The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.11509 of 2004 Ambika @ Ashoka Hota ....... Petitioner -Versus- General Manager, S.E.C.L., Brajarajnagar & ors. ....... Opposite Parties For Petitioner : Mr. P.N. Mishra, Advocate For Opposite Parties : Mr. A.K. Mishra, Advocate ................... CORAM: JUSTICE SANJAY KUMAR MISHRA ___________________________________________________________ Date of Hearing and Judgment: 10.04.2024 ___________________________________________________________ S.K. MISHRA, J. 1. The present writ petition has been preferred by the Petitioner, who is the claimant before the Court below, challenging the order dated 17.05.2004 passed in Misc. (A) Case No.25 of 1991 (S) by the Second Motor Accidents Claims Tribunal : Northern Division: Sambalpur. Page 1 of 11 2.
Legal Reasoning
The brief background facts, which led to filing of the writ petition are that the Petitioner met with a road accident and getting injured, approached the Court below claiming the compensation of Rs.70,000/-. Being noticed, the Opposite Parties appeared and filed their written statement denying the accident in question involving the offending vehicle. However, the Court below allowed the said Misc Case partly against the Opposite Party Nos.1 to 3, who have also been arrayed as Opposite Party Nos.1 to 3 in the present writ petition and dismissed the same against the Opposite Party No.4 vide judgment dated 16.07.2002. 3. It was held vide the judgment dated 17.05.2004 that the Petitioner (Applicant before the Court below) is entitled to get compensation of Rs.20,000/- and Opposite Party Nos.1 to 3 are liable to pay the same within two months from the date of order, failing which they are liable to pay interest @ 9% per annum from the date of application i.e. 25.03.1991, till its realization. 4. The said judgment dated 16.07.2002 was communicated to Opposite Party Nos.1 to 3 vide letter dated 31.07.2002 by the Second M.A.C.T., Sambalpur. On Page 2 of 11 26.12.2002 the present Opposite Party Nos.1 to 3 filed petition before the Tribunal to supply a copy of the said order on the ground that they have not received the copy of the order dated 16.07.2002. Thereafter, the Opposite Party Nos.1 to 3 received a copy of the said order on 27.12.2002 and deposited Demand Draft dated 26.02.2003 for an amount of Rs.20,000/- before the court below on 03.03.2003. 5. Since there was a conditional order that if the Opposite Party Nos.1 to 3 fail to pay the awarded compensation amount within two months from the date of order, they would be liable to pay 9% interest on the awarded amount, the Petitioner filed a petition on 17.03.2003 before the Court below to direct the Opposite Party Nos.1 to 3 to pay the interest, as they have failed to pay the awarded compensation amount within the stipulated time, as ordered by the Court below. 6. However, the Court below, vide impugned order dated 17.05.2004, rejected the said petition of the Petitioner claiming interest on the awarded amount on the ground that the copy of the award does not appear to have been served Page 3 of 11 on the Opposite Parties in time, for which they took a copy of the same on 27.12.2002 and obtained Demand Draft for payment on 26.02.2003, which was received by the Court below on 03.03.2003. While rejecting the said petition, the Court below observed that since the amount was released to be paid by Demand Draft on 26.02.2003 i.e. within two months from the date of receipt of the said order, hence no interest can be charged. 7. Being aggrieved by the said order, the Petitioner has approached this Court in form of the present writ petition. 8. Learned Counsel for the Petitioner, drawing attention of this Court to averments made in the paragraph no.9 of the writ petition so also response of the Opposite Party Nos.1 to 3 to paragraph no.16 of their Counter Affidavit submitted that though there is a specific averment
Decision
in paragraph-9 of the writ petition that the judgment/award dated 16.07.2002 was communicated to the Opposite Parties 1 to 3 vide letter no.373 dated 31.07.2002 by the Court below, the said averment has not been specifically dealt and denied in the Counter Affidavit. Page 4 of 11 9. That apart, learned Counsel for the Petitioner further submitted, even if for the sake of argument, it is accepted that the copy of the award was supplied to the Opposite Party Nos.1 to 3 on 27.12.2002, still the deposit was made after two months from the date of receiving the copy on 03.03.2003, though the draft was prepared on 26.02.2003. The Court below, while dealing with the petition of the present Petitioner, acted contrary to his own direction in the award dated 16.07.2002, vide which it was ordered to make the payment within two months from the date of award, not from the date of communication to be made to the present Opposite Party Nos.1 to 3. Learned Counsel for the Petitioner further submitted that there was no such direction to communicate a copy of the said order to the contesting Opposite Parties and they being parties to the proceeding before the Court below, it was obligatory on their part to act in terms of the direction given by the Court below in Misc. (A) Case No.25 of 1991 (S) suo motu. 10. In response to the said argument advanced by the learned Counsel for the Petitioner, Mr. Mishra, learned Counsel for the Opposite Party Nos.1 to 3, drawing attention Page 5 of 11 of this Court to Sub-Section (2) of Section 168 of Motor Vehicles Act, 1988 submitted, it is obligatory on the part of the Tribunal to deliver the copies of the award to the parties concerned expeditiously and in any case, within a period of fifteen days from the date of the award. But the award was never communicated to his clients in terms of the said legal provision. 