United India Insurance Company ... vs Kashi Nath Pandey
2021 Latest Caselaw 2560 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 517 of 2018
      United India Insurance Company Ltd.                        ....... Appellant
                                  Versus
      1.Kashi Nath Pandey
      2.Vidya Devi
      3.Mobina Khatoon and Alam Sidique
      4.Istemak Ali
      5.Bajaj Allianz General Insurance Co. Ltd.
      6.Om Prakash Agarwal
      7.Bhuneshwar Mahto
      8.Akhilesh Kumar Singh
      9.Shankar Prasad Sahu
      10.The National Insurance Co. Ltd.                         ......Respondents

      CORAM:        HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                    (Through : Video Conferencing)
      For the Appellant                : Mr. G.C. Jha, Advocate
      For the Respondents No.5         : Mr. S.J. Roy, Advocate
      For the Respondents No.10        : Mr. Manish Kumar, Advocate

06/Dated: 27/07/2021.

             Heard, learned counsel for the parties.

Appellant- United India Insurance Company Ltd. has preferred the instant Miscellaneous Appeal against the judgment/award dated 26.05.2018, passed by learned District Judge-I-cum-M.A.C.T.-I, Bermo at Tenughat (Bokaro), in M.V. Claim Case No.34 of 2014, whereby the appellant has been directed to pay compensation to the tune of Rs.10,23,000/- to the claimants, namely, 1.Kashi Nath Pandey and 2.Vidya Devi along with simple interest @ 6% per annum from the date of filing of the claim application within two months of the award, failing which the interest payable will be @ 12% per annum on the accrued amount till realization.

Learned counsel for the appellant-United India Insurance Company Ltd., Mr. G.C. Jha has submitted, that the instant appeal has been preferred by the United India Insurance Company Ltd. on the ground that three offending vehicles (i.e. Hywa/Tipper Dumper bearing registration No.JH02D-4324 insured before the United India Insurance Co. Ltd., Tanker bearing registration No. BR 14G-9510 insured before the National Insurance Co. Ltd. and Tata Sumo Grand bearing registration No. JH10X-2702 insured before the Bajaj Allianz General Insurance Co. Ltd.) have been chargesheeted by the police after investigation and the chargesheet has been brought on

record as Exhibit-8, but while computing the compensation the liability has only been fastened upon the insurer of Hywa/Tipper Dumper bearing registration No.JH02D-4324 i.e. United India Insurance Co. Ltd. and Tanker bearing registration No. BR 14G-9510 insured before the National Insurance Co. Ltd.

Learned counsel for the appellant-United India Insurance Company Ltd. has further submitted that the learned Tribunal has granted right to recover in favour of O.P. No.6 i.e., United India Insurance Company Ltd. from owner of Hywa/Tipper Dumper bearing registration No.JH02D-4324, but that right is not an absolute right rather it has been granted which is to be proved, though no such issue has been framed by the learned Tribunal. It appears that issue no.3, which has been framed by the learned Tribunal itself shows, that from the very beginning, the learned Tribunal has kept in mind that Tata Sumo Grand bearing registration No. JH10X-2702 in which the deceased died has become the victim of negligent driving of Hywa/Tipper Dumper bearing registration No.JH02D-4324 and Tanker bearing registration No. BR 14G-9510.

Learned counsel for the appellant has further submitted that there is no provision of penal interest under the Motor Vehicle Act though it has been awarded @ 12% per annum, which may be set aside by this Court.

Mr. Manish Kumar, learned counsel for the National Insurance company Ltd. has submitted that the National Insurance company has already satisfied the award as awarded by the learned tribunal, as such, he has nothing to argue on merits of the appeal.

Mr. S.J. Ray appearing for the Bajaj Allianz Insurance company Ltd. has submitted that so far framing of issues raised by the learned counsel for the appellant-United India Insurance company is concerned, the same has not caused any prejudice to the appellant as dispute and evidence has been laid, as such, issues are known to him. If any party/Insurance company is aggrieved of framing of an issue or non-framing of a particular issue the option is before the party/Insurance company to propose an issue before the learned tribunal. If the said issue is not framed, in accordance with law, the party/Insurance company is at liberty to assail the same before the court of

Appeal, but this has not been done by the appellant, as such, appellant is not permitted to do so, in view of the judgment passed by the Apex Court in the case of Bachhaj Nahar vs. Nilima Mandal & Another, reported in (2008) 17 SCC 491.

