Court No. - 2
Case :- FIRST APPEAL FROM ORDER No. - 1545 of 2003 Appellant :- Oriental Insurance Co. Ltd. Respondent :- Abdul Rahman & Others Counsel for Appellant :- V.C. Dixit Counsel for Respondent :- Nigmendra Shukla
Hon'ble Dr. Kaushal Jayendra Thaker,J.
The insurance company has felt aggrieved at the judgement and award passed by the Motor Accident Claim Tribunal granting a sum of Rs.3,74,300/- with 7% rate of interest to the claimant who claimed to be suffering from accidental injuries and who had claimed Rs.19,20,000/-. The M.A.C.P. was numbered as 915/98 and the award as dated 2.4.2003. Dates are necessary as base is raised by the claimant that the Tribunal has failed to consider the factum of he being discharge from services.
The insurance company has neither disputed the accident nor the findings of question of negligence. The insurance company has submitted that despite several opportunities being given to the owner no driving licence was produced except the bare words of the owner who had filed his reply. This is a finding of fact which has been assailed by the appellant. The primary duty of production of a document is with a person who is in possession of the same once the said functions are discharged the owners on the party which states to the otherwise arises. In this case the owner has not discharged his duty, however, that cannot be a factor against the claimant. Even before this court despite the fact that 15 years have elapsed the owner has not cared to appear before this court. In view of the latest decision of the Apex Court reported in Pappu and others Vs. Vinod Kumar Lamba and another, AIR 2018 SC 592, supports may stand and as there was no driving licence filed. No evidence was filed to show that the vehicle was driven by an authorized person having valid driving licence to drive the said vehicle.
The next ground of challenge is the quantum. It is true that he had only 36% of disability, however, this 36% of disability to a driver has rendered him totally unworthy to drive a vehicle and he was in permanent service. The Tribunal has calculated the same basing its reasons on well settled legal principles enunciated by the Apex Court. I cannot accept the statement of Shri V.C. Dixit that The Tribunal has not considered the judgement of Raj Kr. v. Ajay Kr. & Ors. (2011) 1 SCC 343.
The Tribunal on the contrary in submission of Sri Nigmendra Shukla has been ever conservative in granting only Rs.5,000/- under the head of pain, shock, suffering and the rate of interest is also 7%. He relies on the judgement in First From Order No.2389 of 2016 (National Insurance Company Ltd. Vs. Smt. Vidyawati Devi) and others decided on 27.7.2016 and his request is that under the head of pain, shock and suffering some more amount be granted and in view of judgement of Apex Court, interest be awarded at 9%.
The Tribunal has not assigned any reason why it has not awarded any interest though it is mandated in the law. The interest should have been granted by the Tribunal. I am in agreement with the submission made by Sri Nigmendra Shukla that an additional amount of Rs.25,000/- would make the entire amount as 4 Lakhs and the rate of interest as per Division Bench of Lucknow Bench of this Court in F.A.F.O. No. 1011 of 2012 (Ramesh Kumar Soni Vs. Sri Ram General Insurance Company Ltd. and others) decided on 3.3.2017 in which 9% interest has been awarded. Thus, interest of 9% is ordered to be granted from the date of filing of the claim petition till the disposal of the petition and thereafter at the rate of 6% in the peculiar facts and circumstances of the case.
Record be sent back to the trial court for disbursement of the remaining amount.
Interim relief shall stand vacated. The man having lost his job, the amount now deposited be not kept in fixed deposit and be disbursed to him.
Order Date :- 29.5.2018 shiv