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2019 DIGILAW 1221 (JHR)

New India Assurance Co. Ltd. v. Md. Esak Ansari

2019-06-28

KAILASH PRASAD DEO

body2019
JUDGMENT : KAILASH PRASAD DEO, J. 1. This Miscellaneous Appeal has been preferred by New India Assurance Co. Ltd. against the impugned award dated 29.02.2016 passed by Motor Vehicle Accident Claim Tribunal, Hazaribagh in Claim Case No. 111 of 2007 whereby the learned Tribunal after considering the merit of the claim case has awarded the amount of Rs.3,00,000/-, in favour of the claimant Md. Esak Ansari and against appellant/M/s. New India Assurance Co. Ltd., where the offending vehicle Jeep bearing registration No. JH02-C-6205 was insured at the time of accident, with interest payable with simple interest @ 6% per annum from the date of this award. The compensation/award shall be paid within a period of 30 days, failing which, simple interest @ 9% shall be paid with effect from the date of the award. The payment of ad-interim compensation shall be deducted from the aforesaid amount. 2. Learned counsel for the appellant, Mr. Alok Lal appearing for New India Assurance Co. Ltd. has submitted that award passed by the learned Tribunal is fit to be set aside on the ground that learned Tribunal has not examined the nature of vehicle; whether it is a transport vehicle or not? 3. Learned counsel for the appellant, New India Assurance Co. Ltd. has also relied upon a judgment reported in (2018) 3 SCC 208 in the case of Pappu and others vs. Vinod Kumar Lamba and another, stating therein that onus would shift on Insurance Company only after owner of the offending vehicle pleads and proves basic facts within his knowledge that driver of the offending vehicle was authorized by him to drive the vehicle and was having a valid driving license at relevant time. 4. Learned counsel for the appellant, New India Assurance Co. Ltd. has drawn attention of this Court towards provision of Section 66 of the Motor Vehicle Act 1988 which reads as follows:- "66. Necessity of permits- (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is, actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used." 5. Learned counsel for the appellant has also drawn attention of this Court with regard to provision of Rule 70 of the Bihar Motor Vehicles-Rules, 1992, which has pari materia as the same in Jharkhand Motor Vehicles Rules, 2001 which reads as follows:- 70. Application of sub-section (1) of Section 66- The provisions of sub-section (1) of Section 66 shall apply to any motor vehicle constructed or adapted to carry more than nine persons excluding the driver. 6. Learned counsel for the appellant has thus submitted that the court below has wrongly passed Award against Assurance Company directing to pay a sum of Rs. 3,00,000/- payable within 30 days from the date of Award with simple interest @ 6% per annum from the date of this award and in default the interest rate shall be enhanced to 9% with effect from the date of Award though the statutory period to prefer an appeal under Section 173 of the Motor Vehicles Act, contemplates a period within 90 days from the date of Award and such variation in simple interest is not justified, as such, this Court may interfere with the same. 7. Learned counsel for the appellant has further submitted that there is delay of 240 days in preferring the appeal and for condonation of delay, I.A. No. 654 of 2017 has been filed to condone the delay on the ground that the Assurance Company (appellant) is under administrative control at Patna Regional Office, as such, the entire file relating to the record of the case was sent to the Patna office and thus, delay has been caused in filing the appeal. 8. Learned counsel for the appellant has further submitted that Award is bad in law, as the Tribunal without considering the offending vehicle as transport vehicle has passed an order, relying upon permit, which has been brought on record and Marked as X/6, in absence of any formal proof as the same is not a genuine document. Learned counsel for the appellant has further submitted that though the Tribunal has awarded a sum of Rs. Learned counsel for the appellant has further submitted that though the Tribunal has awarded a sum of Rs. 3,00,000/- with 6% simple interest from the date of Award but the period has been given within 30 days and thereafter the simple interest has been enhanced @ of 9% per annum from the date of award, which is wrong and cannot be allowed by the Tribunal, as such Miscellaneous Appeal may be admitted and notice be issued to the respondents. 