1. Heard learned counsel for the parties and perused the judgment and order impugned.
2. This appeal, at the behest of United India Insurance Company Limited, challenges the judgment and order dated 9.2.1999 passed by Motor Accident Claims Tribunal/IV Additional District and Sessions Judge, Jhansi (hereinafter referred to as 'Tribunal') awarding a sum of Rs.1,22,400/- with interest at the rate of 10% as compensation to the claimants in Claim Petition No. 133 of 1990.
3. Facts are not narrated as they are not in dispute.
4. The Insurance Company has raised several grounds for challenging the award granting sum of Rs.1,22,400/- with interest at the rate of 10%. It is submitted and which is clear from the facts that the claim petition was filed in the year 1990 but the insurance company was not immediately made party and, therefore, they should not have been saddled with the liability to pay interest prior to the period of their impleadment is the submission of the counsel for insurance company.
5. It is further submitted that the Tribunal had failed to consider that the claimants were not the dependents of the deceased and, therefore, were not entitled to any compensation. It is submitted that the compensation was on the higher side based on surmises and conjectures.
6. Before adverting to the issue of grant of interest, the other two issues require to be decided and which are being decided and it is also pertinent here to reproduce the relevant provisions of the Act, 1988 namely sections 166, 169, 170 & 171 of the Act, 1988 which are as under:
166. Application for compensation.--
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
[***] 3 (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.
169. Procedure and powers of Claims Tribunals.--
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.
170. Impleading insurer in certain cases.--Where in the course of any inquiry, the Claims Tribunal is satisfied that--
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
171. Award of interest where any claim is allowed.--Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.
7. The deceased was the wife of Raj Ram and mother of Pratipal who was four years of age when she passed away. The accident occurred after the new Act i.e. Motor Vehicles Act, 1988 (hereinafter referred to as 'Act, 1988') came into force and, therefore, as per the provisions of Section 166 of the Act, 1988, it is not necessary that the claimant should be dependent but should be legal representative. The said issue is no longer res integra as per the decisions in Smt. Manjuri Bera Vs. Oriental Insurance Company, Limited, AIR 2007 SC 1474 followed by this Court in FIRST APPEAL FROM ORDER No. - 199 of 2017, National Insurance Company Limited, Lucknow Vs. Lavkush and another decided on 21.3.2017. The husband though had remarried within eight months, has been considered to be legal representative.
8. The provisions of Section 166 of the Act, 1988 will not permit this Court to accept the submission made by the learned counsel for the Insurance Company. Meaning of 'legal representative' given under Section 2 (1) (I) of the Code of Civil Procedure as used in Section 166 of the Act, 1988 refers to 'legal representative' and not the 'dependent'. This Court in 2017 ACJ 4 (All) has held husband to be legal representative and he has been ordered to be compensated and, therefore, the submission of the learned counsel for the appellant that the claimants are not the dependents cannot be accepted .
9. The Apex Court in G.S.R.T.C. Vs. Ramanbhai Prabhatbhai, 1987 ACJ 561 SC has held that even under the old Act, married sons and daughters can be considered to be legal representative and are entitled for compensation. I am even fortified in my view by the recent decision of the Apex Court in National Insurance Company Vs. Vinish Jain, 2018 ACJ 1004 (SC).
10. As far as quantum is concerned, the Tribunal has considered the income of the deceased to be notional at Rs.900/-. Multiplier of 17 has been granted after deduction of 1/3rd and no amount under the head of future prospects or any other heads has been granted. Therefore, the submission that interest at the rate of 10% is bad and the amount awarded are exorbitant, cannot be accepted. If we consider the quantum as per the decision in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121, it would be on the lower side and, therefore also, the quantum of compensation cannot be said to be bad.
11. This takes this Court to the issue that interest should not have been awarded prior to the insurance company having been joined as party.
12. It is principle of law that under the Motor Vehicles Act, the insurance company has to satisfy the award. As per the decision of the Apex Court, it is not necessary for owner nor is it mandatory to join insurance company as party. The duty caused on insurer to satisfy the awards which is embodied in Section 149 and once the liability of the insured is there, it is the duty of the insurance company to indemnify the insured. I am supported in my view by the decision in Oriental Insurance Company Limited Vs. Sunita Rathi, AIR 1998 SC.
13. On bare reading of Section 171 of the Act, 1988, it is clear that interest is payable, however, it does not deal with the impleadment or otherwise. The insurance company has is to indemnify the owner and has to satisfy the awards.
14. Order 1 Rule 10 of the Code of Civil Procedure, 1908 provides that a person who is made a party to the lis is deemed to have been party from the date when the lis is accrued and, therefore, to contend that the insurance company should be saddled with the liability only from the date of its impleadment as party, cannot be accepted. I am also supported in my view by the decision of the High Court of Gujarat in Oriental Insurance Company Limited Vs. Aminaben Rahimbhai Kadiwala, 2003 ACJ 175.
15. The interest make some good for the loss which the person suffers not because of the pendency of the matter but because the amounts are with the insurance company and had the amount been paid without litigation, they would be benefited. As observed hereinabove, it cannot be held that the interest could not have been awarded and, hence, the said submission fails and is rejected.
16. No other grounds which have been urged in the appeal are pressed into service by the learned counsel for the appellant.
17. This appeal fails and is dismissed. The judgment and decree passed by the Tribunal are affirmed. Record and proceedings be sent back to the Tribunal forthwith. The amount kept in fixed deposit may be permitted to be encashed as sufficient period has elapsed from the date of the award.
Order Date :- 31.1.2019 DKS