^^ ^ _^s% ^y IN THE HON'BLE HIGH COURT OF CHHATTISHGARH AT BILASPUR M.A.(C)No.- 4-7 1/^-0 APPELLANT B.B. ^M&^^- RESPONDENTS :HE ORIENTAL INSURANCE CO. LTD. THROUGH BRANCH MANAGER, BRANCFI OFFICE-16, R.S.S. MARKET, P.II. BIIILAI, DISTT.- DURG C.G. ^ Vj-s. L<-1. SONIA BAI W/0 LATE MANGAL i^ YADAV, AGE 38 YRS. v^o VIPATTI BAI D/0 LATE MANGAL YADAV, AGE 15 YRS, ^ JAMUNA BAI D/0 LATE MANGAL YADAV, AGE 13 YRS, \ GANGASAGAR S/0 LATE MANGAL YADAV, AGE 09 YRS, ^ NARESH KUMAR S/0 LATE MANGAL ^ YADAV, AGE 7 YRS, l^OR MINOR RESPONDENTS N0.- 2 TO 5, THROUGH GUARDIAN MOTHER SONIA BAI WIDOW OF MANGAL YADAV, ALL RESPODENT RESIDENT OF VILLAGE HARDI, THANA - HIRRI, TAHSIL AND DISTRICT- BILASPUR (C.G.), RAMVISHAL S/0 SHYAMLAL SAHU AGE 40 YRS, RESIDENT OF ROHAKA BASTI, BHILAI, THANA - SUPELA, ,TAHSIL AND DISTRICT.- DURG (C.G.), RAKESH KUMAR S/0 ARJUN PRASAD SAHU AGE 50 YRS, RESIDENT OF TELIBANDHA, RAIPUR, TAHSIL AND DISTRICT.- RAIPUR (C.G.), APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT OF AT _HONSBLE,Mt,.p_RASHANT JJ. . The Orientai Insurance Co, Ltd. Vs Sonia Bai A.others ^) Mr. Sudhir Agar^al, Advocote for th@ oppeilant. a^nr. SudhirVerma Advocate for respondent Nos.1 to ^gt (1st 1M. Qvddusi. J; L ChalJenge in the instant appeaL fiJed by T'he apDeliant-lnsyrance Corripaw, is to th.@ ai^ard dsted 12.9.2007 by the ^ Additiona! Motor Accident Claims Tribunal, (FTQ, Bsbspur (C&) In CJaim Case No.40/2005 partly alb^ing the ciaim petition filed by the claimants and fasteniriQ- jiQbiiity on the •appeiiant-Insurance Campany to pay compensation to the e!aiiTiants» 2. Permjssion under Section 170 of th@ Motor Vehicles Act. 1988. (for short 3the Act, l988r) to contest the claim on ali availQbJe defences ix/as qranted to the •appeiiant-jnsyrance company/ 3. Facts of th@ case, in nutshe!!, are that on 12J. 2005 at about 9,00 p»m- tanker bearing registration number C604-ZC-5424, being driven in rash & .negljgent manner by the. respondent No,l herein, dashed t'he deceased Mangai ¥QdQV as a result he died instQntaneoysly, The cloimQnts/respondent NosJ & 2/.y/ho are ^/idow & chiidren of the deceased, filed a claim petition uncler Section 166 of the Act, 1988 cbiminQ compensation for the death of deceased MonQQl YadGV in the sum of Rs.lO,5Q,OOOA from the driver, owner .& insurer of the offending vehicte. 4, LeQrned ClaJiTis TribuTOt, after takjng not©of the eyidcnce avaiJabie on record, heid that so,Jd Mangal Yadav died in the accident by the 1 . . ^ :riis^ B 'M^S'k i "t J -•^f "^>-,.. ~^'"" ^'^.•^••^^ offending vehicte'due to negligent driving of its driver and thus the .claimants ar@ entitled for compensGtion. Therefore. the Cbinis Tribunai fixed .Rs,4,44,OOOA as the amount of compensation. The Cbsms Tribuna! has further directed that in case the amount of compensation js not.paid ^ithin stipubted time, then 9% p.a interest shail be payabb on the amount ofcompensatjon, 5, Referring to proviso to Section 14 (2) of the Act, 1998, w'hich provides that ^//cence ta dnve ^ transpart veh'cie carrymg of ^r ^zardaw mfi/re sh^f/ be cffect/^e far a per/'ad cfane year', iearned counsel for the QppeliGnt-InsurQnce Company argued that dnving iicence } mitiaJ!y jssoed to the driver of offending vehielc for a period of three years and thus, he was not hav.ing valid and ef.f@ctiv©driving Jjcence to drive the vehicie carrying of danqerous or haiGrdous natore and.therefore th@ appefbnt Insurance Company is not iiable to pay any compensation as there was breach of conditions of insurance policy, He further argued that compensation awarded by the Cbims Tribunai is not in accordance i¥ithhw as wrong muJtipiier has been appiied and ©ven th.e sum awarded undcr varlous oth@r Qdmissib!e heads are not in accordonce with the provisions of the Act, 1988. He has further submstted that in. absence of any provision regarding penal interest in the Act, 1988, the Ciairns Tribuno! has committed a mistake in directing that if the omoynt' a^arded is not paid ¥nthmtime, interest @ 9% shall be payabie. 6. On the other hond, learned counse! for th@'respondent-ciaimants has supported the impugned award. Z We hove heard learned counsel for the parties and perused the records of the Trsbuna! as aiso the impugned award. 8, As faras the first argument of iearned counsel for the appellant regording breach of poiicy condition is concerned, we have perused the insurance poiicy i^hich is a package policy for Zone B, 6'oods cQrryinq commercial vehicie (other than two wheelers). In this policy it nowherc mentjoned that the vehicle WQS meQnt for carryJnQ aoods of dangerous or hozardous natyre» Registration certifiCQte as we'n as fitness certificate of the vehicfe also not.show that th@ vehicie was of guch nature« It js true that ^hen the vehicie-in-questjon was seized, it carrying ojl, but jt is not ciear thot as to of which type of oi! ^os ba.ded in the vehicie. Shr'i Jagdish Tjwari, ^ho yi/as ^orking as Assistant 6rade»all in the office of'KTO, Raipur, was produced by the appeliant-Insurance Compony in the ^/itness box and he has stated that Licence No.2775/RPR was not issued by the RTO, ftaipur in favour of the driver of vehicle m question nameiy RGmvJlas, but infact drsvjng iicence of driver of offending. is havsnQ number 1775/RpR and not 2775/RPR. Therefore, the apDeliant faiied to prove that Driving Licence No< 1775/RPR was not issued to the driver of the offending vehicte. 