9. Perused the record, it appears that claimant Md. Esak Ansari has met with an accident on 15.05.2006 at about 2.45 P.M. while he was going on a motorcycle and as soon as he reached near Koshma situated at H.C.C. Camp in front of Janki Hotel on G.T. Road under P.S. Barkatha, District-Hazaribagh (Jharkhand), a Jeep bearing Registration No. JH-02-C-6205 (offending vehicle) came from Barkatha side in a very rash and negligent manner and dashed with his motorcycle, due to which the claimant received serious injuries. The injured was brought to Government Hospital, Barkatha and from there he was referred to Sisir Sewa Kendra, Jail Road, East Tharpakhna, Ranchi and he was found injured, which has caused 55% permanent disability in his left leg. 10. Upon notice by the Tribunal, O.P. No. 1, owner of the vehicle has put his appearance and filed his written statement, taking objection but admitting that offending vehicle was being driven by O.P. No. 1, holding a valid driving license. The offending vehicle was duly insured with O.P. No. 2 (M/s. New India Assurance Co. Ltd.) at the time of alleged accident vide Policy No. 31/540701/39356 with effect from 26.09.2005 to 25.09.2006 though the unfortunate accident took place on 15.05.2006. The New India Assurance Co. Ltd. -O.P. No. 2 before the Tribunal (appellant herein) has also filed written statement and took various preliminary objection with regard to the non-maintainability of the claim case on the ground of law of estoppel, waiver, acquiescence. The claim is bad for non-joinder and mis-joinder of necessary parties. The Assurance Company in the written statement at paragraph-10, has categorically stated that Driver namely, Sunil Kumar Gupta was holding private licence, although at the time of accident he was driving taxi and not holding the driving license of passenger carrying vehicle. The claim is bad for non-joinder and mis-joinder of necessary parties. The Assurance Company in the written statement at paragraph-10, has categorically stated that Driver namely, Sunil Kumar Gupta was holding private licence, although at the time of accident he was driving taxi and not holding the driving license of passenger carrying vehicle. So the owner of the vehicle has violated the terms and conditions of the Insurance Policy, as such, O.P. No. 2 (Assurance Company) is not liable for any compensation. 11. Heard learned counsel for the appellant on the point of limitation as well as main appeal and perused the materials brought on record. It appears that the learned Tribunal while deciding the application filed under Sections 140 and 166 of the Motor Vehicles Act, 1988, which deals with the liability to pay compensation in certain cases on the principles of no fault liability and on application for compensation. The Tribunal has rightly taken note that the proceeding under the Motor Vehicles Act is not akin to the proceeding in a Civil Suit. Roving inquiry is not required to prove the rash and negligence on the part of the Driver. The learned Tribunal has also taken note of the fact that victim who has sustained 55% permanent disability was working as a Chowkidar at Barkattha Police Station having salary of Rs. 6080/- and agricultural income of Rs. 20,000/- per month got his left leg amputated due to rash and negligent driving of the offending vehicle by the Driver, Sunil Kumar Gupta (Opposite Party No. 1). 12. The Criminal case for act of the driver is subject matter of the FIR of Barkattha P.S. Case No. 34 of 2006 but so far benevolent legislation under Motor Vehicles Act, is the subject matter before this Court. The Tribunal has rightly assessed the amount of compensation payable to the victim of an accident out of use of the motor Vehicle and separately assessed the same as pecuniary damage (special damage). The pecuniary damage are those which the victim has actually incurred and which is capable of being calculated in terms of money whereas non-pecuniary damage (general damage) are those which are incapable of assessed by mathematical calculation. The pecuniary damage are those which the victim has actually incurred and which is capable of being calculated in terms of money whereas non-pecuniary damage (general damage) are those which are incapable of assessed by mathematical calculation. The Tribunal has thus, calculated the compensation amount under following heads:- (a) Pain and Suffering : Rs.1,50,000/- (b) Cost of attendants for 5 months at the rate of Rs.3000/- per month and special diet : Rs.50,000/- (c)Loss of enjoyment of life and other basic amenities : Rs.1,00,00/- Total amount (a+b+c) : Rs.3,00,000/- From perusal of the impugned award, it appears that the Tribunal has awarded compensation alongwith interest from the date of award instead of date of application relying upon evidence of five witnesses adduced on behalf of claimant. But in view Section 171 of Motor Vehicles Act and view of the judgment in the case of Smt. Chameli Wati and another vs. Municipal Corporation of Delhi and others reported in (1986) 4 SCC 503 the aforesaid award should be from the date of application. Apart from this there is nothing on record to suggest that offending vehicle