Allahabad High Court
National Insurance Co. Ltd Thru Sr. ... vs Smt. Seema Tripathi And 7 Ors on 14 May, 2024
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:36897 Court No. - 21 Case :- FIRST APPEAL FROM ORDER No. - 425 of 2004 Appellant :- National Insurance Co. Ltd Thru Sr. Divisional Manager Respondent :- Smt. Seema Tripathi And 7 Ors Counsel for Appellant :- Rajesh Nath,Ravindra Pratap Singh Counsel for Respondent :- Anoop Srivastava,Manish Jauhari,P.K. Sinha,Suresh Punjwani Hon'ble Jaspreet Singh,J.
Heard Sri R.P. Singh learned counsel for the appellant Sri Jai Shukla holding brief of Sri Anoop Kumar Srivastava learned counsel for the claimant/respondent nos.2, 4 and 5. Sri Manish Johari for respondent no.7. None appeared on behalf of respondent nos.6 and 8.
The instant appeal has been referred under Section 173 of the U.P Motor Vehicles Act, 1988. Under challenge is the award dated 25.03.2004 passed by MACT/ADJ Court no.2 Unnao in Claim Petition no.136 of 1999 the claim tribunal allowed the claim petition of the claimant respondents and awarded a sum of Rs.12,97,000/- along with 9% interest per annum payable from the date of the petition till the date of actual recovery. Another observation was made that in case if the amount is not paid to the claimant within one month, it would attract enhanced rate of interest i.e 12% p.a. The tribunal also noticed that since it was the case of contributory negligence between two vehicles, accordingly, amount was apportioned between the two vehicles, each bearing liability of 50%.
The instant appeal has been preferred by the National Insurance Company ltd who is the insurer of truck bearing no.UHJ9452 belonging to the Hindustan Aeronautics ltd Kanpur Division who is respondent no.7 in the instant appeal.
Submission of learned counsel for the appellant is:
(i) it is urged that first and foremost the manner in which the evidence has come on record, it clearly established the negligence of the other vehicle bearing UP32A2037 belonging to Satanand Tiwari, the respondent no.6. Hence, for the said reason, no liability could have been fastened on the driver/truck owner of UHJ9454.
(ii) the other submission is that the deceased was travelling in the said truck no.UHJ9452 asgratuitous passenger for the said reason the insurer is not required to identify the award and if at all any liability arises, the same has to be placed squarely on the owner of the truck i.e. the respondent no.7.
(iii) the other submission of learned counsel for the appellant is that the tribunal has erred in saddling the appellant with penal interest i.e. to say that in case, if the awarded sum is not paid within a period of one month. The rate of interest as granted on the award of 9% p.a. shall stands enhanced to 12% p.a. This is apparently erroneous.
Sri Anoop Srivastava learned counsel for the claimant-respondent has refuted the aforesaid submissions and submitted that even if at all the deceased was gratuitous passenger the facts still remains that it is not disputed that he died in the motor accident and the owner of the truck no.UHJ9452 or its insurer are required to pay the amount to the claimant.
The dispute as to who is liable to satisfy the award is between the Insurance Company and the owner of the truck i.e inter se between them but that is not going to effect the rights of the claimants which have been crystallised in the aforesaid award.
Sri Anoop Srivastava learned counsel for the claimant-respondent could not dispute the submission that the tribunal has awarded penal interest of 12% p.a. in case, if the award is not serviced within stipulated period of one month.
As already noticed above, none has put in appearance on behalf of the United India Insurance Co.ltd though Sri M. Jauhari learned counsel is present for the respondent no.7. At this stage, it is relevant to notice that the appeal preferred by the respondent no.7 i..e the HAL deals the same award bearing FAFO no.170 of 2005 which was dismissed for want of prosecution on 24.07.2019.
The record further indicates that against the same award another appeal was preferred by United India Insurance Co. ltd bearing FAFO no.381 of 2004 which also came to be dismissed for want of prosecution and even though an application for recall on 30.10.2019 was moved in the said appeal which was also dismissed for want of prosecution as such the award in question has attained finality, insofar as the HAL is concerned as well as the United India Insurance Co. ltd.
A specific query was put to the learned counsel for the appellant that once the appeal of HAL the owner of the truck which was insured by the present appellant bearing no.170 of 2005 has been dismissed for want of prosecution and no effort has been made to recall or get the appeal readmitted then how the present appellant who is insurer of the truck no.UHJ9452 would have a right to assail the said award. Despite the award having been confirmed insofar the HAL is concerned i.e the owner of the insured truck.
Sri R.P. Singh learned counsel for the appellant could not dispute the aforesaid proposition nor he could make any submission to indicate that the appeal would be maintainable at the behest of National Insurance Co., once the appeal preferred by HAL stood dismissed for want of prosecution in July, 2019.
Be that as it may, insofar as the submissions made by the learned counsel for the appellant is concerned, suffice it say that the deceased was gratuitous passenger.
The claims tribunal has noticed this aspect of the matter and also taken note of the fact that the incident occurred on account of rash and negligent driving of both vehicles ie.UP32A2037 and UHJ9452 and 50% liability has been apportioned on each vehicle.
Once the aforesaid finding had been recorded it would be seen that the HAL the owner of the truck no.UHJ9452 had filed an appeal raising the aforesaid issue of contributory negligence. The insurer of other vehicle bearing no.UP32A2037 had also filed an appeal i.e. United India Insurance Co.Ltd vs Smt Seema Tripathi passed in FAFO no.381 of 2004 and both the appeals were dismissed for want of prosecution.
In the aforesaid circumstances, the finding regarding the deceased being a gratuitous passenger and the liability of the insurer viz-a-viz the owner of the respective truck as held by the tribunal has attained finality.
For the aforesaid reason, this Court is not inclined to enter into this controversy which has already been decided by the tribunal and the impact of the same was challenged in appeal no.381 of 2004 by United India Insurance Co.ltd and in appeal no.170 of 2005 by HAL and also dismissed even though in default.
As far as, the other submission regarding negligence is concerned, for the aforesaid reason the same is also not open for the present appellant as the aforesaid issue has also been raised and the appeals of HAL bearing no.170 of 2005 has been dismissed.
Another submission made by the learned counsel for the appellant is that since the deceased was a gratuitous passenger and as he was not covered in terms of Section 147 of the Motor Vehicles Act, 1988 hence no liability could be fastened on the Insurance Company and by apportioning the liability on the appellant Company and granting right of recovery is not permissible and to that extent is award is bad.
Having considered the aforesaid submissions, as a proposition it cannot be disputed that where there is no Insurance in such circumstances generally the award cannot be fastened on the Insurance company and liability vested clearly on the owner/driver of the vehicle involved.
In the instant case it may be true that the deceased was travelling as gratituous passenger and in such circumstances normally the Insurance Company cannot be made liable however, this Court notices the fact that the accident in question took place on 22.05.1998 and the award was passed on 25.03.2004 whereafter the appeal had been pending before this Court for last 20 years.
In such circumstances, this Court does not deem appropriate to interfere with the award so much as to modify the award and putting the entire liability on the owner of the truck. In the peculiar circumstances of the instant case since the right of recovery has already been granted to the Insurance Company hence it will have the right to recover the same from the owner.
For the last 20 years, it was open for the appellant to have paid the amount and initiate recovery against the owner but that has not been done and after such a long time i.e. after 26 years, this Court is not inclined to interfere purely on this ground.
The only issue that survives for consideration is regarding the penal interest. Suffice it to say that the tribunal did not have the jurisdiction to impose a higher rate of interest, failing, deposit of the amount awarded within a month.
This aspect of the matter has been considered by this Court in case of Oriental Insurance Company through Senior Divisional Manager vs Shushila Devi and ors; 2020 SCC Online All 1946, wherein this was considered and it was held that under the Motor Vehicles Act, the tribunal did not possess jurisdiction to award a higher rate of interest subject to not deposit the full amount within a time stipulated. The relevant portion reads as under:-
"Coming to the last submission regarding grant of penal interest. The aforesaid submission made by the learned counsel for the appellant has some force. This aspect of the matter has been considered by this Court in a case reported in Oriental Insurance Company Ltd.Vs. Mohd. Saleem and others [2014 (32) LCD 393] wherein it has been held that the tribunal while passing the award alongwith interest is not entitled to enhance the rate of interest in case if the award is not paid within the specified time.
"28. Before parting with the judgment, it is necessary to observe that under the statute there is no provision to fix penal interest and the direction of the tribunal in the judgment impugned that in case the appellants will not pay the awarded amount within time, then in that case the interest would be enhanced to 9% is not correct.
Therefore in view of the judgment of this Court as mentioned above, this Court is also of the opinion that the tribunal has erred in enhancing the rate of interest upon default in paying the amount within the time granted. It is held that the tribunal was not justified in granting penal rate of interest and to that extent the submission of the learned counsel for the appellant is upheld. "
In view of the aforesaid, this Court is of the view that the award dated 25.03.2004 shall stands partly modified to the extent that the awarded sum of Rs.12,97,000/- which has been divided equally between the owners of the two trucks shall hold the field. However, the said amount would carry interest @ of 9% p.a. payable from the date of the petition till the date of its actual payment. To the aforesaid extent, the award dated 25.03.2004 shall stands modified in C.P. no.136 of 1999.
It is further directed that any amount which may have been deposited before this Court shall be remitted to the Tribunal to be released in favour of the claimants and any shortfall shall also be made good before the tribunal within six weeks to be released in favour of the claimants in terms of award.
The appeal is partly allowed. Costs are made easy.
The record of the tribunal concerned shall be sent back.
Order Date :- 14.5.2024 Harshita