi
2016-10-21
MANSOOR AHMAD MIR
body2016
DigiLaw.ai
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award dated 14.3. 2012, passed by the Motor Accident Claims Tribunal Kullu, H.P. hereinafter referred to as “the Tribunal”, for short, in MAC No.29 of 2010, titled Smt. Progri Devi and others versus Pyare Chand and others, whereby compensation to the tune of Rs.5,39,800/- alongwith interest @ 9% per annum came to be awarded in favour of the claimants and insurer was saddled with the liability, for short “the impugned award”, on the grounds taken in the memo of appeal. 2. The claimants, owner, and driver have not questioned the impugned award on any ground, thus it has attained the finality, so far as it relates to them. 3. The insurer has questioned the impugned award on the grounds taken in the memo of appeal. 4. I have gone through the impugned award, is well reasoned, needs no interference, for the following reasons. 5. The claimants have filed claim petition for the grant of compensation as per the break-ups given in the claim petition which was resisted by the respondents and following issues came to be framed. (1) Whether Tara Chand in a roadside accident on 14.11.2009 at about 6.45 pm near Shildhari Nalla involving vehicle No. HP-66-1184 being driven by respondent no.2 in a rash or negligent manner? OPP (2) If issue no. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP (3) Whether the claim petition is not maintainable? OPR-3. (4) Whether the petitioners have not approached to the court with clean hands and have suppressed the material facts, if so, its effect? OPR-3. (5) Whether the driver of the vehicle in question was not having valid and effective driving licence, if so, it effect? OPR-3. (6) Whether the present claim petition has been filed in collusion with respondents 1 and 2? OPR-3. (7) Whether the vehicle was being plied in contravention to the provisions of M.V. Act as well as contract of insurance policy? OPR-3. (8) Relief. 6. The claimants have examined witnesses and one of the claimants, namely, Progri Devi also stepped into the witness box. Respondents have not examined any witness except the Investigating Officer Tej Ram. 7.
OPR-3. (7) Whether the vehicle was being plied in contravention to the provisions of M.V. Act as well as contract of insurance policy? OPR-3. (8) Relief. 6. The claimants have examined witnesses and one of the claimants, namely, Progri Devi also stepped into the witness box. Respondents have not examined any witness except the Investigating Officer Tej Ram. 7. The Tribunal, after scanning the evidence, held that the claimants have proved issue No. 1 and driver and owner have not questioned the said findings returned on issue No.1. Thus, the same have attained the finality so far as it relates to them. 8. I have gone through the record. The claimants have proved that the driver, namely, Kishan Chand has driven the offending vehicle rashly and negligently and caused the accident in which Tara Chand sustained the injuries and succumbed to the injuries. Accordingly, the findings returned on issue No. 1 are upheld. 9. Before I determine issue No. 2, I deem it proper to determine issues No. 3 to 7. Respondent-insurer has to discharge the onus on these issues, has not led any evidence. Only Investigating officer was examined. He has stated nothing relating to these issues. The Tribunal has rightly held that the insurer has failed to discharge the onus and decided issues No. 3 to 6 in favour of the claimants and against the driver owner and the insurer. I have gone through the record. The insurer has not led any evidence to prove these issues. Thus, the findings returned on these issues are upheld. Issue No.7. 10. It was for the insurer to prove that the owner has committed willful breach, has not led any evidence. Accordingly, findings returned on this issue are upheld. Issue No.2. 11. The deceased was 46 years of age at the time of the accident. He was a carpenter by profession and was also growing and selling the vegetables. The Tribunal has made discussion in paras 18 to 22 of the impugned award. I am of the considered view that the Tribunal has rightly made the assessment that the deceased was earning Rs.4400/- per month and after making deduction held that the claimants have lost source of dependency to the tune of Rs.3300/- per month and applied the multiplier of “13” and also granted the compensation on other heads. 12. Having said so, no interference is called for. 13.
12. Having said so, no interference is called for. 13. The Tribunal has awarded interest @ 9% per annum. However, interest was to be awarded at rate of 7.5% per annum, for the following reasons. 14. It is a 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 ; Satosh 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 & others 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. 15. Accordingly, interest @7.5% per annum is awarded from the date of claim petition till realization of the amount. 16. The Registry is directed to release the amount in favour of the claimants, alongwith interest @7.5% per annum from the date of filing the claim petition till its realization, forthwith, strictly in terms of the conditions contained in the impugned award, through payees’ cheque account, or by depositing the same in their bank accounts, after proper verification and excess amount, if any, be released in favour of the appellant, through payees cheque account. 17. Viewed thus, the appeal is allowed and the impugned award is modified, as indicated hereinabove. 18. Send down the record forthwith, after placing a copy of this judgment.