Allahabad High Court
New India Assurance Co. Ltd. Alld. vs Smt. Ishrat Parveen & Ohters on 22 November, 2018
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 18
Case :- FIRST APPEAL FROM ORDER No.652 of 1992
Appellant :- New India Assurance Co. Ltd. Alld.
Respondent :- Smt. Ishrat Parveen & Ohters
Counsel for Appellant :- Kartikey Saran
Counsel for Respondent :- A.C. Tewari,A.K. Sinha,Ram Singh,S.K. Mishra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. The New India Assurance Co.Ltd. has felt aggrieved by the award passed by the Tribunal awarding a sum of Rs.1,55,000/- with 12% rate of interest to the heirs of the deceased, who had filed claim petition no.294 of 1989. Several grounds of challenge have been raised in the memo of appeal. The vehicle insured with the appellant was a truck and the accident took place between the truck and bus of UPSRTC. None has appeared for UPSRTC today.
2. The grounds of appeal raised are that the accident was caused due to contributory negligence on the part of both the drivers and the Tribunal has committed an error in holding the truck driver to be the author of the accident. The driver of the vehicle was not having proper driving licence and the rate of interest at 12% is exorbitant.
3. The submission that the driver did not have proper driving licence also falls to the grounds as the driving licence of the driver has been produced and it was for the said truck and in absence of anything to the contrary, the said ground is also rejected.
4. The New India Assurance Co. Ltd. has challenged the 12% rate of interest. The rate of interest should be 9% is the submission made by the learned counsel for the appellant.
5. Tribunal has awarded interest at the rate of 12% per annum on the amount of compensation from the date of filing of claim petition. It is contended that interest at the rate of 12 % is on the higher side and it should be 9 %.
6. In recent authorities, Courts have held that appropriate rate of interest should be 9%.
7. 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."
8. 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.
9. 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.
10. 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.
11. 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 %.
12. 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 %.
13. 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.
14. 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).
15. In view of above, the rate of interest in the present case, 12 % awarded by Tribunal also cannot be justified and in our view interest should be paid at 9 % per annum.
16. Sri Kartikey Saran has heavily relied on the judgments in the case of Minu B. Mehta Vs. Balkrishna Ramchandra Nayan, 1977 Bombay Law Reporter 380, referred in Smt. Afreen Begum Vs. Mohd. Aftab Quraishi and another, in F.A.F.O. No.735 of 2005, decided on 29.9.2015, to contend that negligence of the driver of the truck has not been proved and once the same is not proved even it is a case of composite negligence, then only the insurance company can be held liable. In this case, the driver was negligent is proved by the evidence of the witness. The defence witness namely the conductor has also opined that it was the driver of the truck alone to that he was the author of the accident. The driver and the owner of the truck have not stepped into the witness box. The impact of the accident was such that several person died is a finding of fact of the Tribunal. The learned Counsel for the appellant has not been able to prove that the said finding is in any very erroneous and, therefore, the said submission is also rejected. The judgment in Afreen Begum (supra) will not apply to the facts of this case as here the Tribunal has given a categorical finding that the accident was caused by the negligent driving of the driver of the truck and his absence produced evidence has also been taken into consideration.
17. The UPSRTC has examined its conductor. The findings of fact are that the driver of the truck tried to overtake the bus and while doing so, he dashed with the bus. The impact was so great that the driver of the truck, against whom the chargesheet was laid, has been held guilty and the finding of negligence is recorded against him, therefore, the said submission is rejected.
18. This takes this Court to the cross objection filed by the claimant.
19. The income taken by the Tribunal will have to be now calculated as per the judgment of Apex Court in National Insurance Company Limited Vs. Pranay Setthi and others, S.L.P. (Civil) No.25590 of 2014, decided on 31.10.2017 and Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298. The income as calculated by the Tribunal was Rs.18,000/- per annum to which 40% will have to be added. As he was at the age group of 30, 1/5th will have to be deducted from this amount, therefore, the family would be entitled to Rs.20,160/-. The multiplier applied would be 17 and not 15 hence the amount would come to Rs.3,42,000/- to which as it is an accident of the year 1989, Rs.58,000/- which round up the amount of Rs.4,00,000/- though Sri Ram Singh has requested and submitted that Rs.70,000/- should be added under the other heads. The Tribunal awarded Rs.1,55,000/- + Rs.25,000/- under the head of no fault liability. Hence, the Tribunal has already awarded Rs.1,80,000/- hence Rs.2,20,000/- will now required to be deposited. The calculation given by Sri Ram Singh has not taken into account Rs.25,000/- paid under the no fault liability. I have rounded up the figure
20. Sri Ram Singh appearing for the cross-objectioner has calculated the amount, the amount required to be enhanced to Rs. 2,57,720/-, however, the rate of interest will be 9 per cent from the date of filing of the claim petition till 1992 and 4 per cent thereafter. The appeal is partly allowed.
21. The appeal and the cross-objection are partly allowed.
22. This Court is thankful to Sri Vipul Kumar and Sri A.K. Sinha to get a matter which is 26 years old disposed of.
23. I am thankful to my P.S. for seeing that no errors have crept into the mathematical calculation made herein above.
Order Date :- 22.11.2018
Praveen
