The Senior Divisional Manager New ... vs Smt Kamla Devi And Others
2017 Latest Caselaw 5152 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 27
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2294 of 2011
 

 
Appellant :- The Senior Divisional Manager New India Assurance Co. Ltd.
 
Respondent :- Smt Kamla Devi And Others
 
Counsel for Appellant :- Amit Manohar
 
Counsel for Respondent :- Tarun Agrawal
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1.  Heard Sri Amit Manohar, learned counsel for appellant and Sri Tarun Agarwal, learned counsel for Insurance Company.

2. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by Insurance Company, being aggrieved by order dated 4.4.2011 passed by  Motor Accident Claims Tribunal / Additional District Judge, Court No.2, Firozabad in MACP No. 1 of 2007 ( Smt. Kamla Devi and others Vs Senior Divisional Manager, The New Indian Insurance Company Ltd. and others) awarding a sum of Rs.3,10,500/- for death of breadwinner of the claimants - respondents.

3. The brief facts of the present case are that the applicants are the heirs of deceased (Akhilesh Kumar) who met with an accident on 17.11.2006. He was returning from Firozabad with Bhanwar Singh and when they were on the highway between Shikohabad to Firozabad. When they reached near village Indumai, he took off his vehicle from the main road and they went to Kachhi Sadak   on narrow  patri ( road) being sand road. Bhanwar Singh was talking on his mobile when a tractor trolley  coming from Shikohabad bearing Tractor Trolley No. UP-80 AE-1984 at about 7.00 p.m. dashed with the said motorcycle which was stationary and hit the deceased who were fell down.  Police took both the injured to the hospital but the deceased scummed to the injures. FIR was lodged against the driver of tractor one  Sukesh son of Moolchand. Deceased-Akhilesh Kumar was aged about 21 years and earning a sum of Rs. 3,000/- per month by working on liqueur shop and he had his own agricultural land also. Respondent nos.1- Insurance Company and Respondent No.2- owner appeared and filed their reply of rebuttal.  It is an admitted position of fact that the Insurance Company did not examine anybody as its witness whereas Naresh Kumar has examined himself as DW-1 and has categorically mentioned that the driver was the person against whom the charge sheet was laid. It is an admitted position of fact that two persons died in the accident and that the vehicle was driven by a duly licenced person.

4. Tribunal granted a sum of Rs.3,10,500/- to the claimants who are the mother and two minor brothers  who were dependant on the deceased and are heirs / representatives of the deceased.

5. The main submission advanced by counsel for appellant is that though there was a prompt FIR, number of  tractor trolley  which appeared in the FIR and the charge-sheeted tractor trolley are different which raised doubt that there is collusion between driver, owner and claimant. The insurer has been wrongly saddled with liability only because the vehicle which is said to be involved in the accident, was insured with it but was later on planted and therefore, it is submitted that when the involvement of the vehicle is doubtful, the Insurance Company cannot be saddled with any liability.

6. Sri Amit Manohar-Advocate has vehemently submitted that the deceased was driving the vehicle at high speed and he had contributed to the accident having taken place and Tribunal erred in not considering it to be a case of contributory negligence despite the same being pleaded and proved.

7. Sri Amit Manohar-Advocate has vehemently contended that  as per policy condition, they are not liable to indemnify the owner as the vehicle involved in the accident is different.

8. It is further contended by Sri Amit Manohar-Advocate that it is proved that there was breach of policy of Insurance conditions are concerned,  he submits that in Oriental Insurance Company Limited Vs. Brij Mohan and others, 2007 (3) T.A.C. 20 (SC) the Hon'ble Supreme Court has held that if the tractor trolley is being used for commercial purpose other than agriculture no liability could be fastened on Insurance Company.

9. It is further submitted by counsel for appellant that Tribunal on assumptions and suppositions had allowed the claim petition and as such the award of the Tribunal is wholly illegal and erroneous. It is submitted that tractor trolley was used for commercial purposes and has to be treated as a goods carriage as defined under Section 2(14) of the Motor Vehicle Act, 1988. Section 66 of the Motor Vehicle Act provides that goods carriage cannot ply on the road without a valid permit. The owner of the tractor trolley has not filed the permit before the tribunal and as such the tribunal ought to have drawn an adverse inference against the owner of the tractor trolley. It is further submitted that Tribunal without considering this aspect of the matter has fixed the liability on the appellant and as such the award of the Tribunal is wholly illegal and erroneous and is contrary to the law laid down by the Apex Court in Natwar Parikh & Company Ltd. Vs. State of Karnataka and others, AIR 2005 SC 3428 and National Insurance Company Ltd. Vs. Challa Bharatamma and others, AIR 2004 SC 4882 and view to the contrary taken by the Tribunal is illegal and erroneous.

