Manager (Claim) vs Munna Ansari @ Sartaj Ahmad & ...
2021 Latest Caselaw 2642 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 251 of 2019
                         ........

Manager (Claim), National Insurance Company Ltd. & Another ..... ..... Appellants Versus Munna Ansari @ Sartaj Ahmad & Others ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellants : Ms. Amrita Banerjee, Advocate.

For the Respondents       :
                                    ........
06/02.08.2021.

Heard, learned counsel for the appellants, Ms. Amrita Banerjee.

Appellant-National Insurance Company Limited has preferred this appeal against the award dated 26.02.2019 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No. 350/2011, whereby the claimants namely, (1) Munna Ansari @ Sartaj Ahmad, son of Amjad Ali, Husband of deceased Sahanaj Praveen, (2) Rizwan Ansari, son of Munna Ansari, (3) Irfan Ansari, son of Munna Ansari, (4) Guria, daughter of Munna Ansari @ Sartaj Ahmad, (5) Saiyara Bano, daughter of Munna Ansari @ Sartaj Ahmad, (6) Khushbu, daughter of Munna Ansari @ Sartaj Ahmad and (7) Munni, daughter of Munna Ansari @ Sartaj Ahmad (Claimant nos. 2 to 6 are sons and daughters of deceased Sahanaj Praveen), (Claimants no. 2 to 6) are minors represented through their father, Claimant No. 1, guardian and next friend, Munna Ansari @ Sartaj Ahmad, have been awarded compensation to the tune of Rs. 7,15,120 to be paid within 30 days from the date of award, failing which the National Insurance Company will be liable to pay interest @ 12% per annum from the date of award till the date of realization, though the cheque, which was issued by the National Insurance Company Limited vide Cheque No. 044885 dated 10.08.2017 under Section 140 of the Motor Vehicles Act to the tune of Rs. 50,000/- has not been encashed because of expiry of validity period of cheque and as such, the entire awarded amount has to be paid to the claimants.

Learned counsel for the appellants, Ms. Amrita Banerjee has vehemently argued this appeal on the ground that the offending vehicle was over-loaded which was driven by Mokhtar Ansari, resulting in death of Saba Praveen and Sahanaj Praveen. So far present appeal is concerned, the same is with regard to Motor Accident Claim Case No. 350/2011 preferred by the legal heirs of Sahanaj Praveen.

Learned counsel for the appellants has submitted that the vehicle was insured before the Insurance Company vide Policy No. 170701/31/10/686700001194 valid for the period from 29.05.2010 to 28.05.2011 and earlier the vehicle was in the name of Dr. Vivek Kashyap and without impleading Dr. Vivek Kashyap as party and without transferring the insurance paper of the offending vehicle, the learned Tribunal has passed award against the Insurance Company, which is apparent error on record.

Learned counsel for the appellants has further submitted that deduction has been made as 1/5 th, which ought to have been made as 1/4th as the number of dependents are 06 and total number of claimants are 07.

Learned counsel for the appellants has further submitted that interest has been awarded exorbitantly high @ 12% per annum which is contrary to the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12 SCC 208 = 2008 (4) JCR 79 (SC), which ought to have been @ 7.5% per annum.

Learned counsel for the appellants has thus submitted that the impugned award may be set aside.

After hearing learned counsel for the appellants and perused the materials available on record.

So far the ground taken with regard to insurance coverage is concerned, in view of Section 157 of the Motor Vehicles Act, the same ground is not available to the Insurance Company. Section 157 of the Motor Vehicles Act is profitably quoted hereunder:-

157. Transfer of certificate of insurance.--

(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another

person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. 1[Explanation.--For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.]

(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.

It appears that there is no such pleadings by the Insurance Company before the learned Tribunal nor Insurance Company has adduced any evidence in this regard before the learned Tribunal. As such, this issue cannot be allowed to raise in the court of appeal in view of the judgment passed by the Apex Court in the case of Ramchandra Vs. Regional Manager United India Insurance Company Limited reported in 2013 12 SCC 84 (Para-26). Para-26 of aforesaid judgment is profitably quoted hereunder:-

"26. Hence, at the stage of appeal before the High Court, we find no legal justification for the High Court to leave it open to the insurance company to realize the amount of compensation beyond Rs.32,091/- from the insured/owner as the plea of the respondent/insurance company althrough was that the claimant is not entitled to any compensation beyond the extent of liability under the Workmen's Compensation Act and the respondent / insurance company had not taken the alternative plea either before the tribunal or the High Court that in case the claimant is held entitled to compensation beyond the extent of liability under the Workmen's Compensation Act, the same was not payable as no extra premium was paid by the insured/owner under the policy of insurance. The insurance company had failed to raise any plea before the courts below i.e. either the Motor Accident Claims Tribunal or the High Court and it did not even contend that in case the claimant is entitled to any compensation beyond what was payable under the Workmen's Compensation Act, it is the insured owner who was liable to pay as it had no contractual

liability since the insured/owner of the vehicle had not paid any extra premium. Thus, this plea was never put to test or gone into by the Motor Accident Claims Tribunal since the insurance company neither took this plea nor adduced any evidence to that effect so as to give a cause to the High Court to accept this plea of the insurance company straight away at the appellate stage."

Further, on the date of accident, the vehicle was in the name of Dr. Vivek Kashyap, as such, this plea which has been agitated by the learned counsel for the appellants is not sustainable in the eyes of law.

So far the number of dependents with regard to deduction towards the personal and living expenses is concerned, this Court feels that even if 07 dependents are there, the deduction has to be made as 1/5th as from the discussion made by the learned Tribunal with regard to Issue No. (5) at para-10, page-10 of the impugned judgment, it appears that 07 children are there from the said wedlock apart from her husband at the time of accident or at the time of institution of the claim application, as such, the plea taken by learned counsel for the appellants with regard to number of dependents is hereby negated.

So far the plea with regard to interest is concerned, this Court has perused Section 171 of the Motor Vehicles Act, which reads as follows:-

"171. Award of interest where any claim is allowed.--Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."

Since the learned Tribunal has awarded interest @ 12% per annum after expiry of 30 days from the date of award, this Court consider that even it is changed @ 7.5% from the date of filing of the claim application from the year 2011, then it will hardly makes any difference.

Accordingly, in a benevolent legislation, this Court is not inclined to interfere with the impugned award, as such, this miscellaneous appeal is hereby dismissed.

The statutory amount deposited by the appellants at the time of preferring the appeal shall be remitted to the learned Tribunal by the learned Registrar General of this Court within a period of four weeks from today so as to indemnify the part of the award and same shall be disbursed to the claimants after due notice and verification and the balance amount shall be indemnified to the claimants by the Insurance Company within a reasonable period as the accident is of dated 12.04.2011.

(Kailash Prasad Deo, J.) Sunil/-