Orissa High Court
Oriental Insurance Company Ltd vs Basanti Devi & Anr on 6 January, 2012
V.GOPALA GOWDA, CJ.
M.A. NO. 97 OF 2002 (Dt.06.01.2012)
ORIENTAL INSURANCE COMPANY LTD. ... ...Appellant.
.Vrs.
UMA SANKAR GUPTA & ANR. .........Respondents.
MOTOR VEHICLES ACT, 1988 (ACT NO.59 OF 1988) - Ss.168, 173
r/w Order 41 Rule 33 C.P.C.
For Appellant - M/s. A.K.Mohanty, M.C.Nayak &
D.C.Dey.
For Respondents - Mr. D.Mund & S.K.Sahu.
V. GOPALA GOWDA, C.J. This Miscellaneous Appeal is directed against the
Judgment/Award dated 4.10.2001 passed by the Shri A.K.Das, Addl. District Judge - cum-M.A.C.T., Nabarangpur in M.J.C. No.46 of 2000 in allowing the application filed by the petitioner by answering the contentious issues in favour of the respondent/claimant and fastening the liability upon the appellant-Oriental Insurance Company to pay sum of Rs. 1,55,000/- ( Rupees One Lakh Fifty Five Thousand) with interest @ 9% per annum from the date of application within a period of thirty days, in default it shall be liable to pay interest @ 12% per annum on the awarded amount till realization urging various grounds.
2. The ground of attack on the quantum of compensation awarded in this impugned judgment by the Tribunal is that the compensation awarded is more than the claim made by the claimant at Rs. 65,000/-. Therefore, the impugned judgment is bad in law and liable to be set aside and prayed for modification of the same by awarding compensation at Rs.65,000/- and the penal interest awarded is arbitrary, unreasonable and therefore liable to be set aside. The second ground of attack of the impugned judgment is that Respondent No.2 who is the custodian of the driving licence has failed to produce the same and the fact of non-production of the driving licence, the Tribunal ought not to have awarded the compensation in favour of the respondent/claimant fastened the liability upon the Insurance Company and further the Tribunal ought to have seen the driving licence which is a fake one and there is violation of the terms and condition of the policy in allowing the driver who did not possess effective and valid driving licence. Therefore, the Tribunal ought not to have awarded compensation in favour of the first respondent/claimant.
3. This Court has called upon the learned counsel for the appellant to make submission with reference to the judgment of the Hon'ble Supreme Court in the case of Delhi Electric Supply Undertaking Vs. Basanti Devi & Anr., reported in AIR 2000 SC 43, as to why the compensation in the appeal filed by the Insurance Company shall not 2 be enhanced if the compensation awarded in favour of the claimant in the impugned judgment is inadequate and his legitimate right to get adequate compensation had not been determined and awarded just and reasonable compensation keeping in view the decision of the Supreme Court in the case of Lata Wadhwa Vs. State of Bihar, reported in (2001)8 SCC 197 wherein the Apex Court has laid guiding principles to award compensation in respect of minor children died in an accident who have no independent income. The minor children were divided into two groups, i.e. the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. The guiding principle laid down in the aforesaid case has to be followed by the Tribunal for the purpose of awarding compensation. This Court has applied the above referred case in W.P.(C) No. 3214 of 2010 and batch of cases in the case of Guri Behera Vrs. Divisional Railway Manager, East Coast Railway, Khurda Road, Jatni etc and awarded just and reasonable compensation in favour of the petitioners in those cases.
4. Learned counsel Mr. A.K.Mohanty appearing for the appellant strongly opposed for enhancement of compensation with reference to the above decision of the Apex Court contending that in the appeal filed by the Insurance Company is aggrieved of the impugned judgment in awarding compensation awarded by the Tribunal in favour of the claimant more than the claim made and therefore he would contend that enhancing the amount of compensation in favour of the claimant in this appeal is wholly untenable in law. Therefore, to that extent, the impugned judgment is required to be modified and also set aside the penalty interest awarded at 12% by allowing the appeal of the Company. Therefore, learned counsel for the Insurance Company submits that the exercise of power by this Court invoking Order 41, Rule 33 C.P.C. by placing reliance upon the judgment of the Supreme Court referred to supra which principle has been followed by decisions of the Supreme Court in the case of Ranjana Prakash & Ors. Vs. Divisional Manager & Anr., reported in 2011(5) Supreme 382 and in the case of Sanjay Parihar & Ors. Vs. Munnalal Parihar & Ors., reported in 2011 (7) Supreme 459 is not correct. The facts of those cases have no application to the present case on hand. Therefore, he requested this Court not to enhance the compensation in the appeal filed by insurance company by modifying the impugned judgment.
5. Learned counsel for the first Respondent justified the compensation awarded by the Tribunal keeping in view the decision of the Hon'ble Supreme Court and further contends that the compensation awarded is inadequate though cross appeal or objection not filed in this appeal, the claimant is entitled to seek for enhancement of the compensation in the appeal of the Insurance Company by invoking his right under Order 41, Rule 33 CPC and the decisions of the Apex Court referred to supra. In view of the above said decisions of the Supreme Court learned counsel for the first Respondent submits that according to the judgment of the Supreme Court which decision in the case of Lata Wadhwa Vs. State of Bihar has been followed by the Division Bench of this Court in the case of Guri Behera referred to supra, awarded just compensation and therefore he submits that the claimant-first respondent is entitled for enhancement of compensation with interest. Hence, the claimant's counsel has requested this Court for enhancement of compensation for which he is entitled in law, as this Court is required to determine the just and reasonable compensation as the Tribunal has not applied guiding principles for awarding just and reasonable compensation which is the statutory duty of the Tribunal. Therefore, he submits that it is a fit case for this Court to 3 enhance the compensation in favour of the first respondent in the appeal filed by the insurance company.