9. So far as the reiiance on the proviso to Section 14 (2) of the Act, 1988 is concerned, proviso to Sectson 14 (2) has been insertedby the Act 54 of 1994 w.e,i. 14. ll»1994, i^hereas m the present the driving licence wa^ issued to the drsver of offending vehicie on 15.6.1989 i.e. much pnor to the msertion of-that proviso, which not made effectsve i¥ithretrospective effect, and as such, that proviso ^ouSd not b@-applicable in the of Jicence prior to its jnsertion. .10. In view of above discussjon, it cannot be that there was anv breach of condition of insur.ance policy or that on the date of accident the driver not having valid and effective d.rivjng licence to drive the said vehiice and th©refore, the cippeiiant-insurcince ' company is not liabb to pay compensatson. 11. Nc^ coming to the second argurnent advanced by leQrned counse! for the appeilant regardsng quantum of compensation. The Tribuna! has the ann-ual incorne of the deceased at Rs,36,CxjO/-n by month!y eQrnina of deceased at Rs.3,000/- and after deducting 1/3 from the annual jncome to^ards personaJ expenses of the deceased and applying muitipljer of 16, has assessed the tota! loss of dependency at Rs.3,84,000/-. Besides this, the CJaijsns,Tribynal has ay/arded Rs.lO/JOOA toi^ards funeral expenses and Rs.50,000/- toie/ards of iove & affection and of consortium. Ho%re¥@r, Sooking to the numbers of dependents, ^hich are 5 jn the cose, the Claims Tribund, as per decision of the Hon'bie Supreme Court m the matter of (Smt.) and' others -vs- Trsnsp&rt CorsorQtsQK s/fd Gaot/mr reported .in ff009) 6 SCC 121, should have deducted 1/4 towards the persona! expe.ndi+ure ofthe decsased. Further, iooking to the age of the deceased, muitjp!i@r of 16 oppiied by the Claims Tribuna! is also not proper and the Cbsms Trjbunal should have applied th© muitipii.er of 15 in light of Saria Vermo's case (supra), Further, the sum awarded by the Claims TribunoJ under various other'admissjbb heods is also not in accordance i^ith the Second Schedule appended to Section 163-A of the Act, 1988. 12»We aiso fee! that the pena! interest imposed by the CJGims Tnbuno! @ 9% p,a in the amount is not depossted within stipulated time, is also not proper and the same deserves to be set aside in viei4/ of the law bJd down by the Hon'ble Supreme Court in th@ matter of CQiiipmy Ltd. Vs. Keshav Bahadur and ©thersreported in (2004) 2 SCC 370 ^herein the Hon'bJe Supreme Court has heid that dire'ction in the a^ard for retrospective enhancernent of jnt.erest for detGult in payment • ©fthe compensation toqether i^ith interest payabie thereon virtually amounts to imposition of penalty which is not stGtutoraiIy envjsaged and prescribed. 13. Thu^, if we i/4 from the annua! income of the decea^ed ie. R5\36,000/-B, QS assessed by the Claims Tribunal, and thereafter applied the multiplier of 15 m it, th@ total of dependency ^>ouid come to Rs,4,05,000/an. Besides.this, we are vie^ of that the clGimants ar@ entitied to aet Rs.5,000/- towards funeral expenses, Rs.5,000/- towards ioss of consortjum to the widow, Rs.D.OOOA each to^ards Joss of Jove and affection, Rs.D.OOOA to^ards of estate. Thus, the totaf omount under other heads comes to Rs.40,000/- (SOOO-t-DOOO-s-ZSOOO+DOOO), 14. AccordinQiy, we are of ^iew that the cbimcints are entitled for totQ! compensation of Rs.4,45,000/- in al! dong with simple interest ©6% p.a from thet"date of fiiing of applscation tjll the amount of compensation is octuaiiy made. Since no Qppeal for enhancement hQS been fiied by the cJGJmants, the Gmount of compensation awGrded by the Claims Tribunai should remain snt-act, ho^ever, th©claimants shali be entitled for 6% o.a ^^ simpi®interest from the date of fiiing of ciaim application tili its actuai realizatione 15, In the resuit, th@ appeai is allowed in part, the inipuaned Qward js niodiBfy to the exferst that no^'the claimants shdJ also be e'ntitted.for sirfjple interest •@ 6% p<a. on the .ai^arded amount froni the datc of filing af applicotion tsll actuai payment is made« The direction of thc Claims Tribuna! regardina payment of interest @. 9% in case the amount of compensation ig nat paid yvithin the stipulQted peri'od, is-hereby set aside. Rests of the condstions irrsposed bythe Tribunal shall remain intact. il6«The^DDeai js allowed to the indicated above. No order as to costs, Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge