Gujarat High Court
United India Insurance Co. Ltd. vs Ramanbhai Kachrabhai Raval And Ors. on 23 November, 1995
Equivalent citations: 1996ACJ524, (1996)1GLR553
Author: A.R. Dave
Bench: A.R. Dave
JUDGMENT N.J. Pandya, J.
1. Amendment allowed. This appeal has been preferred on all counts by the insurance company which ordinarily it would not be permitted to do. The company, however, had taken precaution before M.A.C.T. (Aux.) of Kheda at Nadiad in M.A.C. Petition No. 1237 of 1990 to obtain permission by filing application Exh. 41 and the learned advocate, Mr. Parikh, on behalf of the appellant was, therefore, heard on all points.
2. The first point raised was that the F.I.R. indicates an intentional act on the part of the driver of the offending truck No. GRT 4728. However, copy of the F.I.R. shown to us by the learned advocate does not show any intentional act at all and the learned Tribunal Judge, while dealing with this aspect under issue No. 1, has, in our opinion, correctly dealt with the situation. A faint attempt was made to make out that the F.I.R. relied on for the purpose is not the one which was submitted by the autorickshaw driver. However, the company itself is relying upon it in its written statement Exh. 55 and after discussing that and other material on record the learned Judge has come to the conclusion that it is a negligent act and not an intentional one, as pleaded by the learned advocate. Learned advocate Mr. Parikh appearing for the appellant drew our attention to para 7 of the judgment where the learned Tribunal Judge has in clear terms written that the F.I.R. lodged by opponent No. 1, truck driver, at mark 21/8 is not exhibited because the insurance company did not admit the same. However, it has chosen to rely on it and admit it in evidence because a certified copy has been produced. In our opinion, this course of action is correct. It is a report from the driver involved in that vehicular accident, of which under Motor Vehicles Act, he is duty-bound to make a report to the nearest police station. The F.I.R. lodged by a driver, in such circumstances, assumed the character of statutory requirement. The certified copy, therefore, can be exhibited. However, the submission of Mr. Parikh is that the F.I.R. given by the autorickshaw driver and which is exhibited on account of it having been admitted by the insurance company if read with the F.I.R. produced by the truck driver, they would create a contradiction and the circumstances obtained from the F.I.R. of the autorickshaw driver would indicate that it was an intentional act. We are given a copy thereof and we have gone through it and one can possibly argue that it discloses an intentional act; but a plain reading, in our opinion, of that F.I.R., Exh. 51, does not indicate anywhere that it was an intentional act. It merely narrates the manner in which the incident happened. In our opinion, therefore, there is no contradiction between the two, much less, therefore, there is any possibility of it helping the company in making out its defence of the act being intentional.
3. Learned advocate Mr. Parikh next pointed out that at the time of the incident, the truck was used for a purpose other than the one for which it is permitted. It is a goods carrier and, therefore, the permit ordinarily would be for carriage of goods. From the record it is quite clear that at the time of the incident, the truck has carried a marriage party and as such, it being a goods truck, it would appear to be in contravention of the permit. However, the insurance company, in spite of examining as a witness a clerk from the R.T.O., has rest content with getting produced only an extract of permit register. But the permit itself has not been produced. In a Full Bench decision of this court it has been held that when the company raises a dispute pertaining to a permit issued by the R.T.O., the burden is on the company to discharge the same and it can be shown by producing the permit itself or a copy. That has not been done in the instant case.
4. The next point raised by Mr. Parikh is that the victim being a third party or a pedestrian, at best, the company's liability will be to the extent of Rs. 3,00,000/- as per the policy. However, the policy has been issued in the month of October, 1989, that means, in the 3rd month after coming into operation of the new Motor Vehicles Act. The policy will, therefore, be governed by the statutory provision of this new Act. In our opinion, therefore, this defence will also not be available to the company.