6. With reference to the above rival legal contentions, the following points that would arise for consideration of this Court are
(i) Whether the compensation awarded by the Tribunal at Rs. 1,55,000/- is excessive and if, it is inadequate, at the instance of the appellant /Insurance Company the same can be interfered with and enhanced by this Court ?
(ii) In view of the law laid down by the Hon'ble Supreme Court in the case of Delhi Electric Supply Undertaking Vs. Basanti Devi & Anr., reported in AIR 2000 SC 43, and other decisions if the compensation awarded by the Tribunal is on the lower side, whether order 41, Rule 33 of the CPC is required to be applied by this Court in the facts situation of the case and award just compensation?
(iii) What award?
7. Both the first and second points are required to be answered together in favour of the claimant as they are inter-related in view of the claim made by him.
8. It is an undisputed fact that at the time of accident, the deceased son of the petitioner was aged about 13 years and he was studying in Class-VII and was intelligent and a good student. It is an undisputed fact that the offending vehicle dashed against the deceased who was coming after attending the call of nature and was walking at the left side of the road. The claimant filed a claim petition before the Tribunal to award compensation. Before the Tribunal, no doubt the claim was made by the claimant at Rs. 65,000/-. Statutory duty cast upon the Tribunal irrespective of the claim to determine just and reasonable compensation in the claim case and award the same by applying the guiding principles applicable to the fact situation. Applying the guiding principles laid down by the Apex Court in Lata Wadhwa Vs. State of Bihar referred to supra, this Court has awarded the compensation in a railway accident claim cases in the case of Guri Behera Vs. Divisional Railway Manager, East Coast Railway, Khurda Road, Jatni (in W.P.(C) No. 3214 of 2010 and batch of cases decided on 10.2.2011). Therefore, the quantum of claim made by the claimant is not the relevant criteria for the Tribunal for determination of just and reasonable compensation on the date of passing the award but the entitlement of compensation is the relevant criteria. The just and reasonable compensation would be in this case having regard to the age of the deceased boy is at Rs. 2,50,000/-. The Tribunal in not awarding just compensation has deprived the legitimate and statutory right conferred upon the claimant. Therefore, the guiding principles laid down by the Hon'ble Supreme Court in the case of Lata Wadhwa Vs. State of Bihar referred to supra shall be applied to the facts of the present case. In the present case, the claim made by the claimant is at Rs. 65,000/-, but the Tribunal has considered that as the claim made by the claimant is inadequate, it has awarded the compensation amount to Rs.1,55,000/-. Therefore, the question of challenging that portion of the award by the Insurance Company is totally impermissible in law more than one reason namely, as the compensation claimed by the claimant is inadequate, a sum of Rs. 2,50,000/- should have been awarded as compensation by the Tribunal. The same has not been done. Secondly, the Insurance Company should not have challenged the quantum of compensation as the offending vehicle was insured with the 4 Insurance Company. Therefore, the first point is answered against the Insurance Company and the appeal filed by the Insurance Company is required to be partly allowed with regard to the penal interest awarded. In view of Order 41, Rule 33 of the CPC and law laid down by the Apex Court in the case of Delhi Electric Supply Undertaking Vs. Basanti Devi & Anr., which principle is reiterated in the subsequent decision of the Apex Court in the case of Sanjay Parihar & ors Vs. Munnalal Parihar & Ors., the guiding principles laid down by the Apex Court in the case of Lata Wadhwa Vs. State of Bihar referred to supra, with all fours is applicable to the fact situation of the present case. Accordingly, the second point is also required to be answered in favour of the claimant by enhancing the compensation of Rs.1,55,000/- awarded by the Tribunal to Rs. 2,50,000/- with interest @ 6% per annum on the enhanced amount only from the date of appeal till the payment. The penal interest @ 12% which has been awarded by the Tribunal at Rs. 1,55,000/- is hereby set aside as the compensation awarded by the Tribunal has been enhanced to Rs.2,50,000/- which is adequate and reasonable compensation in exercise of this Court's power under Order 41, Rule 33 CPC. Accordingly, the appeal filed by the Insurance Company is partly allowed to the above extent. The award of the Tribunal is modified to the extent that interest @ 9% on Rs.1,55,000/- shall be paid to the claimant from the date of claim application to the date of payment and interest at the rate of 6% on the enhanced amount of Rs.95,000/- shall be paid from the date of filing of the appeal till the date of payment.
9. The Misc. Appeal is accordingly disposed of in the above terms by modifying the impugned judgment. Office is directed to draw the award. The Insurance Company shall pay the awarded compensation with interest within four weeks from today, less the statutory deposit amount/paid to the claimant. The statutory deposit shall be transmitted to the Tribunal along with the interest amount earned by the Registry of this Court to facilitate the claimant to draw the same.
Appeal disposed of.