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2021 DIGILAW 657 (KAR)

Divisional Controller, NWKRTC Gokul Road, Hubballi v. Akkammahadevi, W/o Maruti Mundargi

2021-06-10

KRISHNA S.DIXIT, PRADEEP SINGH YERUR

body2021
JUDGMENT : This appeal by the owner of offending bus lays a challenge to the Judgment & Award dated 28.08.2014 whereby the Additional District & Sessions Judge at Gadag having favoured the claim in M.V.C. No.48 of 2013 has awarded a compensation of Rs.18,13,044/with interest at the rate of 6% per annum, subject to a usual condition of bank deposit of part money for a period of five years; the challenge is on the ground that the awarded liability needs to be fastened on the 7th respondent-insurer with whom the appellant had insured its offending bus. 2. After service of notice, the respondent-insurers having entered appearance through their panel counsel oppose the appeal vehemently contending that the concerned insurer, who has been now impleaded as the 7th respondent herein pursuant to order dated 29.03.2021, cannot be made liable in the absence of its impleadment before the Tribunal itself; the learned Sr. Panel Counsel for the other insurer namely Shriram General Insurance Company Limited, strenuously argues that the dispute is essentially between the appellant and it’s insurer, and therefore, he is miles away from the liability. 3. Having heard the learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter as under and for the following reasons: (a) Ordinarily, the liability of the owner of the insured offending vehicle is vicariously placed on the insurer by virtue of doctrine of subrogation/indemnification; ideally speaking, the insurer ought to have been impleaded by the claimants to the claim petition itself so that the scope for argument of fraud & collusion between the two sides can be avoided; any way, these are not the grounds on which the appeal is being resisted by the impleaded insurer respondent No.7 herein; this apart, the said insurer was impleaded in M.V.C. No.2440 of 2012 on the application of the appellant herein before the MACT at Belgaum; however, this claim petition was withdrawn by the claimants and in lieu thereof the one at Gadag i.e. M.V.C. No.48 of 2013 was pressed. This view of ours finds support from the observation of the MACT at paragraph 18 of the impugned award. This view of ours finds support from the observation of the MACT at paragraph 18 of the impugned award. (b) There is force in the contention of the panel counsel for the appellant-Transport Corporation that the very same accident had given rise to another claim in M.V.C. No.1314 of 2013 wherein the 7th respondent-insurer herein was a party as the 2nd respondent therein and further that it has also satisfied the award made on 05.12.2015; that being the position, it is not open to the 7th respondent herein to contend that it cannot be made liable at all in the cognate claim cases; no law nor any ruling to support the contra view is pressed into service before us by the learned panel counsel representing the said insurer. (c) There is some force in the contention of the 7th respondent-insurer herein that there is no justification for the appellant to brook delay in filing the appeal wherein his impleadment is granted, and therefore, the liability for accrual of the interest during this delayed period cannot be fastened on him; the application of the appellant in I.A. No.3 of 2018 has been favoured by a Coordinate Bench of this Court vide order dated 29.03.2021 subject to the rider that the liability for payment of interest that has accrued during the delayed period shall rest on the shoulders of the appellant itself and not on this insurer. In the above circumstances, this appeal succeeds; the impugned Judgment & Award having been modified, the awarded liability is fastened on the 7th respondent-insurer viz., the Oriental Insurance Company Limited, subject to the rider that the interest that has accrued during the delayed period of 1465 days brooked in filing the appeal shall rest on the shoulders of the appellant itself and not passed on to the said respondent. We are pained to see that the award amount was deposited in the Registry of this Court by the appellant-Transport Corporation, when this legal battle is waged essentially against only the 7th respondent-insurer, the claimants being miles away from the battle field; the bread winner of the family of the claimants was dead and such death brings a train of problems; that being the position the appellant ought to have sent the award amount to the claimants immediately, instead of depositing it in the Registry, where it did not earn interest; there is no offer by the appellant that this amount be released in favour of the claimants. In the special circumstances, the deposit of the amount shall not halt the accrual of interest and therefore till this amount reaches the hands of the claimants they are entitled to interest at the rate awarded by the Tribunal thereon. The Registry is directed to transmit the amount in deposit to the MACT which, in turn, shall immediately release it in favour of the claimants after ascertaining their whereabouts and report compliance to the Additional Registrar General of this Court, forthwith; delay if brooked shall be viewed seriously against the concerned officials of the Registry of the Court below. It is open to the appellant-Transport Corporation to enforce the shifted liability against the 7th respondent-insurer by moving the jurisdictional MACT in view of Apex Court decisions in National Insurance Co. Ltd. Vs. Challa Upendra Rao and Others (2004) 8 SCC 517 and Rani Vs. National Insurance Company (2018)8 SCC 492 , without any separate suit. I.A. No.1 of 2019 pales into insignificance in view of disposal of the main matter. Costs made easy.