New India Assurance Co. Ltd. v. Ahilya Devi & Others

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes 2011:DHC:3348 INDERMEET KAUR, J. (Oral)

1 The impugned award is dated 25.10.2008 vide which a sum of Rs.4,42,000/- had been awarded in favour of the claimants. This was in Claim Petition No. 118/2007. This was a death accident case; Pramod Kumar had succumbed to his injuries in the accident which had occurred on 09.06.2007. On the same date, Jeet Singh had sustained injuries; in Claim Petition No. 184/2007 the claimants had been awarded a sum of Rs.1,04,000/-. Both the amounts were to carry interest @ 7.5% per annum from the date of the institution of suit till payment.

2 Two appeals had been preferred both of which shall be decided by a common judgment. 3 MAC Appeal No. 5/2009 had been preferred by the New India Assurance Company. The contention of the appellant is that on the date of accident, the driver did not have a valid permit; this was noted in the trial Court. Before the appellate Court the owner (appellant in MAC Appeal No. 275/2009) had produced the second permit which on verification was found to be valid. Learned counsel for the appellant/insurance company has fairly conceded that thus on the date of accident the offending vehicle had a valid permit. This point thus rests.

4 It has secondly been urged that the deceased Pramod Kumar was the driver of the offending vehicle; he was a workman and had his claim been assessed under the Workmen’s Compensation Act, the claim would have been not more than Rs.3,84,280/-; the awarded amount in the sum of Rs.4,42,000/- is thus liable to be set aside. Learned counsel for the appellant company has placed reliance upon a judgment of the High Court of Madras reported in 2004 (2) TAC 649 Madras Bhimavya & others Vs. Shankar alias Adya and others. This argument has been rebutted by learned counsel for the respondent; it is pointed out that under Section 167 of the Motor Vehicle Act, 1963 (hereinafter referred to as the ‘MV Act’) claimants have an option either to prefer their claim under the Workmen’s Compensation Act or under the MV Act. In this case, the claimants have preferred their claim under Section 163 (a) of the MV Act; attention has been drawn to the proceedings before the Claim Tribunal; it is pointed out that in the entire proceedings there has never been a whisper of this argument and the evidence brought forward by the insurance company which included a witness on their behalf had also nowhere disputed that the claim of the claimants was not liable to be considered under the MV Act.

5 This submission of learned counsel for the respondent has force; the option given to the claimants to opt for consideration of their claim either under the MV Act or under Workmen’s Compensation Act is a statutory option as contained in Section 167 of the MV Act. It is also borne out from the record that nowhere till the time of filing of this appeal this ground had been urged; it was never the objection of the insurance company that the claim of the claimants could not have been considered under the MV Act. This submission of learned counsel for the appellant is accordingly rejected.

6 It has lastly been submitted that the owner of the offending vehicle had produced the permit only in the appellate court; had this permit been produced by the owner before the Tribunal the insurance company could have been absolved of payment of interest as trial on the issue of the validity of the permit could have been avoided; because of the delay, the insurance company has been saddled to pay interest to the claimants. To support this argument, learned counsel for the appellant has placed reliance upon a judgment of this Court reported in AIR 2008 Delhi 90 Jagdish Prasad Paliwal Vs. National Insurance Company Ltd..

7 The last submission (as noted hereinabove supra) has no force. The judgment in Jagdish Prasad (Supra) was in a different context. In that case, it was held that the insurance company is liable to recover the interest for the delay which has occurred because of non-participation of the owner in the trial proceedings; facts of the case are distinct. In the present case the owner had validly participated in the proceedings in the trial court and the delay has not occurred for this reason; even otherwise this was not the only defence of the insurance company before the Tribunal; other defences had also raised; it had been contended that there was a negligence of the driver which had resulted in the accident. In this factual scenario the judgment of Jagdish Prasad (Supra) is not applicable.

8 At this stage, it is relevant to state that the second cross appeal i.e. MAC Appeal No. 275/2009 has been filed by the owner wherein his contention is that the insurance company has been absolved of all liabilities in Claim Petition No. 184/2007; this was an illegality and the entire liability could not have been fostered upon the owner. It is also relevant to state that inspite of notice having being issued to the appellant and the matter having being retained on Board, none has appeared for the appellant.

9 The amounts awarded i.e. sum of Rs.4,42,000/- in Claim Petition No. 118/2007 & Rs.1,04,000/- in Claim Petition NO. 184/2007 do not in any manner call for any interference. At this stage, it has been pointed out that the amounts has since been deposited by the insurance company and are lying in the FDR before the MAC Tribunal. In terms of the direction contained in the impugned awarded dated 25.10.2008, as and when amounts become due and payable to the claimants, the amounts would be paid over to them.

INDERMEET KAUR, J. JULY 07, 2011 a