11. In response to the said submission made by the learned Counsel for the Opposite Party Nos. 1 to 3, learned Counsel for the Petitioner, drawing attention of this Court to Sub-Section (3) of Section 168 of Motor Vehicles Act, 1988, submitted, when an award is made under the said section, the person, who is required to pay any amount in terms of such award, shall, within thirty days of the date of announcing the award by the Claims Tribunal is to deposit the entire amount awarded in such manner as the Claims Tribunal may direct. 12. Mr. Mishra, learned Counsel for the Petitioner further submitted that in view of such specific provisions of law under the Act, 1988, the stand taken by the Opposite Party Nos.1 to 3 before the Court below so also before this Page 6 of 11 Court is un-sustainable. While passing the impugned order, the Court below also acted contrary to the said provisions under Sub-Section 3 of Section 168 of M.V. Act, 1988. 13. Learned Counsel for the Petitioner further submitted, the award itself is defective as because the Tribunal ought to have directed to pay interest from the date of submitting application till the date of realization, but a condition was put contrary to statute to pay the said amount within two months, failing which it was ordered that Opposite Party Nos.1 to 3 are liable to pay the interest. The present Petitioner ought to have challenged the said order. However, since the Opposite Party Nos.1 to 3 did not act in terms of the order passed by the Court below, they are liable to pay interest as observed in the said award. 14. In view of the submission made, it would be apt to extract below Sections 168 & 171 of the Act, 1988 for ready reference:- “168. Award of the Claims Tribunal- (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or as the case may be, each of the claims and, subject to the provisions award of [Section 163] may make an Page 7 of 11 determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this Section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.” “171. Award of interest where any claim is allowed. – Where any Claims Tribunal allows a claim for compensation made under this Act such tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.” (Emphasis Supplied) 15. It may not be out of place to mention here that in National Insurance Co Ltd. Vs. Keshav Bahadur reported in (2004) 2 SCC 370, the apex Court held that even though the expression “may” is used as per Section 171 of the M.V. Act, 1988, a duty is laid on the Tribunal to consider the question of interest separately with due regard to the facts and circumstances of the case. Page 8 of 11 16. Similarly, in Kaushnuma Begaum (Smt.) and others Vs. New India Assurance Co. Ltd. and Others reported in (2001) 2 SCC 9, on the question of rate of interest to be awarded, it was held by the apex Court that though earlier, 12% was found to be the reasonable rate of simple interest, but with a change in economy and the policy of Reserve Bank of India it was ordered to pay interest @ 9% to the claimants. In United India Insurance Co. Ltd. and others Vs. Patricia Jean Mahajan and others reported in (2002) 6 SCC 281 the apex Court reduced the rate of interest to 9% in place of 12%, as awarded by the High Court. In Abati Bezbaruah Vs. Dy. Director Genera, Geological Survey of India & anr. reported in (2003) 3 SCC 148, it was held by the apex Court that the question as to what should be the rate of interest would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time. Accordingly, it was held that the Appellant is entitled to 9% interest. Page 9 of 11 However, in the present case, the Tribunal, instead of awarding interest on the awarded amount of Rs.20,000 in terms of the settled position of law, passed a conditional order that if the present Opposite Party Nos.1 to 3 fail to pay the awarded amount of compensation of Rs.20,000/- within two months from the date of award, they shall pay the same with interest at the rate of 9% per annum from the date of application i.e. 25.03.1991, till its realization. 17. From the arguments advanced by the learned Counsel for the parties, pleadings and documents on record and in view of the provisions under Section 168 and 171 of the Act, 1988, as extracted above so also settled position of law, this Court is of the view that the Petitioner ought to have been paid the awarded amount within thirty days from the date of pronouncement of the award by the Tribunal. The Court below ought to have ordered for payment of interest on the awarded amount from the date of filing application till the date of payment, instead of passing a conditional order to pay interest, as detailed above. This Court is of further view that the Court below passed an Page 10 of 11 erroneous and illegal order dated 17.05.2004 rejecting the petition of the present petitioner (applicant before the Court below) for payment of interest in terms of award dated 16.07.2002 passed in Misc. (A) Case No.25 of 1991 (S) misinterpreting its own award and the impugned order dated 17.05.2004 passed in Misc. (A) Case No.25 of 1991 (S) is liable to be set aside. Accordingly, the said order is set aside. 18. The Opposite Party Nos.1 to 3 are directed to pay the interest in terms of observation made in the award dated 16.07.2002 passed in Misc. (A) Case No.25 of 1991 (S) within a period of eight weeks hence. 19. Urgent certified copy of this order be granted on proper application as per rule. ….…...…………….. S. K. Mishra, J. Orissa High Court, Cuttack. Dated, 10th April, 2024/ Banita Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Apr-2024 15:34:56 Page 11 of 11