Pramodkumar vs Liladhar
2013 Latest Caselaw 155 Bom

                                      1                      fa258.11.odt




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                   
                    NAGPUR BENCH, NAGPUR.




                                           
                   First Appeal No.258 of 2011

    Pramodkumar s/o Chandrasen Gupta,




                                          
    Aged about 40 years,
    Occupation Business,
    36, Ashok Colony, Ganesh Nagar,
    Gondia, Tahsil and District Gondia.        ..... Appellant.




                                    
                       ig   :: versus ::

    1. Liladhar s/o Meghraj Upadhayay,
    Aged about 59 years,
                     
    Occupation Rice Mill Business.

    2. Smt. Latadevi w/o Liladhar Upadhayay,
    Aged about 55 years,
    Occupation Household.
      


    Both R/o Behind old Jaishri Talkies,
   



    At Ganj Ward, Gondia,
    Tahsil Gondia,
    District Bhandara (M.S.).





    3. Raju s/o Haribhau Kalsarpe,
    Aged about 40 years,
    Occupation Driver,
    R/o Ganesh Nagar, Gondia,
    Tahsil Gondia,





    District Bhandara.

    4. The New India Assurance
    Company Ltd., Motwani Chamber,
    Ganj Ward, Gondia - 441 601 (M.S.)
    Tahsil Gondia,
    District Bhandara (Maharashtra).       ..... Respondents.


                                                                   .....2/-




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    =====================================
                Shri A.N.Vasanti, counsel for the Appellant.




                                                                         
                Shri M.B.Joshi, counsel for R-4.
    =====================================




                                                 
                           CORAM : A. P. BHANGALE, J.

DATE : 18th NOVEMBER, 2013

ORAL JUDGMENT.

1. Heard the learned counsel appearing for both the

parties.

2. This appeal challenges judgment and order dated

12.8.2010, passed by the learned Member, Motor Accident

Claims Tribunal, Gondia, in Claim Petition No.6 of 2003,

whereby the Tribunal awarded sum of Rs.1,72,000/-

inclusive of 'no fault liability' payable jointly and severally

by owner, driver and insurer of the offending motor

vehicle. The owner of the offending vehicle was

specifically and exclusively directed to pay the interest on

the awarded amount at the rate of 7.5% per annum from

the date of claim petition i.e. w.e.f. 18.12.1995 till

realization of the amount.

.....3/-

3 fa258.11.odt

3. The liability to pay the interest on the awarded

amount imposed by the Tribunal is disputed by the

appellant on the ground that the lawyer engaged by the

appellant did not take care to prosecute the petition

properly and hence claim petition was decided ex parte

on 16.11.2005. It is the case of the appellant that he

came to know of the ex parte award on 22.2.2006 and

moved for setting aside ex parte award while appellant

also prayed for condonation of delay. On 1.7.2010, the

application for setting aside ex parte award was allowed

subject to payment of costs in the sum of Rs.1,000/-.

Thus, the appellant got opportunity to contest the claim

petition on merits. As a result thereof, the impugned

judgment and award was passed whereby the insurer was

exempted from payment of interest for the period during

which proceedings were delayed for no fault on the part

of insurer. According to the Tribunal, delay which

resulted in final disposal of the claim petition was solely

because of the appellant as he had belatedly moved for

setting aside the ex parte award and was allowed to

.....4/-

4 fa258.11.odt

contest the petition on merits. The learned counsel for the

appellant submitted that the interest liability ought not

have been imposed upon the appellant by the learned

Member of the Tribunal. The contention is not acceptable

nor convincing to discharge appellant from the liability to

pay interest for delay caused on behalf of the appellant.

4. The learned counsel for the insurer has strongly

objected the submission from the appellant on the ground

that the owner of the offending motor vehicle is liable to

pay the interest and not the insurer since it was because

of owner of the offending motor vehicle that delay

occurred for disposal of the claim petition. Therefore, the

owner of the offending vehicle was rightly held

exclusively responsible to pay the amount of interest for

delayed period.

5. Some facts may be necessary to be borne in mind for

decision in this appeal.

The motor vehicular accident had occurred on

2.8.1995 when deceased Sital was going to coaching class

.....5/-

5 fa258.11.odt

by bicycle through the over bridge. She was aged about

17-year old. Tempo Trax bearing registration

No.MH-35/B/9766 came from opposite direction driven

rashly and negligently by respondent No.3 and gave dash

to the bicycle of Sital. In the result, she suffered serious

injuries and died after she struggled for survival for 15

days.

The parents of the deceased claimed compensation in

the sum of Rs.3,37,000/-.

6. It was the case of the appellant (owner of the

offending vehicle) as well as driver that there was no

negligence on the part of the driver. Their defence was

considered by the Tribunal on the basis of the evidence

led and it was held that the offending vehicle was driven

by Raju Haribhau Kalsarpe and was owned by the present

appellant Pramod Gupta while it was insured with New

India Assurance Company Limited. The Tribunal also held

that the driver of the offending motor vehicle was

required to take more precaution and care as Sital was

driving bicycle and Raju was driving tempo Trax. Under

.....6/-

6 fa258.11.odt

these circumstances, the award in the sum of Rs.

1,72,000/- was passed inclusive of 'no fault liability'.

7. Looking to the the facts and circumstances of the

case, the compensation amount as granted cannot be

considered as unreasonable or unjust. The interest

amount awarded at the rate of 7.5% was also reasonable.

Such amount of interest is payable from the date of the

claim petition till the amount is realized.

The insurer cannot be fastened with liability for no

fault of the insurer particularly when the owner of the

offending motor vehicle was represented by an Advocate

in the claim petition and delay was caused for alleged

carelessness on the part of the lawyer. The claim petition

was initially heard and decided ex parte against the

owner of the offending motor vehicle as the owner of the

offending motor vehicle and an Advocate representing

him were absent.

8. Be that as it may, the owner of the offending motor

vehicle availed of an opportunity of being heard on merits

.....7/-

7 fa258.11.odt

in respect of the claim petition after delay was condoned.

He was held rightly answerable for delay caused in the

final decision and for payment of interest for the delayed

period. The contention that the lawyer was careless is

matter of debate and the question to be agitated between

the appellant and his lawyer themselves. According to

the the learned counsel for the appellant, his lawyer is no

more living. Even on this ground the appellant cannot

escape from responsibility for payment of award amount.

The insurer cannot be compelled to pay the interest

amount because delay was caused by the appellant-

owner of the offending motor vehicle. There would be no

justification to ask insurer to bear responsibility for delay

caused by the owner of the offending motor vehicle or his

Advocate resulting from carelessness on the part of the

owner of the offending motor vehicle and / or his lawyer

and secondly, the award was further delayed because of

proceedings pending for setting aside the ex parte award

and for hearing the claim petition on merits. The onus

lies upon the owner of the offending motor vehicle to

discharge the liability for payment of interest which is

.....8/-

8 fa258.11.odt

reasonable at the rate of 7.5% per annum from the date

of petition till realization on the award sum of Rs.

1,72,000/- inclusive of 'no fault liability'. The owner of the

offending motor vehicle could not have been exonerated

from payment of interest due on compensation awarded.

9. No interference is required in exercise of the

appellate jurisdiction. The appeal is dismissed.

10. The amount deposited, if any, be transferred to the

Tribunal for payment of compensation due along with sum

of interest on the award compensation.

JUDGE

!! BRW !!

...../-