The Branch Manager United India ... vs Smt. Arti Devi
2021 Latest Caselaw 2184 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   [Civil Miscellaneous Appellate Jurisdiction]
                         M.A. No. 219 of 2018
                              .......

The Branch Manager United India Insurance Co. Ltd., Giridih ......... Appellant(s) Versus

1.Smt. Arti Devi

2. Mukesh Kumar Agarwal

3. Surendra Yadav ........ Respondent(s) With M.A. No.175 of 2019.

      Smt. Arti Devi                                                ......... Appellant(s)
                                     Versus

1. The Branch Manager United India Insurance Co. Ltd., Giridih

2. Mukesh Kumar Agarwal

3. Surendra Yadav ......... Respondent(s) ...........

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

For the Appellant(s) : Mr. D.C. Ghosh, Advocate. (In M.A. No.219/2018) Mr. Arwind Kumar, Advocate (In M.A. No.175/2018) For the Respondent(s) : Mr. Arwind Kumar, Advocate (In M.A. No.175/2018) ..........

07/ 05.07.2021. Since both Miscellaneous Appeals are arising out of common award, as such, both are being heard together and disposed of, by a common judgment.

Heard learned counsel for the parties.

Appellant- The Branch Manager, United India Insurance Company Limited as well as claimant- Smt. Arti Devi have preferred analogous appeal assailing the same impugned Award dated 08th January, 2018 passed by learned District Judge-II-cum M.A.C.T., Giridih, in Title (M.V.) Suit No.31 of 2015 whereby claimant- Smt. Arti Devi, W/o Laxman Sharma has been awarded a compensation to the tune of Rs.13,02,902/- along with interest @6% per annum from the date of filing of the claim application i.e. from 04.06.2015 till the realization of the amount of compensation from O.P. No.3. Further, the O.P. No.3- United India Insurance Company Limited is directed to pay the compensation amount including the interest to the claimant within a period of 60 days from the date of the order, failing which, the claimant will be at liberty to realize the same through the process of court and the interest at the rate of 9% per annum shall be calculated after expiry of 60 days.

Mr. D.C. Ghosh, learned counsel for the Insurance Company has assailed the impugned Award on the ground that at Para-4 of the impugned judgment. The Insurance Company has taken a plea in the written statement that the vehicle was insured as a private car, but it was used as a commercial vehicle for carrying barat/passengers, as there is violation of statutory terms and conditions of the policy.

Mr. D. C. Ghosh, learned counsel for the Insurance Company has further submitted that the interest has been awarded @9% per annum after sixty days of the Award which is as penal interest, but not permissible under the law, as this Court relying upon the judgment passed by the Apex Court in the case of Dharmpal and Sons vs. U.P. State Road Transport Corporation, reported in 2008(4) JCR 79 SC.

Learned counsel for the Insurance Company has submitted that in view of aforesaid judgment interest may be granted @7.5% per annum from the date of filing of the claim application till the date of indemnifying the Award.

Mr. Arwind Kumar, learned counsel for the claimant while opposing the same has submitted that in the analogous Appeal i.e. M.A. No.175 of 2019, the amount of Rs.40,000/- has not been paid less under the heading for loss consortium, in view of the judgment passed by Apex Court in the case of National Insurance Company Ltd. vs, Pranay Sethi, reported in (2017) 16 SCC 680 at Para 59.8, as such, the same may be awarded.

Mr. Arwind Kumar, learned counsel for the claimant has further submitted that so far the interest is concerned, which has been assailed by the learned counsel for the Insurance Company with respect to grant of interest @7.5% per annum, claimant has no objection though it will cause slight change in the quantum of compensation from 6% - 9%, as such, this Court may not interefere with the same.

Mr. Arwind Kumar, learned counsel for the claimant has further submitted that in Para-12 of the impugned Award, it has been recorded by the learned Tribunal that O.Ps. meaning thereby the Insurance Company as well as owner of the offending vehicle have not adduced any oral or documentary evidence to rebut the case of the claimant, as such, in view of the judgment passed by the Apex Court in the case of Ramchandra Vs. Regional Manager United India Insurance Co. Ltd., reported in 2013 (12) SCC 84 at Para-26, which may profitably be quoted herein :-

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 realise the amount of compensation beyond Rs 32,091 from the insured/owner as the plea of the respondent Insurance Company all through 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 Accidents 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 Accidents 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 straightaway at the appellate stage.

As such, the grounds which have been agitated by the Insurance Company is not available to the Insurance Company. Accordingly, the appeal preferred by the Insurance Company may be dismissed and the Appeal preferred by the claimant may be allowed.

Considering the rival submissions of the parties and after going through the materials available on record and looking into the facts and circumstances of the case, it appears that both the parties i.e. Insurance Company as well as the claimant have assailed assailed the impugned award.

In view of the judgment passed by the Apex Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., reported in 2011 (14) SCC 639 at Para- 8, which has been referred above :-

"8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

As such, this Court has to determine just and fair compensation.

So far the appellant- United India Insurance Company Limited has taken a plea in the written statement, that vehicle was carrying persons, who were not authorized, meaning thereby, that the insurer has violated the terms and conditions of the policy by using private vehicle as a commercial vehicle.

From perusal of Para-12 of the impugned award, it appears that no oral or documentary evidence have been brought on record by the Insurance Company, which may profitably be quoted herein :-

"12. The O.P.s have not adduced any oral or documentary evidence to rebut the case of the claimants."

Further, in view of the judgment passed by the Apex Court in the case of Ramchandra (Supra), the Insurance Company is not permitted to raise such plea as they have not adduced any evidence before the learned Tribunal.

So far the amount under the heading of consortium is concerned, as it appears from the impugned award that it is true that the learned Tribunal has not granted amount of Rs.40,000/- under the heading of consortium, in view of the judgment passed by the Apex Court in the case of Pranay Sethi (supra) at para 59.8.

So far the interest is concerned, though the interest has been granted @6% per

annum for 60 days from the date of the order, failing which, after 60 days interest @9% per annum shall be calculated, this Court considers that this point has been rightly agitated by the Insurance Company, as such, interest shall be calculated @7.5% per annum from the date of filing of the claim application till the date of indemnifying the Award, in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons (supra) as well as in view of Section 171 of the MV Act.

In the result, the appeal preferred by the appellant- United India Insurance Company Limited is partly allowed to the extent of modification in the rate of interest whereas the appeal i.e. M.A. No.175 of 2019 preferred by the claimant is hereby ALLOWED with a direction to add Rs.40,000/- under the heading for Consortium.

As such, the amount of compensation i.e. Rs.13,02,902 + Rs.40,000/-= Rs.13,42,902/- shall be paid along with interest @7.5% per annum from the date of filing of the claim application till the date of indemnifying the Award.

The amount already paid by the Insurance Company including the amount of Rs.50,000/-, if paid shall be deducted and the rest amount shall be paid by the Insurance Company within a reasonable time, as the accident is dated 19.04.2014.

The Statutory amount of Rs.25,000/- deposited by the Insurance Company before this Court at the time of preferring the appeal i.e. M.A. No.219 of 2018 shall be remitted by the learned Registrar General of this Court to the learned Tribunal within a period of four weeks from today. The learned Tribunal/Executing Court shall disburse the same to the claimant after due notice and verification.

(Kailash Prasad Deo, J.) Sandeep/