10. It is further submitted by Advocate for appellant that driving licence of Suresh Chand, driver of the tractor trolley at the time of the alleged accident was valid for driving Tractor(Pvt) . Since the tractor was attached with trolley for all purposes it will be treated as a goods carriage as defined under Section 2(14) of Act, 1988 and in order to drive such type of vehicle the driver should be  authorized to drive a transport vehicle. Since the driving licence of Suresh Chand did not have any endorsement for driving transport vehicle, it was established that the tractor trolley was being driven by a driver who did not have a valid driving licence and as such the liability to pay compensation would be of the owner of the vehicle and not the appellant Insurance Company. But view to the contrary taken by the Tribunal is wholly illegal and erroneous.

11. It is submitted by learned counsel for respondent claimant that it is an admitted position of fact that no evidence  in rebuttal was led by the Insurance Company so as to prove the objection raised before Tribunal and this Court about the involvement of vehicle in question. FIR is not sacrosanct document and it may be, that, during investigation, the Investigating Authority might have come to a different conclusion and that is what is reflected in the judgment of Tribunal and the charge sheeted vehicle is the same whose  driver and owner are made parties. Engine and chassis numbers were same. The same tractor trolley  was released by the Court during investigation.  Driver had valid driving licence, permit was also valid and vehicle was insured.

12. Rule of main purposes and the concept of fundamental breach to allow the defence available to the insurer are time and again postulated by Apex Court and this Court, can it be said that the vehicle was not same which was involved in the accident. It is an admitted fact that no evidence is led nor even the police constable is examined. Principles for avoiding  the liability under Section 146 of Act, 1988 and 147 of Act, 1988   would not permit this Court to take a different view than that taken by the Tribunal. The reason being Tribunal being a fact finding Court the Tribunal has considered the driver of vehicle insured by New India Assurance Company Ltd. to be the person driving the vehicle involved in the accident. The tractor driver Suresh has not been cross examined. FIR also does not say about any other vehicle. Owner has been examined on oath as DW-1 and has been cross examined by counsel for Insurance Company but nothing could be proved to the contrary so as to bring home the contention that the vehicle was different. Unfortunately, charge sheet would be proof of the involvement of the vehicle. Charge-sheeted driver was granted bail by the Court.

13. While going through the written statement  of the Insurance Company, the factual data that the vehicle was not involved is also not pleaded, despite that this Court has examined the said submission also , the technical  inspection filed by Insurance Company belies their theory that the insured vehicle was not involved  in the accident in that light of the matter this ground has to be rejected. Even in their written statement, Insurance Company has not raised this issue however the first information report, postmortem report and order releasing the tractor trolley involved in the accident and statement of driver proves involvement. When all these facts are considered in totality and they conclusively prove that vehicle was involved in the accident and, therefore, this submission without any proof is rejected. When the charge sheet is filed the non naming of vehicle in FIR is thereof, also and hence the statement made by maker of the FIR cannot be admitted in the evidence unless the same is proved by cogent evidence thus, it can be said that vehicle was involved in the accident. 

14. This takes this Court to the second of learned counsel for appellant as to contention whether the deceased was negligent and or the finding of fact about negligence requires any interference or requires to be confirmed.

15. It would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.

16. The term negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to cause physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, negligence of drivers is required to be assessed.

17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed  without caring to notice that  another vehicle was crossing, then the conduct of driver necessarily leads to  conclusion that vehicle was being driven by him rashly as well as negligently.

18. 10th Schedule appended to Motor Vehicle Act, 1988 contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle should slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck  was driving vehicle on the left side of road would not absolve him from his responsibility to slow down  vehicle as he approaches  intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection. This is termed negligence. .

19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330 from the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.

20. In light of the above discussion, I am of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, Courts cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits.

21. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part of driver of another vehicle.

