AT BILASPURFC.G.1 v. AP15

Shri Sudhir Agrawal, counsei for the appeilant. Shri K.K. Dewangan, counsel for respondent No. 3. AWARD (08.07.2013)

1. Thi's Js Insurer's appeal against the award dated 31.01.2007 by Vi!th AddJtiona? Motor Accident Claims Tribuna!, Ralpur (for short jthe Tribunai3) in cjaim case No. 80/2006.

2. As agajnst the compsnsati'on of Rs.2,18,000/- claimed by husband and son of deceased - Savitri Bai by fiting cjalm petition under Section 166 of the Notor Vehicles Act, 1988 (for short 'the MV Act') for her death on 10.07.20061n the motor accident dated

4.4.2006, the Tribunaj awarded a totai sum of Rs.1,75.000/- as compensatjon along with jnterest @ 7 % per annum, if paid wlthin a period of 30 days and in default @ 9 % per annum from the date of fijjng of ctajm petittGn tiil Jts actual payment \

3. The Tribunaj, on a ciose scrutiny of the evjdence led, he3d; the accident had occurred due to rash and negligent driving of Toyota Quaj-is (offending vehicie) bearing registratlon No. CG- 12/8104 by ifs owner-cum-driver i.e. respondent No. 3 -Preetam Kumar Sonkar; Savitri Bai, who was sitting as an occupant in the offending vehicte, died on account of the jnjuries sustalned by her in the said accident; appellant/The Oriental Insurance Company Llmited liable for payment of compensation as it couid not estabjish vlolation of policy conditions; and assessed ^nd awarded aforesaid sum as compensation.

4. Shri Sudhir Agrawal, learned counsel appearing for the appeilant while admitting the fact that policy issued in the case js a package policy which covers unljmited risk of occupant of the offending vehicle wouid submit: deceased Savitri Bai w^s sjtting jn offending vehicle as a fare paying passenger; Insurance Company has not assumed the risk of fare paying passenger sittjng in the vehicje and, therefore, the Tribunal has erred in fastenjng the Ijabjlity of paymenf of compensation upon the appellant/insurance Company. It was further contended that claimants have failed to establish the casual connectjon jsetween accjdental injuries sustained by deceased and her death and, therefore, the Tribunal has further erred in awardlng compensation treating the case as a death case. It was atso submitted that the Tribunal has further faiten in error in awarding pena) interest.

5. On 4he .other hand, learned counsel appearing for respondent N,d. 3 supported the award jmpugned. \

6. I have heard leamed counsel for the parties and perused the material avaKable on record including award impugned. J'*

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7. Admittedjy, the pojicy issued in the case i's a package policy, whteh covers the risk of occupant of the vehicie. To establjsh the that deceased was sitting in the vehicte as a fare paying passenger, no evidence has been ied by the appellanflnsurance Company. Appeliant/Jnsurance Company has further not brought on record any materia! by cross-examinjng the claimants' witness to establish the above fact. Therefore, the first contention raised by Mr. Agrawal, on the face, is devoid of merit.

8. Deceased- Savitri Baj suffered head injury In the said accident and was referred to higher center by Dhamtari Christlan Hospi'tal, Dhamtari, thereafter, she was undergotng treatrnent jn the Modern Medicai Institute, Raipur and, thus it cannot be said that she had not dled on account of the jnjuries sustained by her in the said accident and the second contention raised by Mr. Agrawaj aiso sans substance.

9. However, pena! Interest awarded by the Tribunal, on the face suffers from legaj infjrmity. The Supreme Court in case of Natjonal Insurance Co. Ud.

10. v. Keshav Bahadur and others1 has observed in para 13 as under: "13. Though Section 110-CC ofthe Act (corresponding to Section 171 of the New Act) confers a discretlon on the Tri&unal to award interest, the same is meant to be exercj^ed in cases where the claimant can ciajm the same as a matter of right. In fhe above background, it js to be judged whether a stipulatjon for higher rate of jh case of default can be imposed by the jnterest Tribunal. Once the discretjon has been exercised by 2004 (2)SCC 370 l /'y-^:';^ . 8|fe<, rw~wsi ?,, '^..^' ^^.....^ ^o the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default jn payment of compensation. No express or jmpiied power in thjs regard can be culJed ouf from Section 110-CC of the Act or Section 171 ofthe new Act. Such a direction in thereon virtually payabie the award for retrospective enhancement of jnterest for default jn payment of the compensation together with interest impositjon of penalty which js not statutorify envisaged and prescribed. !t is, therefore directed that the rate of interest as awarded by the High Court shaJJ alone be applicable tili paymenf, without higher rate of interest being enforced, the stipulation for in the manner amounts dlrected by the Tribunal."

11. In vjew of the above, jt is crystaj clear that the Trlbunai has wrongly awarded the penal interest. The same deserves to be and js hereby set aside.

12. For the reasons mentioned herelnabove, the appeal allowed in part. Direction of Tribunal for payment of penal jnferest If award amount is not paid withjn a period of one month is set aside. Amount of compensafion of Rs. 1,75.000/- shall carry flat rate of interest i.e. 7 percent per annum from the date of application tii( its actuai payment. Rest of the conditions mentloned jn the award shall remain intact. No order as to costs. -—— '\ Sd/- N.K.Agarwal Judge ./ ^m