Onkarlal Garg and Another vs New India Assurance Co. Ltd. and Others

T.N. Singh, J.—Heard counsel.

There is a cross-objection but the appeal in my view is hopeless and there is no need, therefore, to pronounce on the cross-objection.

Respondent-cross-objector is the insurer, who had made a deposit of Rs. 25,000/- when order was passed for interim compensation. After final order is passed disposing of the claim petition this appeal is preferred and respondent insurer complains that although care is taken by the Tribunal to order refund of the amount deposited by it, interest has not been awarded on that amount.

Insofar as the appeal is concerned the only contention pressed by Mr. Raju Sharma is that the policy of insurance was a comprehensive one and, therefore, it did not matter even if the deceased was a gratuitous passenger. However, that contention is wholly meritless because policy of insurance specifically limited the use of the tractor for agricultural purpose. It was not meant to carry any passenger. Rightly, therefore, the appellant owner of the tractor has been held liable for the compensation awarded. Luckily for him, the respondents-claimants have not preferred cross-objection for the enhancement of the amount awarded, which obviously is grossly inadequate. The tractor had turned turtle resulting in the death of the claimant''s son.

Whatever that may be, this appeal has no merit and it is dismissed. The decision is in line with the law laid down by this court in The United India Insurance Company Ltd. Vs. Mst. Sukhiabai and Others, wherein insurer''s right to reimbursement on the principle of restitution has been recognised. Insofar as the cross-objection is concerned it is to be observed that the question of mandatory interest is germane when the claimant is enforcing the statutory liability of the tortfeasor. Otherwise, to award interest or not in the restitution proceeding is within the discretion of the Tribunal. If the respondent had not been heard when the order was passed and prayer for interest made was arbitrarily rejected, it is open to him to pray for review of that order. But, in this appeal, that question cannot be decided.

In the result, the appeal and cross-objection are both rejected without any order as to costs.