22. In case of contributory negligence, it has to be proved that the duty cast on the drivers is not breached and even if breached what is the resulting damages. If the claimants satisfy the Court that Jacob Mathew V/s. State of Punjab (supra) holds in paragraph 10, 11 and 48 that on the evidence that is produced before the Tribunal the main three essential components as narrated above are satisfied the driver of the other vehicle has to be considered to have not taken due care while driving and if the said fact is not proved by cogent evidence in rebuttal the author would be not the deceased but the other vehicle driver. . The evidence must be properly scrutinized. The route cause of the accident must be proved as held in G. Dhanasekar Vs. Metropolitan Transport Corporation Ltd., (2014) 14 SCC 391 .In light of aforesaid position of Law the factual matrix will have to be looked into. The injured died on the spot. He was standing on the road which was at the extreme left. The tractor trolley came from behind and could not control itself. Submission is that one of the persons who had seen the accident was not examined can be accepted. Evidence of Dharmendra Sharma- PW-1 who had taken the injured to the Hospital the fact that the driver and the owner did not appear before the Tribunal will permit this Court to hold that the impact was such that the vehicle was being driven rashly and negligently.

23. The finding of fact of Tribunal and going by facts it is clear that the tractor dashed the deceased and death occurred on the spot and, therefore, no negligence can be attributed to the deceased, hence the said question is also answered against the Insurance Company. Recently the Apex Court in several cases relating to contributory negligence has decided and enanciated the principles that where no evidence is produced to prove negligence on the part of claimants or the drivr of the vehicle, the claimant of the deceased cannot be said to have contributed to the accident having taken place. I am fortified with my view by the findings of fact given by Tribunal in its well reasoned finding of fact the deceased had taken absolute care and had kept his vehicle on the extreme left and the vehicle was stationary hence it cannot be said that deceased were in any way contributors to accident having taken place. Reliance is placed by the undersigned on the judgment of Syed Sadiq etc. Vs. Divisional Manager, United India Insurnace Company, AIR 2014 Supreme Court 1052 ( paragraph 18 of the said judgment).

24. Learned counsel for the appellants has also raised the issue regarding the breach of policy conditions even if this Court holds that the owner had committed breach of policy conditions. It will have to viewed and appreciated whether the alleged breach was a fundamental breach permitting Insurance Company to avoid liability.

The principles for deciding whether it was a fundamental breach of policy or not, provisions of Section 147 of the Motor Vehicles Act which reads as follows : -

" 147. Requirements of policies and limits of liability. --

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--

(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required--

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2)Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:--

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

(4)Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."

25. While going through the record the contention that the vehicle did not have permit to ply on the road it was being played and was being plied in breach of policy condition and that the driver was not having proper driving licence, cannot be sustained. The reason being the permit was also produced and even if it is held that there was no permit of tractor trolley  it is held by the Apex Court in  several decisions that not having a permit is not fundamental  breach of policy.

26. The decision in National Insurance Company Ltd. Vs. Chinnamma and others, 2004(3) T.A.C. 577 can not come to the aid of Insurance Company In the facts of this case, it was not proved that the vehicle was used for commercial purposes the said judgment will not apply rather it is proved that the vehicle was used for carrying agricultural goods when it met with accident. Even in Oriental Insurance Company Limited Vs. Brij Mohan and others ( supra) the facts of that case cannot be applied as the liability has been fixed after holding that there was no breach of policy conditions. The driving licence question has also been answered by the Apex Court recently and, therefore, just because there was no endorsement it cannot be said that there was breach of policy conditions. The three questions on which the Insurance Company wants to avoid their liability is one that the vehicle did not have permit. Second the driver had the licence to drive only LMV vehicle but did not have the endorsement and thirdly that the tractor was used for non agricultural purposes. All these three issues are answered against the Insurance Company as herein below.

27. The issue of the tractor trolley begin used in breach of policy conditions is answered by the Tribunal and I find support from the recent judgment of Apex Court reported in 2017(8) SCC 590 gives the answer. The Apex Court in Santlal Vs. Rajesh and others, (2017) 8 SCC 590 relying on the decision of Apex Court in Mukund Dewangan Vs. Oriental Insurance Company Ltd., AIR 2017 (SC) 3668 relying on has answered the questions raised herein by the counsel for appellant and, therefore, all the three grounds are rejected. The vehicle in this case was not carrying any goods or passenger for hire or reward. It was not proved by the Insurance Company whether it was for any other purposes in absence of any evidence, it would be presumed that there was no breach of conditions of policy. I am fortified in my view by the judgment of Apex Court in Fahim Ahmad Vs. United India Asurance Company Ltd., 2014 SC 2187 and the recent judgment of this High Court in First Appeal From Order No. 501 of 2017 ( Veer Krishna Singh and another Vs. Sandeep Singh and another ) decided on 28.2.2017 and First Appeal From Order No. 1532 of 2012 ( The Oriental Insurance Company Ltd. Vs. Smt. Rama Beti and others) decided on 22.2.2017 relying on the Apex Court decision that permit is not sine qua non and even if it is not there, it does not amount to fundamental breach of policy.

