IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.105 of 2002 NATIONAL INSURANCE CO.LTD. REGD. OFFICE AT 3, MIDDLETON STREET, CALCUTTA-70007. BR. OFFICE AT SUDARSHAN BUILDING NAGARPALIKA CHOWK, P.O., CHAPRA, P.S.- CHAPRA TOWN, DISTT.- SARAN (O.P. NO. 2) …. (INSURER OF BUS NO. BR-04A/0061) ……… APPELLANT Versus 1. NIRU SAHAY W/O LATE BINOD KUMAR SRIVASTAVA 2. NOOPUR D/O LATE BINOD KUMAR SRIVASTAVA 3. AKANCHA SRIVASTAVA S/O LATE BINOD KUMAR SRIVASTAVA 4. AMAN S/O LATE BINOD KUMAR SRIVASTAVA (RESPONDENT NO. 2 TO 3 ARE MINORS AND UNDER THE NATURAL GUARDIANSHIP OF THEIR MOTHER NIRU SAHAY) ALL R/O MOHALLA RATANPURA, P.O. & P.S. BHAGWAN BAZAR, DISTT.- SARAN. PRESENTLY RESIDING AT MOHALLA SHAO BAZAR DHELAJI KA MANDIR, P.S. & P.O.- BHAGWAN BAZAR, DISTT- SARAN. ……. (CLAIMANTS) ……….. (RESPONDENT) ………. (RESPONDENT Ist Set) 5. SMT. SHUSHILA SINHA W/O RAJESHWAR SINGH PERMANENT R/O VILLAGE- RAMPUR KHORRUM VIA-NAGARA, DISTT.- SARAN. PRESENTLY, RESIDING AT GANDHI CHOWK, P.O. & P.S.- CHAPRA TOWN, DISTT.- SARAN (O.P. NO. 1) ……… OWNER OF BUS (BR-04A/0061) 6. AJAY KUMAR PRASAD S/O RAJ MANAL PRASAD R/O MOHALLA- KASNI BAZAR, P.S.- BHAGWAN BAZAR, P.O- CHAPRA, DISTT.- SARAN. (O.P. NO. 3)……. (DRIVER OF BUX BR-04A/0061) …………. (RESPONDENT 2ND SET) 7. AKHTAR HUSSAIN S/O MOHD. YAKUB R/O 87/166 G.T. ROAD, ACHARYA NAGAR, KANPUR. PRESENTLY RESIDING AT MOHALLA- MAKHDOIOM SARAI AT P.O. & P.S. & DISTT.- SIWAN (O.P. NO. 4) JOINT OWNER OF TRUCK NO. U.P.- 78/9325 8. MOHAN PD. SAH S/O BENGALI SAH R/O 87/166, G.T. ROAD, ACHARYA NAGAR, KANPUR PRESENTLY RESIDING AT MOHALLA- DIN DAYAL NAGAR P.O. & P.S. & DISTT. SIWAN. (O.P. NO. 5) JOINT OWNER OF TRUCK NO. U.P. 78/9325 9. UNITED INDIA INSURANCE COMPANY LTD. HEAD OFFICE AT 24, WHITES ROAD, MADRAS, PIN- 600014. BR. OFFICE NEAR B.SEMINARY SCHOOL J.P. MARKET 3RD FLOOR, SRI NANDAN PATH, P.O.- CHAPRA P.S. CHAPRA TOWN DISTRICT- SARAN (O.P. NO. 6) INSURER OF TRUCK U.P.- 78/9325 10. SUBHASH SINGH S/O SUNDER SING R/O VILLAGE & P.S. GUTHAINI, DISTT.- SARAN. (O.P. NO. 7) DRIVER OF TRUCK NO. U.P.- 78/9225 ………….. (RESPONDENT 3RD SET ……………………………………………. RESPONDENTS ----------- For Appellant : Mr. Sanjay Kumar No.1 Adv. For Respondents : Mr. Dineshwar Mehta Mr. R.R. Sahays Mr. Durgesh Kumar Singh For Respondent -9 : Durgesh Kumar Singh Adv. --------------- 15. 24.02.2011 Heard the parties. The appellant is aggrieved with the judgment and award dated 25.6.2001 and 7.7.2001 passed by the 6th Addl. District Judge-cum-Motor Accident Claim Tribunal, Chapra in Claim (MACT) Case No. 45 of 1997, by which he has allowed compensation to the amount of Rs. 7,50,000/- and apportioned the liability of the Appellant Insurance company to the tune of Rs. 3,75,000/- with an interest of Rs. 9% per annum interest from the date of filing the claim petition till its realization. The Appellant contends that it had transpired that the driving license of the driver was fake which was marked exhibit-A (annexure no. 1) here and, therefore, since it was a breach of the condition, the Insurance Company is not liable to indemnify the owner. Further submission is that liability was miscalculated at Rs. 9,000/- as against Rs. 6,000/- as also that consortium and loss of estate each was assessed of Rs. 15,000/- as against 5000/- and 2,500/- respectively fixed by the Schedule II of the Motor Vehicles, Act. On the other hand, the claimant had contended that since the owner of the Bus, who had contested the suit, had vehemently argued that the driver had valid license and, therefore, there was no willful breach of contract on his behalf and this issue could not be raised now. Further submission is that the deceased was a medical representative who was earning Rs. 9,000/- per month and after deduction of 1/3rd of his salary it comes to Rs. 6,000/- and, therefore, there was no miscalculation by the Tribunal. He contends that there is no absolute bar on the Tribunal to pay a sum exceeding the one mentioned in the Second schedule as consortium and loss of estate, if it considers necessary to do so in the interest of justice. On going through the documents and hearing of the rival contentions undoubtedly the Appellant was saddled with only ½ (half) of the compensatory amount. Since the other Insurance Company as accepted its liability to the extent of 50%, I am not inclined to interfere with the order impugned. Further since the accident had taken place in the year 1999, I feel, it is expedient and in the interest of justice to ensure that the payments are made to the claimants as per the order of the Tribunal without any further delay. However, in my view, also, the interest rate is little arbitrary at 9% per annum, therefore, I reduce it to 7% per annum from the date of filing of application till its realization. If, the insurance company feels it is entitled to recover the amount from the owner of the truck, he may proceed in accordance with law and this order shall not come in its way. With these observations the appeal is dismissed. The statutory amount of Rs. 25,000/- deposited before this court is directed to be remitted to the court below for an early disbursement to the claimant as part of the compensatory amount. The Lower Court record be also returned to the court concerned immediately. Fahad. ( Anjana Prakash, J. )