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Uttarakhand High Court · body

2016 DIGILAW 507 (UTT)

New India Assurance Company Ltd. v. Kriti Ram

2016-08-22

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. 1. Having heard learned Counsel for the parties, it transpires that a bus of Uttarakhand State Road Transport Corporation bearing no. UA07K-5722 collided with TATA Truck No. UP-07H-0535 on Roorkee Haridwar Highway at 10.30 PM on 12.7.2009 with the result that the driver of the truck, namely, Mr. Vimal Dev, lost his life during the course of treatment of his injuries caused in such accident. The bus was insured with the Oriental Insurance Company (respondent no. 7), while the truck was insured with the New India Assurance Company Ltd. (appellant). When the petition was instituted by the parents/ brother of the deceased in the Court of Workmen’s Compensation Commissioner/District Magistrate, Uttarkashi, it was adjudicated fastening the liability to the extent of 50 per cent on each of the insurance companies of the vehicles for the consolidated amount of Rs. 4,39,900/- along with 6 per cent per annum simple interest from the date of institution of the claim petition. 2. Learned Counsel of the appellant has argued that First Information Report was lodged against the driver of the bus by Mr. Praveen Ghai, the owner of the truck, on 13.7.2009 at 6.20 AM and it culminated into submission of charge-sheet against the driver and he is facing the trial. So, in the backdrop of the fact of lodging the FIR and submission of the charge-sheet, the liability must have been fastened upon the insurance company of the bus only because the accident had occurred on account of the exclusive negligence of the bus driver. 3. On the other hand, learned Counsel of the Oriental Insurance Company has drawn attention of this Court towards the provision of Section 3 of the Workmen Compensation Act, which contemplates that if personal injury is caused to (an employee) by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this chapter. So, the total responsibility should have been fastened upon the insurer of the truck because the employee driver Mr. Vimal Dev had lost his life during the course of his active employment while he was driving the TATA truck. 4. As regards fastening of the whole liability against the insurer of TATA truck, the impugned judgment rendered by the concerned authority has not been challenged. Vimal Dev had lost his life during the course of his active employment while he was driving the TATA truck. 4. As regards fastening of the whole liability against the insurer of TATA truck, the impugned judgment rendered by the concerned authority has not been challenged. So, it is difficult for this Court to fasten the whole liability against the insurer of the truck. Undoubtedly, the driver Vimal Dev lost his life during the active employment of doing his job on the fateful date and time. So, the matter seems to be covered under Section 3 of the Act. 5. As regards shifting of the liability upon the insurer of the bus on the ground that Mr. Praveen Ghai lodged the FIR, which culminated into submission of the charge-sheet, this Court feels that upon the above chain of events in themselves are not sufficient to fasten the whole liability against the insurer of the bus because Mr. Ghai being a vigilant employer lodged in the FIR soon after the accident just in the dawn of the next day in the concerned police station. But in case of Government buses, there remains always a dilemma before the driver/conductor or the authorities concerned whether to lodge the FIR or not and report the incident in the police station. Many often, it becomes difficult for the driver or the conductor to muster courage for lodging the FIR in the concerned police station quickly after such accident. As regards the higher authorities, it is always a tendency to shift the liability from one to another for taking the decision for such purpose. Therefore, failure to lodge the FIR from the side of driver/conductor or any officer concerned of the Transport Department of the Government by itself is not sufficient to hold them guilty for the incident. More so, when the driver Mr. Rakesh Kumar has appeared in the witness box before the Court below and deposed the narratives of the incident, so much so he could make out at the spot to do the arrangements for picking out the injured driver of the bus from his seat and shift him to the hospital. 6. Map (if any) prepared by the Investigation Officer has not been produced on the file, which could have been helpful in estimating the proportion of negligence of both the vehicles. 7. 6. Map (if any) prepared by the Investigation Officer has not been produced on the file, which could have been helpful in estimating the proportion of negligence of both the vehicles. 7. Therefore, I think that there is no infirmity in fastening the liability to the extent of 50 per cent on the insurance companies of each of the vehicles. 8. As regards the interest of 6 per cent per annum, the same has been made leviable from the date of institution of the petition. I think that on this score also, there is no fault in the impugned judgment. 9. Learned Counsel of the insurance company has cited a judgment of the Hon’ble Apex Court rendered in the case of National Insurance Co. Ltd. v. Mubasir Ahmed & Another, (2007) 2 ACC 374, wherein the rate of interest @ 12 per cent was awarded from the date of accident and the same has been held to be wrong. But this precedent is not applicable here in the present controversy for the reason that, firstly, the rate of interest in the instant case is 6 per cent and secondly, the same has not been made exigible from the date of accident, but from the date of institution of claim petition. 10. Hon’ble Apex Court has held that the rate of interest which was made leviable from the date of incident is wrong because in the judgment of the trial court, there was no indication as to when it became due and in such eventuality, the Hon. Apex Court was of the view that it has to be reckoned from the date of adjudication of the claim. Here, in the instant case, the learned trial court has made the rate of interest applicable from the date of institution of the petition and the rate is also meagre i.e. 6 % per annum. 11. The rate of interest should be leviable from the date of institution of the claim petition is based on the sound reasoning because if it is not done, then the respondents/insurance companies will take every liberty to prolong the litigation as long as they can. 12. So, in view of what has been set forth above, I find no merit in this appeal. It is hereby dismissed. Let the LCR be sent back.