Sunil Kumar Bhartiya vs Mohan Lal Mahato & Ors
2021 Latest Caselaw 2003 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 256 of 2018
                           ........

Sunil Kumar Bhartiya                        .... ..... Appellant
                             Versus
Mohan Lal Mahato & Ors.                     .... ..... Respondents
                            With
                  M.A. No. 76 of 2018
                           ........
SBI General Insurance Co. Ltd.              .... ..... Appellant
                                  Versus
Mohan Lal Mahato & Ors.                     .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through : Video Conferencing)
                                ............
For the Appellant               : Mrs. J. Mazumdar, Advocate.
For the Respondent No. 5        : Mr. Ashutosh Anand, Advocate
                                             (in M.A. No.256/18)
For the Appellant               : Mr. Ashutosh Anand, Advocate.
For the Respondent No. 5        : Mrs. J. Mazumdar, Advocate
                                             (in M.A. No.76/18)
                                ........
07/23.06.2021.

Heard, learned counsel for the appellant, Mrs. J. Mazumdar in M.A. No.256/2018 and learned counsel for the appellant - Insurance Company, Mr. Ashutosh Anand in M.A. No.76/2018. These appeals have been preferred by the owner and Insurance Company respectively.

Both the appeals have been preferred against the Award dated 21.11.2017 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No. 251/2013, whereby learned Tribunal has directed the Insurance Company to indemnify the award to the tune of Rs.9,34,828/- to be paid within 30 days from the date of award along with interest @ 9% per annum from the date of admission of the claim application under Section 166 of the Motor Vehicles Act i.e. 21.07.2015.

The owner has preferred M.A. No.256/2018 with delay of 76 days and for condonation for the same, I.A. No.6482/2018 has been preferred.

Learned counsel for the appellant-owner, Mrs. J. Mazumdar has assailed the impugned award on the ground that learned Tribunal has not considered the documents of the owner and wrongly gave a finding with respect to Issue No. 5:- "Whether the insured / owner of the offending vehicle has violated terms and conditions of the insurance policy?"

Learned counsel for the appellant-owner, Mrs. J. Mazumdar has submitted that there is no violation of terms and condition of the policy by the owner / insured of the vehicle.

Learned counsel for the Insurance Company, Mr. Ashutosh Anand has opposed the prayer and has submitted that the written statement, filed by owner of the vehicle, is formal in nature as recorded in para-3 of the impugned award. The owner has not stated / pleaded anything to contest the case. The Tribunal has rightly considered the same and has recorded that O.P. has not denied the fact that at the material time of accident, he was owner of the offending vehicle and he has also not pleaded in written statement that at the time of the accident, he was holding required valid and effective documents for the offending vehicle and valid driving licence for the charge sheeted driver.

Learned counsel for the Insurance Company, Mr. Ashutosh Anand has thus submitted that in view of such pleading and in absence of any evidence adduced by the owner of the vehicle, the appeal is not maintainable as it has been held by the Apex Court in the case of Ramchandra Vs. United India Insurance Company Ltd. reported in (2013) 12 SCC 84 (Para-26), wherein it has been held that the plea which was never put to test or gone into the Motor Vehicle Claim Tribunal, the same is not allowed to be agitated before the appellate court. The owner has not taken any steps to take this plea nor adduced any evidence to that effect, so as to give a cuase to the High Court to accept this plea of the appellant-owner and as such, the appeal preferred by the owner is non- sustainable in the eyes of law.

Considering the rival submissions of the parties, looking into the fact and circumstances of the case, since appeal has been preferred with delay of 76 days and sufficient reason has been shown, the delay in preferring the appeal is hereby condoned.

Accordingly, I.A. No.6482/2018 is allowed.

However, on merit since the appellant-owner of the vehicle has not pleaded in his written statement, even after appearance before the learned Tribunal nor adduced any evidence, as such, being the court of appeal, the appellant is not entitled to agitate the issue in view of the judgment passed by the Apex Court in the case of Ramchandra (Supra).

Accordingly, the Miscellaneous Appeal No. 256/2018 is hereby dismissed.

So far the M.A. No.76/2018 is concerned, learned counsel for the appellant-Insurance Company, Mr. Ashutosh Anand has submitted that once the violation of terms and condition of the policy has been found by the learned Tribunal, then it was incumbent upon the Tribunal to direct the owner of the vehicle to indemnify the award instead of directing the Insurance Company to pay and recover the same from the owner of the vehicle after indemnifying the award to the claimant.

Learned for the appellant, Mr. Ashutosh Anand has further submitted that interest has been awarded @ 9% per annum from the date of admission of the claim application under Section 166 of the Motor Vehicles Act i.e. 21.07.2015, which is exorbitantly high, it ought to have been @ 7.5 % per annum in view of 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).

Mrs. J. Mazumdar appearing for the respondent-owner of the offending vehicle has submitted that in view of the judgment passed by the Apex Court in the case of National Insurance Company Limited Vs. Swarn Singh reported in (2004) 3 SCC 297 as well as in the case of Oriental Insurance Company Limited Vs. Nanjappan & Others reported in (2004) 13 SCC 224, this eventuality has already been placed before the Hon'ble Apex Court and the Hon'ble Court has directed to Insurance Company to indemnify the award and realize the same from the insured / owner of the vehicle, as such, this issue is no more res integra before this Court.

This plea is not available to the appellant in view of the aforesaid judgment, accordingly the same is rejected.

So far interest granted @ 9% per annum is concerned, it is true that interest may be granted either from the date of admission or date of settlement of issue or date of closure of claimant's evidence or date of closure of defendant's evidence or date of judgment but that should be given with reasoning, otherwise interest should be given from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act. However, this Court is not inclined to interfere with interest

which has been granted @ 9% per annum from the date of admission of the claim application i.e. 21.07.2015 as because interest @ 7.5% per annum from the date of filing of the claim application, which is of the year 2013, will not cause much difference and apart from that, loss of consortium to the tune of Rs.40,000/- as held by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 paragraph-59.8 has also not been paid. Accordingly, this Court is not inclined to interfere in such issues.

Accordingly, the Miscellaneous Appeal No.76/2018 preferred by the Insurance Company is also hereby dismissed.

The statutory amount deposited by the appellant-owner shall be remitted to the learned Tribunal by learned Registrar General of this Court within a period of four weeks from today and if the awarded amount along with interest has already been indemnified by the Insurance Company then Tribunal shall remit the same to the Insurance Company after calculating the interest.

If award amount has already been deposited by the appellant- Insurance Company in compliance of the order dated 28.09.2019 passed by this Court then the statutory amount, which shall be received by the learned Tribunal from the Insurance Company after transfer from this Court shall be given to the Insurance Company or if the claim amount has not been satisfied / indemnified by the Insurance Company till date, the same shall be indemnified to the claimant and balance amount shall be indemnified by the Insurance Company within a reasonable time as the accident is of dated 26.06.2013.

The right of recovery, which has already been granted by the learned Tribunal in favour of the Insurance Company, shall remain intact.

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