Heard Sri V.D. Misra, learned counsel for the appellant and Sri Rajendra Jaiswal, learned counsel for the respondent and perused the record.
Facts, in brief , of the present case are that one Sri Brijesh Kumar who was going to leave his friend Bache lal to his village on his motorcycle having registration No. U.P. 35-K/ 4697 on 16.11.2010 at about 5.45 p.m. When he reached near village Surseni Cluvert, a Vikram Loader having registration No. U.P. 35-H/2488 coming from opposite direction driven rashly and negligently dashed the vehicle of Brijesh kumar as a result of which he suffered grievous injuries, died on the spot and pillion rider Bache Lal also sustained grievous injuries.
In view of the said facts, a claim petition under Section 166 of the Motor Vehicle Act has been filed impleading the Vimlesh Kumar owner of the Vikram Loader No. U.P.35-H/ 2488 as well as Oriental Insurance Company Limited as defendant no. 2 , who filed written statement inter alia stating therein that the accident has not been caused by Vikram Loader no. U.P.35-H/ 2488 as its number has not been mentioned in the F.I.R. and theory of the claimants is false, manipulated , suspicious and collusive act with the insured and FIR is also designed for the purpose of claim. In the absence of insurance papers etc. it cannot be said as to whether the offending vehicle was insured with it or not at the time of accident. Hence the Insurance companion is not liable to pay any compensation.
The Tribunal by means of judgment and award dated 3.3.2012 allowed the claim petition , the relevant portion of the award is quoted as under:-
" The petition is allowed. The petitioner is entitled to recover a sum of Rs. 3,69,500/- ( Rs. Three lacs sixty nine thousand five hundred ) as compensation with interest @ 6% per annum from the date of filing of petition which opposite party no.2 the Oriental Insurance Company Limited is liable to pay to the claimants, if the amount of award is paid within 30 days of the date of judgment . If the amount of award is paid after 30 days of the judgment, the petitioners shall be entitled to interest @ 9% per annum on the whole amount."
Learned counsel for the appellant has challenged the impugned judgment and the arguments which have been raised by him are summarized as under:-
(1) The tribunal has wrongly held that there is no negligence on the part of the driver of the motorcycle Sri Brijesh Kumar and only the driver of the Vikram Loader is liable for the accident which took place on 16.11.2010 in which Brijesh Kumar has died rather from the facts on record that there is composite negligence on the part of the vehicles which involved in the accident in question. In this regard , he has placed reliance on the judgment of Hon'ble the Apex Court in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and others, 2006 T.A.C. 969 (SC) .
(2) Once the Tribunal has awarded 6% interest per annum from the date of filing of the petition then there is no justification to given a direction that If the amount of award is paid after 30 days of the judgment, the petitioners shall be entitled to interest @ 9% per annum on the whole amount. In support of his arguments, he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of National Insurance Company Limited Vs. Keshav Bahadur and others, (2004) 2 Supreme Court Cases, 370. Accordingly, he submits that impugned judgment and award passed by the tribunal liable to be set aside.
Learned counsel for the appellant submits that there is no illegality or infirmity in the impugned judgment and award as the tribunal on the basis of the material on record has rightly held that the accident took place due to rash and negligent driving of the driver of the Vikram Loader in which Sri Brijesh Kumar has died , hence the appeal lacks merits and is liable to be dismissed.
I have heard learned counsel for the parties and gone through the record.
Learned Tribunal in order to decide the controversy in the present case on the basis of material on record as well as the evidence , has framed five issues.
The Tribunal in order to decide the controversy that due to whose negligence an accident has taken place on 16.11.2010 has framed the following issues:-
"(1) whether on 16.11.2010 at about 5.45 p.m. at the culvert on Lucknow-Bangarmau Road, within the village Surseni , police- station Bangermau, District Unnao Vikiram Loader No. U.P.-35 H / 2488 cause an accident due to rash and negligent driving by its driver resulting into death of Brijesh Kumar?
(2)Whether accident in question was caused due to contributory negligence of deceased Brijsh Kumar? If so , its effect?
