Divisional Manager vs Yashoda Devi & Others
2021 Latest Caselaw 2329 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 262 of 2019
                            ........

Divisional Manager, National Insurance Company Limited .... ..... Appellant Versus Yashoda Devi & Others .... ..... Respondents

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

For the Appellant : Mr. Manish Kumar, Advocate.

For the Respondents             :
                                     ........
03/14.07.2021.

Heard, learned counsel for the appellant, Mr. Manish Kumar. The National Insurance Company has preferred this appeal against the award dated 02.04.2019 passed by learned District Judge- II-cum-M.V.A.C.T., Bokaro in Motor Accident Claim Case No. 43/2014, whereby the claimant Yashoda Devi has been awarded compensation to the tune of Rs.4,60,000/- (after deducting Rs.50,000/- under Section 140 of the Motor Vehicles Act) along with interest @ 6% per annum from the date of filing of the claim application i.e. 26.06.2015 to be paid within 90 days, failing which the interest shall be paid @ 9% per annum. However, claimant Yashoda Devi is directed to give Rs. 1,00,000/- each to opposite party nos. 4 & 5 namely, Laltu Gope and Pasni Devi. Learned Tribunal has further granted right to recover the amount to O.P. No.3, National Insurance Company from O.P. No.1, Suraj Devi Chopra being the owner of offending vehicle TATA 407 JH-09E-1294, if there is violation of terms and condition of the Insurance Policy.

Learned counsel for the appellant has submitted that this conditional right of recovery is prejudicing the interest of the Insurance Company, as in the First Information Report, there is categorical statement that deceased was travelling in a goods carrying vehicle, as such, he was a gratuitous passenger. The evidence has also been brought on record with regard to the gratuitous passenger, but learned Tribunal has not given absolute right to recover after satisfying the award to the claimant from owner of the vehicle.

Learned counsel for the appellant has submitted that quantum of compensation has not been assailed by the Insurance Company, but only to the limited scope regarding absolute right of recovery, the Insurance Company has preferred this appeal.

Learned counsel for the appellant has further submitted that the interest has been awarded @ 9% per annum, if the awarded amount is not paid within 90 days and as such, this part of the interest is prejudicing the Insurance Company, as this Court has taken a consistent view following the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (4) JCR 79 (SC), as such, the interest @ 9% per annum after 90 days has also been assailed by the Insurance Company.

From perusal of Section 171 of the Motor Vehicles Act, it appears that the interest has to be paid from date of filing. From perusal of the judgment relied by the learned counsel for the appellant in the case of Dharmpal & Sons (Supra), it appears that interest @ 7.5% per annum is to be awarded consistently from the date of filing of the claim application till the date of realization. Since from the date of filing i.e. 26.06.2015 till 90 days interest @ 6% per annum has been granted and failing which interest @ 9% per annum has been granted by the learned Tribunal, this Court is not inclined to interfere in the same, as the same become more or less around 7.5% per annum simple interest.

Accordingly, this Court is not inclined to interfere with the finding recorded by the learned Tribunal in the interest part.

Perused the impugned award, it appears that Nibaran Gope @ Nunaram Gope was travelling in TATA 407 bearing registration No. JH-09E-1294 on 05.12.2013 from Jainamore to Chas and the vehicle met with an accident because vehicle turned turtle. The husband of the claimant sustained injury and died during treatment. An FIR has been lodged at Pindrajora P.S. Case No.98/2013 dated 05.12.2013 corresponding to G.R. No.2045/2013, for the offence registered under Sections 279 and 304A IPC and after the investigation, the charge-sheet was submitted under Sections 279 and 304-A IPC. The deceased lost his life at the age of 46 years, he was a milk seller, the vehicle was duly insured before National Insurance Company

Limited vide Policy No.170481/31/13/6300000009 for the period 02.05.2013 to 01.05.2014 and the accident took place on 05.12.2013, as such, the vehicle was duly insured.

From perusal of the impugned Judgment, it appears that learned Tribunal has framed seven issues, which are as follows:-

I. Whether the suit is maintainable in its present form ? II. Whether the Plaintiff had valid cause of action to file the present suit ?

III. Whether the deceased Nibaran @ Nunaram Gope has died on 05.12.2013 while traveling in a Tata 407 vehicle bearing registration no. JH-09E-1294, near B.B.M. High School, Kura more, P.S. - Pindrajora due to accident caused by rash and negligent driving of its driver ? IV. Whether the driver of Tata 407 had valid driving license, at the time of accident ?

V. Whether the Tata 407 vehicle bearing registration no. JH-09E-1294 had valid insurance policy at the time of accident ?

VI. Whether the Plaintiff is entitled for compensation from whom and to what extent ?

VII. Whether the Plaintiff is entitled to get any other relief or reliefs?

The Issue No. V i.e. Whether the TATA 407 vehicle bearing registration No. JH-09E-1294 had valid Insurance Policy at the time of accident?, has already been decided in favour of the owner of the vehicle at para-14 of the impugned judgment. However, to agitate the issue of gratuitous passenger, neither separate issue has been framed nor there was any issue before learned Tribunal with regard to violation of terms and condition of the Policy under Section 149(2) of the Motor Vehicles Act, rather it has been brought on record by the claimant, which has been recorded by the learned Tribunal while deciding the issue No.III at para-12 of the impugned award, that husband of the claimant, Nibaran Gope @ Nunaram Gope has loaded his paddy on goods vehicle TATA 407 bearing registration No. JH- 09E-1294 for taking it to the Rice Mill and on the way, the vehicle

met with an accident. Since no contrary evidence has been brought on record by the Insurance Company and since the claimant was claiming the deceased to be owner of the goods loaded over the vehicle, as such, the deceased was not a gratuitous passenger. Accordingly, seeing no merit in this case, the appeal is dismissed being devoid of merit.

The appellant may take recourse granted by the learned Tribunal. The stay petition filed vide I.A. No.4352/2020 is accordingly closed as the Miscellaneous Appeal has already been dismissed.

The statutory amount deposited by appellant-Insurance Company at the time of preferring the appeal shall be remitted to the learned Tribunal by the learned Registrar General within four weeks' from today, so as to indemnify part of the amount to the claimant after due notice and verification and rest of the amount shall be indemnified by the Insurance Company to the claimant within a reasonable period, as the accident is of dated 05.12.2013.

It has been submitted by the learned counsel for the appellant, Mr. Manish Kumar that in the Certificate Case No.22/2019-20, warrant of arrest has been issued against the Divisional Manager, National Insurance Company Limited on Friday i.e. 09.07.2021 by the Executing Court, as such, 90 days time may be granted, so as to indemnify the award and in the meantime, the warrant of arrest may not be executed.

Be as it may, since such prayer has been made by the Insurance Company in a benevolent legislation, this Court is inclined to give such protection to the Officers of the National Insurance Company Limited for 90 days from today. If the amount is paid within 90 days, the executing court shall not execute the warrant or take coercive method against the Officers of the National Insurance Company Limited. If the amount is not satisfied within a period of 90 days, the executing court shall act in accordance with law.

(Kailash Prasad Deo, J.) Sunil-Jay/-