28. It is contended by the appellant insurance company that the Tribunal should have taken notional income of the deceased and that the multiplier should have been that of the age of the mother and that the claimants were not dependant on the deceased. He has relied on judgments pronounced in case of Donat Louis Machado and others Vs. L. Ravindra and others 2000(1) T.A.C. 208(SC) and Mohd. Shakir Ali and others Vs. United India Insurance Company Ltd and others, 2006 (1) T.A.C. 397.

29. All these judgments are answered by the latest decision of Apex Court in Munna Lal Jain and Another Vs. Vipin Kumar Sharma and Others, 2015 Law Suit (SC) 536 and, therefore, Tribunal cannot be said to have been committed any error in calculating the compensation and applying multiplier. Tribunal considered the income to be Rs.3,000/- per month as the deceased was a labourer and deducted ½ relying on judgment of this Court in Laxmi Devi and another Vs. Mohd. Tabbar and another, JCLR 572 (SC) . Thus, the said amount cannot be said to be fanciful. Tribunal has deducted ½ amount and, therefore, the submission that Tribunal has deducted 1/3, cannot be accepted. The submission that the multiplier of 17 granted by Tribunal is bad, cannot be sustained as the age of deceased was in the bracket of 21 to 25 years as per the latest decision of Apex Court reported in Sarla Verma Vs. DTC, (2009) 6 SCC 121 has held that the multiplier would be of the deceased which has been rightly applied by the Tribunal and no fault can be found with the same. I am even supported in my view by the judgment of the Apex Court in Munna Lal Jain and another Vs. Vipin Kumar Sharma and others, 2015 Law Suit (SC) 536 wherein it has been held that the age of the deceased should be considered for grant of multiplier. Hence, grant of the said amount of Rs.3,06,000/- cannot be said to be more. On the contrary, Tribunal has been more conservative and has not granted any amount under the head of future income.

30. It is contended that the brothers are not entitled to file the claim petition as they are not dependants on the deceased. Question that the brothers cannot file claim petition and are not dependent is no longer res-intigra and the provisions of Section 166 of Act, 1988 holds that it would be the legal representative who should be entitled. Section 166 reads as under :

"166. Application for compensation.--

(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. 1[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.

Thus, the said submission is also rejected.

31. Tribunal has awarded interest at the rate of 6% per annum on the amount of compensation from the date of filing of claim petition. It is contended that interest at the rate of 6 % is on much lower side and it should be 9 %.

32. We find in recent authorities, Courts have held that appropriate rate of interest should be 9%.

33. 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."

34. 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.

35. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC 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.

36. In Shashikala and Others Vs Gangalakshmamma 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.

37. 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 %.

38. 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 %.

39. 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.

40. 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 12% by 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).

41. In view of above, the rate of interest in the present case, 6 % awarded by Tribunal also cannot be justified and interest should be paid at 9 % per annum. It is submitted by the counsel for the claimants - respondents that rate of interest at the rate of 6% could not have been granted. He has relied on several authoritative pronouncement and has also relied on National Insurance Company Ltd. Vs. Smt. Vidyawati Devi and 2 others, decided on 27.7.2016 ( A Division Bench of Judgment of this Court ) wherein (Hon'ble Dr. Kaushal Jayendra Thaker, J.) was a member, Court contend that even without there being a formal application, this Court can grant and vary the compensation awarded.

42. Appeal is dismissed. Judgment and award dated 4.4.2011 passed by Tribunal is confirmed except that the different in rate of interest be deposited by the Insurance Company within 12 weeks from today before the Tribunal and the Tribunal shall disburse the said amount to the claimants without keeping them in fixed deposit.

43. Interim order, if any, stands vacated.

44. Amount awarded by Tribunal not deposited to be deposited with interest within 12 weeks from today with 9% interest.

Order Date :- 7.10.2017

Mukesh