In order to prove the factum of the accident and the rash and negligent driving by the driver of the Vikram Loader, on behalf of the claimant, Smt. Deep Mala ( P.W.1) appeared as a witness, who stated that in an accident which took place on 16.11.2010 between 5.30 p.m. to 6.00 p.m. at Surseni , Lucknow-Bangarmau road, her husband Brijesh Kumar, who was riding on motorcycle has been dashed by the Vikram Loader, sustained gregarious injuries, died on the spot . In addition to said evidence, Sri Basant Patel ( P.W.2), who is an eye witness of the incident has also produced as witness , who stated in his evidence that accident took place due to rash and negligent driving by the driver of the Vikram Loader and there is no negligence on the part of Brijesh Kumar( deceased),who was driving motorcycle.
Further, Tribunal on the basis of the said evidences and other material on record , had decided issue nos. 1 and 2, holding that the accident took place due to rash and negligent driving by the driver of the Vikram Loader in which Sri Brijesh Kumar sustained grievous injuries and later on died and he is not negligent, keeping in view the said findings as well as the definition of 'Negligence' which means a breach of duty caused by the omission to do something which a reasonable man, guided to those considerations, which ordinarily regulate the conduct of human affairs , would do or doing something which a prudent and reasonable man would not do. Since no absolute rule can be laid down by which negligence or its absence can be judged in a given case, 'negligence' would necessarily vary in different cases and, for judging the same, all the attending and surrounding facts and circumstances of a particular case have to be taken into account.
Further, Hon'ble the Apex Court in the case of T.O. Anthony V. Karvarnan 2008 (3) SCC 748 has held as under:-
"Composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence. His claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence ( see also; Andhra Pradesh State Road Transport Corporation and others Vs. K. Hemlata and others (2008) 6 SCC 767 and Sudhir Kumar Rana Vs. Surendra Singh and others (2008) 12 SCC 436.) ".
Accordingly, the arguments advanced by learned counsel for the appellant that there is composite negligence on the part of driver of the Vikram Loader due to which accident took place, is not correct argument rather the same is contrary to the facts and material on record and in this regard findings given by the Tribunal that the accident took place due to sole negligent and rash driving by the driver of the Vikram Loader, is perfectly valid, need no interference and the appellant cannot derive any benefits in view of the law laid down by Hon'ble Apex Court in the case of Bijoy Kumar Dugar ( Supra) , which is not applicable in the facts and circumstances of the case.
So far as the arguments raised by learned counsel for the appellant that once the Tribunal has awarded compensation of Rs. 3,69,500/- with interest @ 6% per annum then there is no justification on the part of the Tribunal to give further direction that if the amount of award is paid after 30 days of the judgment, the claimants shall be entitled to interest @ 9% per annum is a direction which is contrary to law as laid down by Hon'ble the Apex Court in the case of National Insurance Company Limited( Supra), the relevant portion is quoted as under:-
"Though Section 110CC of the Act (corresponding to Section 171 of the New Act) confers a discretion on the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110CC of the Act or Section 171 of the new Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal."
Madras High Court in the case of Tamil Nadu State Transport Corporation Ltd. Vs. Sambandam, 2009 ACJ 203 has held as under:-
"The Claim Tribunal while granting compensation has directed the appellant-Transport Corporation to deposit the award amount within a period of two months from the date of receipt of a copy of this order. In default, imposed a condition that the award shall carry an interest at the rate of 15% per annum. In a decision in Shanmughasundaram & another v. Jothi & others [ 2005 (1) L.W. 566], this Court has held that while passing award, there is no statutory backing for a default clause and accordingly deleted the same. Therefore, 'Clause 3' of the decree relating to the default interest is liable to be set aside."
Thus, keeping in view the above said facts, the judgment and award dated dated 03.03.2012 passed by the Motor Accident Claims Tribunal, directing that if the Oriental Insurance Company does not pay the amount of compensation ( Rs. 3,69,500) with interest of 6% per annum from the date of filing of the petition within thirty days from today, the claimant shall be entitled to get 9% per annum of the whole amount is contrary to law liable to be set aside .
For the foregoing reasons, the appeal is party allowed and the judgment and award dated 03.03.2012 passed in M.A.C.P. No. 47 of 2011 ( Smt. Deep Mala and others Vs. Vimlesh Kumar and another) by Motor Accident Claims Tribunal, Unnao is modified to the extent that claimants are entitled to get compensation of Rs. 3,69,500/- ( Rs. three lacs sixty nine thousand five hundred )with 6% interest per annum from the date of filing of claim petition from Oriental Insurance Company Limited within thirty days from the date a certified copy of this order is produced before it.
Order Date :- 3.12.2014 dk/