Karnataka High Court
Ramakrishna Reddy vs The Manager, Purchase, Hindustan ... on 25 September, 2001
Equivalent citations: II(2002)ACC676, 2003ACJ105, ILR2002KAR1905, 2002(1)KARLJ500, 2002 AIR KANT HCR 141, 2002 A I H C 226, (2002) 2 ACC 676, (2002) 3 CIVLJ 223, (2003) 2 TAC 453, (2003) 1 ACJ 105, 2002 AIR - KANT. H. C. R. 141, 2002 AIHC 226
Author: R.V. Raveendran
Bench: R.V. Raveendran, N.K. Patil
JUDGMENT R.V. Raveendran, J.
1. These two appeals arise from the judgment and award dated 6-3-1999 in M.V.C. No. 141 of 1994 on the file of M.A.C.T.-V, Bangalore Rural District.
2. M.F.A. No. 3122 of 1999 is by the claimant and M.F.A. No. 3893 of 19.99 is by the insurer.
3. In the claim petition, the claimant alleged that he is an employee of M/s. Hindustan Machine Tools Limited ("H.M.T." for short); that"on 6-7-1993 he had gone to Bangalore along with his colleagues to purchase some materials for his employer, in the employer's van bearing No. GAS 587. When returning to Tumkur, the driver of the van drove the van in a rash and negligent manner and while attempting to overtake another vehicle, he saw another vehicle coining from the opposite direction and suddenly applied the break. As a result, the door of the van suddenly opened and the claimant who was sitting by the side of the door fell on the road and the van ran over his legs, resulting in grievous injuries to the claimant. He therefore filed the said petition claiming a compensation of Rs. 5,50,000/-. The driver, owner and insurer of the van were impleaded as respondents 1 to 3.
4. The driver and owner did not contest the proceedings. The insurer alone contested the proceedings by filing statement of objections. As the owner and driver had failed to contest the proceedings, the insurer also sought permission under Section 170 of the Motor Vehicles Act, 1988 to contest the claim on merits also. On the pleadings the Tribunal framed the following issues:
1. Whether the petitioner proves that the driver of the van bearing Reg. No. GAS 587 was rash and negligent in driving the vehicle on 6-7-1993 near Bommanahalli Forest and caused grievous injuries to the petitioner as alleged in the petition?
2. Whether the 3rd respondent proves that the driver of the van bearing Reg. No. GAS 587 had no valid and effective driving licence at the time of accident and that there is breach of policy conditions as alleged in the objection statement?
3. Whether the 3rd respondent proves that the petitioner contributed and caused the accident as alleged in the objection statement?
4. Whether the petitioner is entitled for compensation? If so, for what amount and from whom?
5. What order or award?
5. The claimant examined himself as P.W. 1 and the Doctor who treated him (Dr. K.T. Thomas) as F.W. 2 and got marked Exs. P. 1 to P. 40. On behalf of the respondents no one was examined. However, the insurer produced the copy of the insurance policy schedule and it was marked by consent as Ex. R. 1.
6. After appreciating the evidence, the Tribunal allowed the claim petition in part by judgment and award dated 6-3-1999 holding that the accident occurred due to the rash and negligent driving of the said van by its driver. The Tribunal also held that the insurer has failed to prove that the driver did not possess valid licence and also failed to establish that the claimant was guilty of contributory negligence. The Tribunal held that the claimant is entitled to compensation of Rs. 2,06,640/- with interest at 10% per annum from the date of petition till the date of realisation. The compensation awarded comprises of compensation for pain and suffering Rs. 40,000/-; loss of earning during the period of treatment Rs. 94,640/-; medical expenses Rs. 15,000/-; loss of amenities Rs. 10,000/-; incidental expenses relating to nutritious food, conveyance etc., Rs. 5,000/- and loss of earning capacity due to disability Rs. 42,000/-.
7. Feeling aggrieved, the claimant has filed M.F.A. No. 3122 of 1999 contending that the compensation awarded is inadequate and praying that the compensation as claimed be awarded
8. The insurer had filed M.F.A. No. 3893 of 1999 contending that the claimant does not fall under the definition of workman and therefore insurer is not liable under the terms of the policy (Ex. R. 1). Insurer further contended that the insurance policy did not cover the risk in regard to employees carried during the course of employment and therefore the liability could not have been fastened on the insurer. Alternatively, insurer contended that the compensation awarded under the head of loss of earning during the period of treatment and loss of earning capacity due to disability were excessive. On the contentions, following points arise for consideration:
(a) Whether the Tribunal erred in holding that the insurer was liable to pay the compensation amount to the claimant?
