The New India Assurance vs Smt. Rajpati Devi & Another
2017 Latest Caselaw 7132 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 27
 

 
Case :- FIRST APPEAL FROM ORDER No.1472 of 1999
 
Appellant :- The New India Assurance Company
 
Respondent :- Smt. Rajpati Devi & Another
 
Counsel for Appellant :- K.S. Amist,
 
Counsel for Respondent :-  Amit Kumar Sinha, Deepali Srivastava Sinha, SC, V.C.Diyal
 
				AND
 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No.43 of 2000
 
Appellant :- Smt.Rajpatti Devi
 
Respondent :- Kandhai Lal And Ors.
 
Counsel for Appellant :- V.C.Dixit, V.D. Ojha
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Both these appeals arise out of the same accident.

2. First Appeal From Order No.1472 of 1999 is preferred by Insurance company of tractor whereas F.A.F.O. (Defective) No.43 of 2000 is preferred by legal representatives of the deceased, who died in the vehicle accident.

3. On the fateful day, some children were playing in the garden when the opponent's driver driving the tractor rashly and negligently dashed with the deceased, who was 12 years of age. The F.I.R., Panchnama and Charge-sheet all were filed along with M.A.C.P. No.544 of 1995 claiming a sum of Rs.3 Lac. As against this, at the end of the trial, the claims Tribunal awarded as sum of Rs.1,30,000/- with 12% rate of interest. This has aggrieved the Insurance company as well as the claimant.

4. As per the judgment of the Apex Court in UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SCC 948, it is held that the appellant court should decide all issues raised in the appeal.

5. I have perused the record which is available with me which, according to the order 41 Rule 24 of C.P. Code, 1908, is appropriate to decide both these appeals and hence both these appeals are taken up for final disposal.

6. It is submitted by the learned counsel for the Insurance company that Tribunal has erred in holding the Insurance company liable through there is breach of Section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"). It is further submitted that the accident did not take place in public place but was in a private grove and, therefore, they are not liable. He has placed heavy reliance on Section 2 (34) of the Motor Vehicles Act to bring whom this challenge.

7. It is further contended that on the death of child of 12 years, Rs.1,30,000/- awarded in the year 1995 is excessive and calls for interference. It is further submitted that the rate of interest even in those days could not have exceeded more than 7/9 percent and he has placed heavy reliance on the decision of the Apex Court in Kaushnuma Begum Vs. New India Assurance Company Limited, 2001 LawSuit (SC) 6.

8. Thirdly, it is submitted that the driver of the tractor was not at all negligent but the negligence was of the child, who did not take any care or caution though the child saw the tractor coming.

9. As against this, the appellant in claim petition no.43 of 2000 has contended that the income has been considered less and he has contented that the Tribunal has erred in granting a sum of Rs.1,30,000/- only. He has contended that the claimants were entitled to the claimed amount of Rs.3 Lacs with interest as per decision of the Apex Court.

10. Having heard learned counsel for the parties, it is more pertinent now to go to the place of the accident. It was a playground where people had ingress and egress rights and, therefore, it would be necessary to see whether the submission made by the counsel for the Insurance company that the accident occurred in a private place is sustainable or not. Section 2 (34) reads as under:-

"2(34) "public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."

11. In that view of the matter, when children were permitted to play in that playground, the tractor was allowed to come and go. Can it be said that it was not a public road? In that view of the matter, no further discussion requires to be made as this is a claim for compensation under Section 166 of the Motor Vehicles Act. It has been time and again held that where there is egress of people and people are permitted to come and go, the said place cannot fall within the definition of the word 'private road'.

"2. Definition is very wide.-- The definition of "public place" is very wide. A perusal of the same reveals that the public at large has a right to access though that right is regulated or restricted. It is also seen that this Act is beneficial legislation, so also the law of interpretation has to be construed in the benefit of public. In the overall legal position and the fact that if the language is simple and unambiguous, it has to be construed in the benefit of the public; the word "place", wherever used as a right or controlled in any manner whatsoever, would attract Sec.2 (24) of the 1939 Act. In view of this, the private place used with permission or without permission would amount to be a "public place". Thus the expression "public place" for the purpose of Chapter VIII of the Motor Vehicles Act, 1939 will cover all places including those of private ownership where members of the public have an access whether free or controlled in any manner whatsoever."

12. The distinction between private place and public place is not very important for the purpose of liability in a motor accident claim as the policy nowhere stipulates or distinguishes of private liability into so called private places. The ownership of a place when the accident occurred is absolutely not relevant and such a garden cannot be said to be a private place. In that view of the matter, this submission of the counsel is rejected.

13. This takes this Court to the issue of quantum. The learned Tribunal has granted Rs.1,30,000/-. The Apex Court recently has held that minimum Rs.1,52,000/- should be granted for children below the age of 15 hence the said submission of the counsel for the Insurance company is rejected and the contention of the claimant's counsel is accepted. Additional amount of Rs.22,000/- will have to be granted in favour of the appellant - Smt. Rajpatti Devi of First Appeal From Order Defective No.43 of 2002.

14. This takes this Court to the last contention that the rate of interest should not have been 12%. While dealing with the issue of interest, I find in recent authorities, Courts have held that appropriate rate of interest should be 9 percent.

15. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590, where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-

"The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8% per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/ 1255/2011: (2011) 14SCC 481. Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."

16. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366, where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9% interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.

17. In Kalpanaraj and others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC 764, where accident took place on or before 1994, High Court had awarded interest at the rate of 9% per annum which was challenged that it is on higher side. Court upheld said rate of interest.

18. In Shashikala and Others Vs Gangalak-shmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9% rate of interest from the date of claim petition till the date of realization.

19. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8% . Accident took place on 27.11.2016. It was held that 8% interest is on lower side and it should be 9%.

20. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6%. Court held that it is on lower side and it should be 9%.

21. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9% interest.

22. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15% interest which was reduced to 9% Gujrat High Court. Court held that it is on higher side and awarded 9% interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).

23. Unfortunately, it goes without saying that Motor Accident Claim matters could not have been dismissed in default as has been held by Apex court. However, on that count we do not think that Insurance Company can benefit as monies were lying with the Insurance Company and therefore, rate of interest as applicable as per recent trend and as per repo rate as per decision in National Insurance company Limited Vs. Chintan Arun Kumar Raval & another, in First Appeal No.2440 of 2014 and other matter decided on 16.9.2014 by a Division Bench of High Court of Gujarat (comprising of Hon. Mr. Justice M.R. Shah and Hon.Dr. Justice K.J. Thaker), wherein it has been held "that it is a discretion of the Court to decide the rate of interest but has to be as per prevalent rate of interest which would be given by the banks at that time. The rate of interest shall be 9% from the date of filing of the claim petition till realization". Hence 9% rate of interest would have to be awarded.

24. The appeal No.1472 of 1999 is allowed on the premise of the interest which should be 9% and not 12%. The claimant's appeal No.43 of 2000 is allowed. An additional sum of Rs.22,000/- with 9% interest is granted from the date of filing of claim petition till the decision in the claim petition. However, thereafter, it would be 6%.

Order Date :- 20.11.2017

Irshad