Mr. S.J. Ray appearing for the Bajaj Allianz Insurance company Ltd. has further submitted that though the charge-sheet has been submitted against all the three vehicles, but from the evidence brought on record, which has been discussed while deciding issue Nos.5 and 6 at internal page No.7 of the impugned award by the learned Tribunal that "the Tipper hit the Tata vehicle first and then tanker also hit it on right side leading to death of the deceased inside the vehicle" meaning thereby, the occurrence which has taken place is because of the rash and negligent driving of one Gas tanker/truck bearing registration No. BR 14G-9510 which was crossing the bridge and the tipper/Dumper bearing registration No.JH02D-4324 speeding the vehicle in order to overtake each other and almost covered the entire road and in the meantime, one Tata sumo vehicle was seen coming from the side of Peterbar i.e. opposite side, thus it is the Hywa/Tipper Dumper bearing registration No.JH02D-4324 and Tanker bearing registration No.BR14G-9510 are primarily involved in the accident and due to their high speed and rash and negligent driving, hit the Tata Sumo coming from other side, as such, the learned tribunal has rightly passed the order fastening the liability upon the Hywa/Tipper Dumper bearing registration No.JH02D-4324 insured before the United India Insurance company Ltd. and Tanker bearing registration No.BR14G-9510 insured before the National Insurance company Ltd., as such, impugned order does not require any interference. Accordingly, the instant Misc. appeal may be dismissed.

Considering rival submissions of the parties and looking into the facts and circumstances of the case, the issue No.5 has rightly been decided by the learned tribunal which does not require any interference by this court, which shall be apparent from the fact that, it is Hywa/tipper bearing registration No. JH02D-4324 and Tanker bearing registration No. BR14G-9510, which were responsible for such accident and they hit Tata sumo coming from opposite side, which was insured before the Bajaj Allianz General Insurance

company Limited in which the person died. As such, Bajaj Allianz General Insurance Company Ltd. has not been saddled with any liability, as such, this finding recorded by the learned tribunal does not require any interference by this court.

So far framing of the issue is concerned, learned counsel for the appellant cannot agitate this issue. Once the issue was known to him and he has not preferred any appeal regarding the same, if he was not satisfied and evidence has been brought on record and appellant fails to prove how prejudice has been caused, this Court is not inclined to entertain such plea in appeal in view of the judgment passed by the Apex Court in the case of Bachhaj Nahar (supra).

So far penal interest @12% per annum is concerned, it is true that there is no provisions under the Motor Vehicles Act with regard to penal interest, but looking into the facts and circumstances, that interest @ 6% has been awarded from the date of filing of the claim application to be paid within two months, failing which, interest shall be payable @12% per annum till realization.

This court considers the same, in view of the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. State Road Transport Corporation, reported in (2008) 4 JCR 79 SC, wherein the interest has been quantified 7.5% per annum on the basis of prevalent bank rate interest on the date of accident. Considering the same, if the interest @ 7.5% per annum is granted from the date of filing of the claim application till the date of indemnifying the award, the same will remain more or less same, if it is granted from the date of filing of the claim application for two months of the award @6% per annum, failing which @12% per annum.

Accordingly, this Court is not inclined to interfere with the same. The instant Misc. Appeal stands dismissed.

The statutory amount deposited by the appellant- Insurance Company before this Court while preferring the appeal shall be remitted to the learned Tribunal by the learned Registrar General of this Court within a period of four weeks, which shall be disbursed by the learned Tribunal to the claimants after notice and proper verification.

The balance amount awarded against the United India Insurance company, if not satisfied till date shall be satisfied within a reasonable time as the accident is of dated 27.06.2012.

If the amount has already been deposited in compliance of the order dated 17.08.2019, the learned tribunal or the executing court shall consider the same and satisfy the award to the claimants after calculating the interest.

Insurance company is also directed to place this fact before the executing court so as to satisfy the award.

(Kailash Prasad Deo, J.) sandeep