(b) Whether the compensation amount awarded is inadequate as contended by the claimant or excessive as contended by the insurer?
Re. Point (a):
9. The insurer now contends that the policy covers only workmen and non-fare paying passengers who are not employees of the insured; that the claimant was not "a non-fare paying passenger who is not an employee of the insured", nor he is a workman; and therefore the policy does not cover the risk arising from injury to the claimant.
10. Learned Counsel for the claimant raised a preliminary objection to the said plea, on the ground that such a plea was neither pleaded nor established before the Tribunal; and that it was also not the subject-matter of any issue.
11. In the claim petition, the claimant specifically stated in Col. No. 4 that he is a foreman working in H.M.T. Watch Factory and in Col. No. 22 he specifically stated that he is an employee of H.M.T. Watch Factory. He also stated that the vehicle in question belonged to H.M.T. and was insured with the United India Insurance Company Limited (3rd respondent before the Tribunal).
12. The driver and insured remained ex parte. The insurer filed statement of objections. But, the insurer did not raise the contention now sought to be raised. The insurer did not contend that the policy did not cover the liability in regard to injury sustained by the claimant, on the ground that he was not a 'non-fare paying passenger who is not an employee of the insured'. As there was no pleading, no issue was also framed in regard to the liability of the insurer on the said ground. The insurer however contended in the objection statement, that the driver did not have a valid, effective licence and therefore there was a breach of the policy conditions and consequently the insurer was not liable. The Tribunal framed an appropriate issue in regard to the said contention as per Issue No. 2 as held that issue against the insurer.
13. No evidence was let in by any party in regard to the contention now sought to be raised. In other words, both the claimant and insurer proceeded before the Tribunal on the basis that the vehicle in question was covered by the insurance policy issued by the 3rd respondent and the 3rd respondent was liable under the policy in regard to the injury sustained by the claimant. Therefore, the Tribunal has made the insurer liable to pay the compensation amount to the claimant.
14. For the first time, in its memorandum of appeal, the insurer contended that the insurance policy did not cover the risk to employees of the insured (who are not workmen) carried during the course of employment. The insurer now wants to contend that the policy shows that the legal liability for four non-fare paying passengers has been accepted as per IMT No. 14; and that IMT No. 14 provides that the liability undertaken in respect of non-fare paying passengers, does not extend to persons employed by the insured. The insurer relies on the decisions of the Supreme Court in National Insurance Company Limited, NEW Delhi v. Jugal Kishore and Ors., Pushpabai Parshoitam Udeshi and Ors. v. Ranjit Ginning and Pressing Company Private, Limited and Anr. and National Insurance Company Limited v. Nathilal and Ors., to contend that it is not liable.
15. But, the insurer did not produce the entire policy. Only the policy schedule was marked (by consent) as Ex. R.I. Endorsement IMT No. 14 was not produced. No reference was made to IMT No. 14 and its purport, in the statement of objections. The insurer did not examine any witness. It did not request the Tribunal to frame an issue in regard to absence of liability. In the absence of pleadings, issues and evidence, the insurer cannot be permitted to raise such a contention for the first time in the appeal.
16. Learned Counsel for the insurer submitted that the following averments in the statement of objections (para 9) should be considered as adequate pleading in this behalf:
"Without prejudice to the stand taken above, it is submitted that the liability of this respondent, if any, is subject to the terms, conditions and limitations of the policy of insurance validly subsisting as on the date of the alleged accident and relevant provisions and exceptions of the Motor Vehicles Act. Provided petitioner came under definition of "workmen" and such risk is specifically covered under policy".
A careful reading of the said plea shows that it cannot be considered as a plea denying liability under the insurance policy, in regard to injuries sustained by claimant. The claimant had disclosed all relevant facts in the claim petition. The claimant did not have knowledge about the terms and conditions of the policy. Therefore, if the insurer wanted to deny the liability, it ought to have specifically pleaded that the terms of the insurance policy did not cover any risk relating to the injury sustained by the claimant as he was an employee of the company. The vague and general statement that any liability is in terms, conditions and limitations of the insurance policy cannot be considered as a plea of denial at all, as obviously when the insured enters into a contract of Insurance with the insurer it follows that the liability of the insurer will be in accordance with the terms of the policy and the relevant statutory provisions. The plea now sought to be raised, relates to several questions of facts.
Firstly, the insurer wants to contend that the claimant is an employee of the insured, but not a workman. If this had been pleaded before the Tribunal, in all probability, the claimant might have placed material to show that he was not discharging any managerial or supervisory functions and he was a workman. That opportunity having been denied to the claimant, the insurer cannot be permitted to raise it belatedly after 5 years.
Secondly, the insurer now wants to contend that the insurance policy does not cover the risk to employees of the insured carried in the course of employment, though such employee is also a non-fare paying passenger. If such a contention had been raised before the Tribunal, it is possible that the claimant might have summoned the records either from the employer or from the insurance company, in particular the proposal form, entire insurance policy and other papers to show that a sum of Rs. 200/- paid as extra premium to cover 4 non-fare paying passengers, in fact applied to him also. It should be remembered that the vehicle in question was owned by a Government company and it is stated that it was not a public service vehicle, but was a private goods carrier.
Thirdly, the insurer now wants to contend that the vehicle was a commercial vehicle. In fact JMT No. 14 applies only to commercial vehicles only. It is possible that the claimant would have demonstrated that the vehicle involved was not a commercial vehicle.
We have referred to this aspect only to show that the matter involves several disputed questions of fact. We are not concerned with the ten-ability of the contentions, that might have been raised by the claimant, but the denial of the valuable rights that have accrued to the claimant on account of the insurer not denying liability on the basis of present contention. We may demonstrate the prejudice that will be caused by permitting such a contention to be now raised, by an illustration. We may imagine the situation where a private owner/insured who is solvent during the pendency of the claim petition, becomes insolvent by the time of appeal. If such contention regarding non-liability had been raised before the Tribunal, the claimant might have given up the insurer and immediately proceeded against the owner and recovered the compensation. By failing to do so, the insurer jeopardises the chances of recovery of compensation from the owner of the vehicle.
17. It would therefore be unfair to permit the insurer to raise such a contention for the first time before the Appellate Court in first appeal, that too without seeking amendment of its objections statement. It should be remembered that the petition was pending from the year 1993.
18. The Supreme Court has held in several decisions that, if a defence which ought to have been raised is not raised before the Trial Court, a valid right accrues to the claimant/plaintiff and the defendant/respondent is deemed to have waived any such defence and will not be permitted to raise such a contention in the first appeal.
18.1 In Siddu Venkappa Devadiga v. Rangu S. Devadiga and Ors., the Supreme Court held that the decision of a case cannot be based on grounds outside the plea of the parties and that it is the case pleaded which has to be found; and the High Court cannot in an appeal permit the appellant to make out a new case, which was not pleaded and which was not the subject-matter of the trial.
18.2 In Bhagat Singh and Ors. v. Jaswant Singh and Abubakar Abdul Inamdar (dead) by L.Rs and Ors. v. Hanoi Abdul Inamdar and Ors., the Supreme Court held that where the claim is not made in the defence presented, no amount of evidence can he looked into upon a plea which was never put forward.
18.3 In Union of India v. Surjit Singh Atwal, the Supreme Court held that where the defendant had not raised the plea of illegality of the agreement in the written statement and as no issue was framed in regard to it, the defendant should not be permitted to raise such a plea several years after the suit, as it would prejudice the plaintiff.
18.4 In Heeralal v. Kalyan Mal and Ors., the Supreme Court was considering a case where the defendant had initially submitted in a partition suit that certain properties were joint family properties, but subsequently sought amendment of written statement to withdraw the said admission. The Supreme Court held that such amendment was not permissible.
18.5 We may lastly refer to Chimajirao Kanhojirao Shirke v. Oriental Fire and General Insurance Company Limited, in this context. In that case, the question for consideration was whether the words "unlimited personal injury and property damage" upto Rs. 10,00,000/- in the policy of Insurance for which an additional premium of Rs. 134/- was paid, covered the death and bodily injury of the insured or not. A claim was made towards the death of the insured by his legal representatives on the ground that the language used in the policy covered the insured also. The insurer put forth the defence that the words ''unlimited personal injury'' were wrongly mentioned in the policy and were redundant. It did not put forth the contention that the policy did no cover the insured. No evidence was let in by insurer. The Tribunal made the insurer liable. In appeal it was contended that words "unlimited personal injury" referred to third parties only and not to the insurer. The High Court accepted the contention that extra premium was not for covering personal injury or death of the insured. The Supreme Court reversed the decision of the High Court. The following observations of the Supreme Court are relevant:
"7. In the written statement filed by the insurance company, relevant portion of which we have already quoted above, the stand taken therein is that it is due to oversight/mistake that the wording 'unlimited personal injury' is typed against the additional premium of Rs. 134.
8. This stand is contrary to the submissions made by the learned Counsel for the respondent. It has not been the case of the insurance company that notwithstanding the words used therein, namely, 'unlimited personal injury' it would in terms of the policy, be limited to the liability of a third party. On the contrary, faced with the submission that such words would make the insurer liable even to the insured personally, the said plea and submission was made in the Trial Court. Once the submission and the stand is that the writing is on account of oversight and mistake, the aforesaid submission made before us cannot be sustained.
9. In view of the aforesaid conclusion, we have no hesitation to hold that the High Court committed an error in setting aside the finding given by Trial Court, specially in view of the said specific plea taken in the written statement. The High Court felt that since it is a legal matter, it could be adjudicated notwithstanding a different stand in its pleading. This approach was not proper. Once a stand in fact is taken, that fact cannot be controverted by any legal proposition. In the present case, the insurance company has not led any evidence to dissolve the stand taken in the written statement that it was done by mistake nor was there any application to amend such pleading. In view of this, the High Court was not correct to decide the issue through legal inferences de hors of and without adverting to the glaring facts on the record.
Accordingly, we set aside the judgment of the High Court and confirm that of the Trial Court. The present appeal is accordingly allowed, cost on the parties".
18.6 It is clear therefore that the insurer cannot urge for the first time in appeal, that it is not liable to cover the risk relating to the injury sustained by the claimant under the policy.
19. We may also at this stage refer to the pernicious habit of some branches of insurance companies in filing stereotyped written statements denying all and everything. They routinely deny the Insurance, then alternatively plead that even if there was an Insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not bother to verify whether the insurance policy covered the risk or not and whether driver had a licence or not. We recognise that insurers are sometimes handicapped for want of full information, while giving instructions to their Counsel, and therefore the objections may be general in nature. We are also conscious that we cannot frown upon a party taking all permissible defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, where technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of Insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the object and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concern to safeguard its financial interest, with their obligations as instruments of social justice under the Motor Vehicles Act.
19.1 The claimants are not litigants by choice, but are constrained to approach the Tribunal, because of the death of the breadwinner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend upon the police for these particulars. The insurer should therefore verify whether there was any Insurance policy or not, whether the insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy. If the insurer were to file 'play it safe' written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and unjustly kept away from the direly needed compensation. It is time that insurers get rid of "Deny Everything and Await the Award Syndrome" and become responsible and responsive opponents in motor accident claims. We make it clear that the above observations are intended only for those officers of Insurance companies who refuse to recognise their statutory obligations to third parties, under the insurance policies issued to the insured.
19.2 There is an urgent need for an attitudinal change on the part of insurers in dealing with claims of third parties. There is a sea change in the manner in which motor accident claims arc handled and settled or decided. We may refer to some of the statutory changes and the enunciations by the Apex Court which have defined and altered the manner of deciding the motor accident claims:
(a) Introduction of Sections 147, 149, 168 and 170 in the Act defining the scope of contest by the insurer.
(b) Introduction of Section 163-A and Schedule II to the Act on structured formula basis.
(c) The decision in New India, Assurance Company, Shimla v. Kamla and Ors., holding that when a valid insurance policy has been issued in respect of a vehicle, there is a statutory liability on the insurer to pay to third parties, even if there has been any breach/violation of the policy conditions and then recover the same from the insured, if the insurer had no such liability, under the policy conditions.
(d) The decision in Kaushnuma Begum and Ors. v. New India Assurance Company Limited and Ors., adopting the principle of strict liability for damages from Rylands v. Fletcher, even if the driver was not negligent (subject to seven defences enumerated).
20. Coming back to the case on hand, on the pleadings, issues and evidence, we hold that the Tribunal was justified in making the insurer liable for the compensation amount. If the insurer wanted to avoid liability, it ought to have raised a specific plea and ensured that an appropriate issue was framed so that the attention of the claimant and insured was focussed on the ground on which the insurer sought to avoid liability, so that they could let in evidence to show that the insurer is liable. We therefore answer the first point in the negative and against the insurer.
Re. Point (b):
21. The evidence of P.W. 2 (Doctor) who treated the claimant at St. John's Medical College Hospital, shows that the claimant had suffered open fracture of both bones of right leg and a closed fracture of the left tibia; that the claimant was operated on the same day (7-7-1993) in regard to the right leg; that external fixation was done in regard to left tibia by applying plaster; that the claimant was again operated on 26-7-1993 for skin grafting on the right leg by the plastic surgeon; that on 30-8-1993, adjustment of fixation was done and skin grafting was again done on the right leg; and that the claimant was an in-patient for more than two months between 7-7-1993 to 13-9-1993. The claimant was readmitted on 14-10-1993 for removal of fixation on right leg and for application of plaster of paris. He was again in the hospital for 8 days and was discharged on 22-10-1993.
22. The claimant was again readmitted to the said hospital on 24-2-1994 for Illizrov ring fixation on the right leg and discharged on 5-3-1994; and he was once again admitted on 16-4-1994 for lengthening of right leg and discharged on 20-5-1994. Apart from being an in-patient on four occasions as aforesaid, the claimant had visited the hospital as out-patient 32 times. He was again examined by the Doctor on 10-6-1998 (a month before the Doctor gave evidence). The Doctor stated that on such examination, he found that the claimant was limping on the right side; that his right leg was shortened by 1 inch and movements of the right limb was restricted by 30 degrees and knee joint by 10 degrees; that there was swelling in the right leg, that sensation was reduced and movement in the left knee and ankle joint were restricted by 10 degrees. He opined that disability for right lower limb was 40% and left leg was 20%. The Hospital records and X-rays were also produced and marked as Exs. P. 41 to P. 46.
23. The claimant has also given evidence about the injuries and the period of treatment. He also stated that he could not attend to work between 7-7-1993 to 11-9-1994 and remained on leave. The evidence also discloses that the claimant suffers from disabilities and disadvantages flowing from such fractures, i.e., inability to walk long distance, inability to run, inability to squat, difficulties in climbing stairs etc. On the basis of the said evidence, the Tribunal has awarded compensation under several heads (referred to in para 6 above).
24. We will now consider whether the amounts awarded under these heads are proper and whether they require to be increased as contended by the claimant or to be reduced as contended by the insurer.
a. Injury, pain and suffering:
25. As noticed above, the claimant suffered two fractures i.e., open fracture of both bones of right leg and closed fracture of left tibia. He was hospitalised on four occasions between 7-7-1993 to 13-9-1993, 14-10-1993 to 22-10-1993, 24-2-1994 to 5-3-1994 and 16-4-1994 to 20-5-1994. He underwent four surgeries i.e., 6-7-1993, 26-7-1993, 30-8-1993 and for fixation of Ulizrov ring in February 1994. Having regard to the number of fractures, number of surgeries and period of treatment, it is appropriate to award a sum of Rs. 50,000/- under the head of injury, pain and suffering instead of Rs. 40,000/- awarded by the Tribunal.
b. Medical and incidental expenses:
26. The Tribunal has awarded a sum of Rs. 15,000/- under the head of medical expenses and Rs. 5,000/- under the head of nutritious food, conveyance and incidental expenses, in all Rs. 20,000/-. The evidence shows that the claimant was treated at St. John's Medical Hospital and the employer has reimbursed most of the medical expenses. But as rightly observed by the Tribunal, the employer has not allowed all the bills and the Tribunal has assessed the amount not allowed as Rs. 15,000/- and has granted the same. We do not propose to disturb the same. The Tribunal has awarded a sum of Rs. 5,000/- under the head of nutritious food, conveyance and incidental expenses. We find that it is on the lower side. As noticed above, the claimant was under treatment for nearly one year. He was in the hospital for 69 days, 9 days, 10 days and 35 days. The nature of injuries obviously made it necessary for the claimant to have the assistance of an attender. Having regard to the expenses involved, we award Rs. 20,000/- for the charges of the attendant, transportation and nutritious food. Thus, the award under the head of medical and incidental expenses will be Rs. 35,000/- (instead of Rs. 20,000/- awarded by the Tribunal).
c. Loss of income during the period of treatment:
27. The claimant has given clear evidence about the period of absence from work and his salary. Ex. P. 38 shows that his salary was Rs. 4,773/-. Ex. P. 39 shows that he was absent between 6-7-1993 and 11-9-1994 and salary lost during the said period is Rs. 94,639.28. In the circumstances, the Tribunal was justified in awarding a sum of Rs. 94,640/- as loss of earnings during the period of treatment. We do not propose to interfere with the same, but round it off to Rs. 95,000/-.
d. Loss of future earning capacity:
28. The Doctor has stated that the claimant has suffered a permanent disability of 40% in regard to right lower limb and 20% in regard to left leg. The claimant has stated that his future prospects by way of promotion are affected on account of his disability; and that his prospects of earning after retirement were also affected by the disability. The Tribunal took the income of the claimant as Rs. 5,000/- per month and Rs. 60,000/- per annum. It deducted 50% towards personal and living expenses and arrived at income as Rs. 30,000/- per annum. By applying a multiplier of 14, it held that loss would be Rs. 4,20,000/- if there was total loss of earning capacity. It assessed the permanent disability as 10% and awarded Rs. 42,000/- as loss of future earning capacity.
29. The insurer contends that the claimant has not been removed from service, but is continued in service; and that in the absence of any evidence about the loss of future earning capacity and loss of future promotions and as the claimant is continued in employment in a public sector company, the Tribunal was not justified in awarding Rs. 42,000/-under the head of loss of future earning capacity. We find that there is considerable force in the said contention and we accordingly set aside the award under this head. Consequently, any award for the permanent' disability should be under the head of loss of amenities.
e. Loss of amenities:
30. The Tribunal has awarded a sum of Rs. 10,000/- under the head of loss of amenities and pleasures in life. As already noticed, the claimant suffered serious injuries and operations to correct shortening and fixation of Illizrov ring. Even then, the Doctor found that the right leg was shorter by one inch after 4 years and the claimant has a limp; the Tribunal has found and the Doctor has stated that there is restriction of movement of right leg by 30 degrees and right ankle joint by 10 degrees and left knee and ankle joint by 10 degrees. He has opined that disability as 40% in regard to right lower limb and 20% in regard to left leg. He has also stated that the shortening of 1 inch in the right leg cannot be corrected but has to be compensated by wearing high heeled shoe throughout the rest of his life. He has also stated the reduction/restriction in movement of knee and ankle joint cannot be improved even by physiotherapy. Thus it is clear that the claimant has some partial permanent disability on account of the injuries. Having regard to the nature of injuries and disadvantage, we feel that a sum of Rs. 60,000/- should be awarded under the head of loss of amenities.
31. Thus the total amount to which the claimant will be entitled to is Rs. 2,40,000/-.
32. The Tribunal has awarded interest at 10% instead of awarding 9% interest awarded in such cases. The learned Counsel for insurer has stated that the rate of interest should be reduced. We feel that this is a case where the interest should be increased to 12% per annum. The driver and owner/insured did not contest the claim proceedings. The insurer which now contends that it was not liable under the policy, did not contend so before the Tribunal by producing necessary documents. If it had done so, the claim petition filed on 22-12-1993 would have ended in 1994-95 itself. But, the insurer did not appear and was placed ex parts on 10-2-1994. The insurer filed an application on 14-3-1995 to set aside the order placing it ex parte. That was allowed. It filed an application under Section 170 on 6-6-1998 and contested the petition on merits even though according to it, it was not liable under the policy. Again, it has filed an appeal denying liability on a new ground which was not urged and obtained a stay. The claimant has been kept out of the benefit of compensation for nearly 8 years for no fault of his, on account of the action of the insurer. We therefore feel that the insurer should pay interest at 12% per annum for unnecessarily delaying the matter.
33. In view of the above, the appeals are disposed off as follows:
(i) M.F.A. No. 3893 of 1999 filed by the insurer is dismissed with costs. (ii) M.F.A. No. 3211 of 1999 is allowed in part and the compensation awarded is increased from Rs. 2,06,640/- to Rs. 2,40,000/- with interest at 12% from the date of petition till the date of realisation. Out of the amount awarded, 50% shall be kept in a long term fixed deposit for a period of five years in a nationalised Bank with liberty to draw the interest thereon. (iii) Parties to bear their respective costs in M.F.A. No. 3122 of 1999.
(iv) The amount if any deposited in M.F.A. No. 3893 of 1999 may be transferred to the Tribunal.