New India Assurance Co. Ltd. vs Addil and Asif Khan

S.N. Satyanarayana, J.—This is Insurance Company''s appeal challenging the liability, as well as rate of interest payable on the compensation amount.

The facts leading to this appeal is that the claimant Adil is the driver of autorickshaw bearing No. KA-06/4523, belonging to Asif, respondent No. 1 in the Court below and insured with respondent No. 2, who is appellant herein. It is his case that on 14.11.2003 at about 7.00 p.m., he was driving the said autorickshaw with the owner being the occupant of the autorickshaw at the relevant point of time and the said autorickshaw was proceeding on Gubbi Road. At that time, a Tata Sumo came from opposite direction in a rash and negligent manner and dashed against the autorickshaw driven by the claimant near M.H. Patna on Gubbi Road. As a result, claimant suffered injuries, such as fracture of left ribs of his chest. Thereafter he was shifted to Siddarth Medical College. The claimant filed Claim Petition seeking compensation against the owner and insurer. The said petition was allowed awarding compensation in a sum of Rs. 46,500/- with interest at the rate of 12% from thirtieth day of the accident till realisation, which is being challenged by the Insurance Company on the ground that there is violation in terms of use of autorickshaw and there was violation of the permit condition in using the said autorickshaw and as such the Insurance Company is not liable to pay any compensation and even otherwise the rate of interest that was awarded at 12% from thirtieth day of the accident till realisation, is on higher side and on contrary to the rulings of the Apex Court.

In this appeal, after the respondents are duly served, the entire Trial Court''s records were summoned. On perusal of the same, this Court proceeded to frame the following points that arise for consideration in this appeal:

Whether the appellant establish that there is violation of permit condition by the claimant and respondent No. 1 in using the autorickshaw at the relevant point of time?

Whether the rate of interest awarded by the Court below is contrary to ruling of Apex Court?

This Court answers Point No. 1 in the negative and Point No. 2 in the affirmative, for the following:

REASONS

Admittedly the vehicle which was driven by the claimant at the relevant point of time is a transport vehicle, i.e., autorickshaw used for plying the passenger from one place to another. It is also an undisputed fact that at the relevant point of time, the autorickshaw was not being used for plying passengers and it is being used by the owner for his personal use and it was proceeding on Gubbi Road. It is also not in dispute that the FIR and other documents dc not disclose that the said autorickshaw was plying beyond the Tumkur City limits. Therefore the contention of the Insurance Company that there is violation of permit condition to the effect that the said vehicle should not be used for plying passenger beyond the City limits of Tumkur is not acceptable for the reason that at the relevant point of time, the said vehicle was neither being used for plying the passengers nor it is proved that at the relevant point it was plying outside the limits of Tumkur City. Infact the evidence of R.W. 1 clearly disclose that the said R.W.1 is not able to say whether the said vehicle is beyond the city limits at the relevant point of time by producing the relevant documents from the R.T.O., and police department. Under the circumstance, it is not open for the counsel for appellant to contend that there is violation of permit condition by the claimant and as well as by respondent No. 1.

However, the second contention raised by the Insurance Company regarding payment of interest is justified in view of the fact that the Apex Court in the matter of Oriental Insurance Co. Ltd. v. Mohd. Nasir 2009 AIR SCW 3717 has held that in case of compensation awarded in a claim arising out of Workmen''s Compensation Act, the claimant would be entitled to interest at 7.5% from the date of petition till the date of order and at 12% from the date of order till realisation. Hence following the ratio laid down in the said Judgment, this Court holds that, that portion of the Judgment and Order passed by the Court below regarding payment of interest on the compensation awarded is required to be modified to the effect that the claimant shall be entitled to compensation ordered by the Commissioner for Workmen''s Compensation with interest at 7.5% from the date of petition till the date of order and at 12% from the date of order till realisation instead of interest at 12% from the thirtieth day of the accident till the date of realisation as ordered by the Commissioner for Workmen''s Compensation.

Accordingly this appeal is allowed in part. The claimant is entitled to receive the award amount with modified rate of interest as above. The appellant--Insurance Company has already deposited the award amount, with interest as ordered by the Tribunal. Office is directed to release the award amount with modified interest in favour of the claimant forthwith. Balance, if any, remaining shall be released in favour of the appellant--Insurance Company.