5. There is one more point so far as the company is concerned. It is with regard to the transfer of vehicle. Opponent No. 2 was the original owner and opponent No. 2-A is said to be the transferee. A clerk from the insurance company, one Bipin-bhai, Exh. 56, was examined on this point. He has not been cross-examined. We are shown a copy of his deposition. He merely says that the truck is registered in the name of opponent No. 2-A and prior to that opponent No. 2 was the registered owner. He also gives the date of transfer which is 5.4.1990. That is the only short deposition given by him. The learned Judge felt that this is not enough of an evidence whereby the company can claim to be exonerated from its liability under the terms of the contract of insurance because unless it is stated categorically by the insurance company by leading evidence through its witness or any other manner that the company was never put to notice about its transfer, that it had never accepted the transfer, and that but for the incident, they would not have known about the transfer, the insurance company cannot be exonerated from its liability. However, what the witness says is that the truck came to be transferred on 5.4.1990 and beyond that he does not disclaim anything with regard to the liability. This is the reason possibly why he has not been cross-examined. This point also, therefore, does not help the appellant.
6. The last point urged is about the rate of interest at 15 per cent awarded by the learned Tribunal Judge. This, according to the appellant, is on higher side. Learned advocate Ms. Megha Jani appearing for the other side has relied on a decision of this court reported in 34 (1) GLR 249, where interest given by the Tribunal at the rate of 6 per cent has been adequately revised and placed at 15 per cent. No doubt, as against that, General Manager, Kerala State Road Transport Corporation. v. Susamma Thomas 1994 ACJ 1 (SC), has been relied on by Mr. Parikh to show that the Hon'ble Supreme Court has also maintained the rate of interest at 12 per cent. This had prompted learned advocate Ms. Jani appearing for the other side to point out that the Tribunal at Nadiad in other group of matters has taken pains to hear all the advocates appearing, i.e., for the claimants and for insurance company usually in Motor Accident Claim Petitions and had expressed an opinion that 15 per cent interest should be given as a matter of rule because as expressed in the said 34 (1) GLR 249, all the relevant factors, including the rising prices, inflationary pressure and falling value of rupee are required to be considered. Mr. Parikh to some extent is right when he submits that whatever efforts that the learned Tribunal Judge might have put in for arriving at that figure, unless the reasons thereof are to be found in the award sought to be challenged, it cannot be considered at all. We agree with him. The award in order to be complete has to be self-contained and whatever conclusions are arrived at, the reasons for the same should be found in the award itself. However, so far as the request for interfering with the said order of interest is concerned we are not inclined. We have gone through both these judgments and so far as the interest is concerned, there being no rate fixed by the statute other than that it is held to be within the realm of discretion of the concerned Tribunal, we will not interfere with the same. Apart from that on merit, if one reads the judgment it is clear that the promotional chances referred to on behalf of the claimants up to the stage of police sub-inspector has been answered by the learned Tribunal Judge on the ground that it depends upon the efficiency and many other factors. But the learned Judge has gone mainly by the income certificate, Exh. 38, where the monthly income is shown to be Rs. 2,170/- on the basis of monthly salary being Rs. 1,000/- plus DA 114 per cent. The maximum of the scale has been taken into consideration and putting the figure of Rs. 3,000/- at the maximum scale, the learned Judge has arrived at a mean figure of Rs. 2,170/-. This means that future increase in the income on account of promotion or upward revision of pay has not been taken into consideration, instead the existing scale has been considered and the amount of salary drawn at the time of incident, what could have been drawn on the date of the award and what likely amount he would have got at the end of the scale that has been taken into consideration. Under the circumstances, we are not inclined to interfere with the rate of interest awarded by the Tribunal. Hence, this plea of interest is rejected.
7. The amount of Rs. 25,000/- deposited by the appellant company in the High Court is ordered to be transmitted to the Tribunal at Nadiad. On receipt of the amount, the Tribunal shall disburse the amount as per the order.
8. In the result, the appeal is rejected with no order as to costs. No order on C.A.