has violated any of the terms and conditions of the Policy. The validity of the licence of driver has already been admitted by the O.P. No. 2 (appellant herein) in the Court below and O.P. No. 2 Assurance Company has not led any valid evidence on this point. Even if the driving licence is not valid the appellant has to pay and recover the compensation in the view of the case of Oriental Insurance Co. Ltd. v. Nanjappan and others, reported in AIR 2004 SC 1630 which remains no more res Integra for the present appeal. The permit has already been brought on record and there is no pleading or averment on the part of the Assurance Company before the Tribunal with regard to genuineness or correctness of the permit. The judgment cited by the learned counsel for the appellant in the case of Pappu and Ors. Vs. Vinod Kumar Lamba and another reported in (2018) 3 SCC 208 is not applicable in the facts and circumstances of the present case, as the same is with regard to the transport vehicle and not with regard to, the vehicle which is Jeep in the present appeal. The transport vehicle has been defined under Sub-section (47) of Section 2 of the Motor Vehicles Act. 13. The transport vehicle has been defined under Sub-section (47) of Section 2 of the Motor Vehicles Act. 13. Under the aforesaid circumstances while exercising power under Section 173 of the Motor Vehicles Act, 1988, it is held that the Tribunal has rightly calculated the compensation under two heads; (A) Pecuniary (special damage) and (B) non-pecuniary damage (general damage). Under pecuniary damage (special damage) expenses related to (I) treatment, hospitalization, medicine, transportation, nursing, food and miscellaneous expenditures, (II) Loss of earning (other gains) which the injured would have made had he not been injured comprises (a) Loss of earning during the period of treatment (b) Loss of future earning on account of permanent disability (III) Future medical expenses. Non-pecuniary damage is, (1) the damage for pain, suffering and trauma as a consequence of the injuries (2) Loss of amenities (and/or loss of prospects of marriage) and (3) Loss of expectation of life (shortening of normal longevity). The Tribunal has rightly taken note of guidelines of the Hon'ble Supreme Court's decisions in the case of Nagrajappa v. Divisional Manager Oriental Insurance Co. Ltd., reported in AIR 2011 SC 1785 , Raj Kumar vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 and D. Sampath Vs. United India Insurance Co. Ltd. and Anr., reported in AIR 2012 SC 544 but instead of the awarding the same from the date of application, the learned Tribunal has awarded the same from the date of award, which has been passed on 29.02.2016 though the application was filed in the year, 2007 itself as it appears from the Claim Case No. 111 of 2007 for the accident occurred in the year, 2006. 14. Considering the same this Court is inclined to enhance the rate of interest in view of the guidelines of Supreme Court in the case of Smt. Chameli Wati and another vs. Municipal Corporation of Delhi and Ors., reported in (1986) 4 SCC 503 and Sanjay Kumar vs. Ashok Kumar and Another, reported in (2074) 5 SCC 330 from the date of application itself, since approximately 13 years have lapsed and the claimant has suffered 55% permanent disability, has been deprived of benevolent legislation. The proceeding in the Claim Case lingered for all these years for no fault on the part of the claimant. The proceeding in the Claim Case lingered for all these years for no fault on the part of the claimant. Under the aforesaid circumstances and relying upon the judgment, as reported in (1997) 1 PLJR 1010 , in the case of Oriental Insurance Company vs. Most. Chameli Devi and another, the same is hereby allowed from the date of application with 9% simple interest per annum. The limitation petition filed vide I.A. No. 654 of 2017 for condonation of delay of 240 days is hereby allowed in view of explanation found to be satisfactory. 15. Accordingly, this appeal is hereby dismissed with aforesaid observation and modification in the award. The rate of interest is 9% simple from the date of application payable to the claimant in view of Section 171 of the Motor Vehicles Act. 16. The statutory amount deposited by the Assurance Company before this Court shall be transferred to the Motor Vehicles Claim Tribunal, Hazaribagh, who shall issue notice to the claimant and shall reimburse the same after due verification within a period of two months from today as notice has not been issued to the claimants by this Court. 17. The Secretary, District Legal Services Authority, Hazaribagh is directed to look into the matter in all such cases of poor victims, who have, no legal knowledge or being deprived of benefit of such legislation in pursuing the claim case and no such execution cases are filed for payment/execution of award.