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Uttarakhand High Court · body

2016 DIGILAW 271 (UTT)

National Insurance Co. Ltd. v. Meena Devi

2016-06-27

SERVESH KUMAR GUPTA

body2016
JUDGMENT : 1. Both the appeals, titled above, have arisen out of the same judgment dated 10.2.2010 rendered by the Workmen Compensation Commissioner, Rishikesh, District Dehradun, hence are being adjudicated jointly by this Court. 2. I have heard learned Counsels for all concerned and perused the record as well. 3. It transpires that on 25.5.2005 at 9:20 A.M., the Commander Jeep No.UP07-K-9571, while coming to Rishikesh from Srinagar, swerved from the serpentine roads and fell in a deep gorge. Its driver Mr. Vishweshwar Dutt Thapliyal became seriously injured and later on, during the course of medical treatment, he succumbed to his injuries. His dependents filed the claim petition before the authority concerned on 17.8.2006 wherein, on 20.3.2009, the insurance company filed its un-dated written statement (although bearing the year 2007). 4. Mr. Padam Singh was personally served on 7.4.2007 but he did not turn up to present his written statement, much less producing any evidence, so the matter proceeded against him. 5. On 4.12.2009, the insurance company filed another application revealing the fact that the offending vehicle had, in fact, been transferred on 27.8.2003 by its owner Mr. Padam Singh in favour of Mr. Vishweshwar Dutty Thapliyal by way of reducing an agreement on a Stamp Paper worth Rs.100/- and the photocopy of such document dated 27.8.2003 was submitted by the insurance company along with its additional objections. Yet, the authority concerned has decreed the petition for Rs.3,08,484/- to be payable by the insurance company, whereas the liability to pay the interest @6 percent per annum making it to Rs.92,545/- was fastened upon the vehicle owner Mr. Padam Singh. Furthermore, a cost of Rs.10,000/- was also imposed on the vehicle owner for not taking interest in the litigation. 6. It has not been disputed that the vehicle concerned was comprehensively insured and the insurer issued the policy deeming Mr. Padam Singh as the owner. 7. Learned counsel for the insurance company has vehemently argued that since the ownership of the vehicle had been transferred for the total consideration of Rs.1.70 lakh, hence, it should be accepted that the deceased Mr. Thapliyal himself was the owner of the Jeep concerned. Padam Singh as the owner. 7. Learned counsel for the insurance company has vehemently argued that since the ownership of the vehicle had been transferred for the total consideration of Rs.1.70 lakh, hence, it should be accepted that the deceased Mr. Thapliyal himself was the owner of the Jeep concerned. In the opinion of this Court, this argument is wholly unsubstantial and thus, rejected for the reason that even if the photocopy of the deed, revealing the fact of transfer of title is accepted for a moment, then it cannot be read in evidence as none appeared to prove such photocopy nor the claimants could get any opportunity to cross-examine the person who was relying upon this deed. So, this document is inadmissible to be read into evidence and is thus, discarded. 8. Even the insurance company could have summoned Mr. Padam Singh as its own witness to be examined on the factum of transfer but no steps were taken on behalf of the insurer in that regard. 9. So, for the aforesaid reasons, the A.O. No.223 of 2010 has no force and it is liable to be dismissed. 10. So far as the A.O. No.360 of 2010 is concerned, which has been filed by Mr. Padam Singh against fastening of liability of paying the interest, as indicated above, Mr. K.N. Joshi, Advocate, appearing on his behalf, has placed reliance on a judgment rendered by the Hon’ble Apex Court in the case of ‘L.R. Ferro Alloys Ltd. v. Mahavir Mahto & another’ (2002) 9 SCC 450 , where, in paragraph no.5, it was held that: - “5. The only contention put forth before us is that the entire liability including penalty and interest will have to be reimbursed by the Insurance Company and this aspect has not been examined by the learned single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi and Ors., this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month. Therefore, claim for compensation along with interest will have to be made good jointly by the insurance company with the insured employer. Therefore, claim for compensation along with interest will have to be made good jointly by the insurance company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault, the Insurance Company cannot be made liable to reimburse penalty imposed on the employer. Hence the compensation with interest is payable by the Insurance Company but not penalty. Following the said decision and for the reasons stated therein, we modify the order made by the High Court to that extent. The appeal is allowed in part accordingly.” 12. I do agree with the argument put forth by Mr. K.N. Joshi on this score and thus, extinguish the liability of Mr. Padam Singh to pay the amount of interest, as aforementioned, and at the same time, such liability is shifted on the shoulders of the National Insurance Company. However, the liability to pay the cost/fine, as imposed on him by the Court below, is left intact. So, after adjusting the amount of penalty, the remaining amount shall be returned to the appellant Padam Singh along with the interest earned thereon. 13. The insurance company is hereby directed to deposit the remaining amount, as imposed on it by this Court, before the Court below within a period of four weeks from today. 14. After such deposit, the entire amount shall be released in favour of the claimants as per their respective shares without asking for any security/ surety. 15. The amount, if lying deposited in this Court in any of the appeals, shall immediately be remitted back to the authority concerned forthwith. 16. With the result, A.O. No.223 of 2010 preferred by the National Insurance Company is dismissed and the A.O. No.360 of 2010 filed by Mr. Padam Singh (vehicle owner) stands disposed of in the above terms. (All pending applications also stand disposed of accordingly) 17. Let a copy of this judgment along with the LCR be sent back to the court below.