^ HIGH COURT OF CHHA.TTiSGARH AT BILASPUR SjnaSe Bench : Hon'ble Shri DiJio Raosaheb Deshmukh. J. MJSC. ADpeat (Cl No.1341 of 2007 ^wa^it' The Orientai tnsurance Co. Ltd. versus Kilkiiiya and two others. ORDER Postfor 2>-04-2008 Sd/- Dilip Raosaheb Deshnwkh Judge RIQH COURT OF CHHATTSSGARH AT BSLASPUR SLngl^Bench : Honlbte Shri DiSio Raosaheb EteshmuRh, J. AoDeiSant Resoondents !.A.(ClNo.1341of200T The Oriental insurance Co. Ltd.. Through Branch Manager, Branch Office, Sadar Bazar Road, Jagdalpur, Distt. Baster (C.G.) Versus 1. Kitkiilya S/o Pakalu, Caste - Bhatara, Age about 50 years, R/o Juna Guda Baster, Tah.- Jagdalpur, Distt.-Baster 2. Loknath @ Kafiya S/o IViohan Singh, Age about 26 years, Caste. - Dhakad, R/o Karpawand, Present Manjhipara, Baster, Tah.- Jagdalpur, Distt.-Baster. (Driv©rof vehicSe) 3. S.K.Mishra, S/o H. Mishra Age About 26 years, R/o ViHage Baster, Distt. Baster (C.G.) AooeaS under Section 173 of Motor Vehicle Act 1988 Present : Shri Sudhir Agrawal, counsel for the appeltant. ORDER (Delivered on 3->^ dav of Aprii, 2008) jn this appeal, the appellant/jnsurer js aggneved by an award dated 01.08.2007 passed in cSaim case No. 200/2006 by the Motor Accidents CSaims Tribunal, Bastar, place Jagdaipur (henceforth the TribunaC) awarding compensation of Rs.1,03,600/- against the appeHant/insurer in a death case. 2. In this appeai, the foltowing facts are admitted: ^.w^ On 14.05.2006 respondent No.2 Loknath v^s driving Jeep No. C.G. 17 ZT 0275 (for short 'the Jeep'), which was registered for private use only, towards Balenga. On way, due to rash and negligent driving of Loknath the Jeep, contained a load offish seed, met with an accident, as a result of which, Dhaniram, who was seated at the irtmost rear side ofthe Jeep, died. The respondent No.1 KIIRiiiya/sol,e claimant is the father of the deceased and the respondent No.3 js the ovmer of the Jeep. Respondent No.2 i.e. driver of the jeep had a vaiid iicence to drive the said Jeep. 3. TTie appeJlant/insurer had, in its written statement, taken the defence that on the date of accident, the Jeep was being used for the purpose of carrying passengers ^iich was a breach of condltion of the policy ofthe insurance. Jt did not specificaljy aver that the jeep was being used for transportation ofgoods In vjolation ofthe poiicy condition. 4. TTie Tribunal whiie -awarding compensation of Rs.1,03,600/- fastened the liabiiity on the appellant/jnsurer on the ground that the appel!ant/insurer had fajted to prove that the Jeep was being used for carrying passengers. !t further directed the insurer to deposit th6 compensation within 2 months from the date of award, failing whteh, it shaii be jiable to pay Interest at the rate of 15% on the amount of compensation awarded from the date ofapplication till realisation. 5. Shri Sudhir Agrawai, tearned counsei for the appellanVJnsurer has assalied the jmpugned award on the foSIowing grounds: a) Tliat the Tribunal overtooked the evidence of the respondent No.S/owner that at the time of the accident the Jeep was being used for transportation of goods j.e. flsh seed which amounts to breach of poiicy condjtion. b) That the Tribunal w4iile awarding compensation ought "^^—-^^' ^^. not to have awarded penai interest at the rate of 15% in case the appeliant/insurer fajted to deposjt the compensatjon within 2 months ofthe date ofaward. c) That the Tribunal w4ii!e assessing compensation ought to have deducted a sum of 2/3rd from the income of the deceased towards expenses on his family. 6. Having considered the submissjons of the teamed counsel for the appeilant/insurer, S am ofthe considered opinion that under Section 149(2) ^ ofthe Motor Vehjcles Act, 1988, the appel!anVJnsurerha©to be required to specificaliy aver and prove the defences avaiiable to tt in order to avoid liabijjty to pay compensatJon. In the present case, the appellant/jnsurer did not specjficaily aver that at the time of accident the Jeep was being used for transportation of goods in breach of any specified condftion of policy. !n absence ofsuch a specific plea, the appeflant/insurer cannot be UZ^fl ^. t^-*- altowed to urge such a ground. TTie/argument advanced by the learned counsel for the appeSlant must. therefore. fail. As regards the award of penal jnterest foy the Tribunal in case of default jn payment of compensation wjthin 2 months is concerned, the matter js squareiy covered by a decisjon of Natlonal fnsursnce Co. Ltd. v. Keshav BQhadur and others, (1 ) ACCD 339 (SC) jn which it was held that a djrectjon jn the award for retrospectjve enhancement of interest for defauft in payment of the compensation together wjth interest payable thereon vjrtually amounts to impositjon of penaity \^ilch is not statutorily envisaged and prescribed. In this view ofthe matter, the penal interest at the rate of 15% per annum awarded by the Tribunal against the appellant/insurer in case of defauit in 'depositing the compensation within 2 months from the date ofaward i's iiabie to be set aside. '"'^.> /y^^h ^ t^-^ %li c^} 7. it was argued by the ieamed counsei for the appellant that the Trlbunai ought to have deducted a sum of 213^ of the income of the deceased towards expenses of hls femily and assessed ioss of d©p@ndoncyoniy on tho basis of remaining 1/3rd sinc©tho sote claimant was the father of the deceased aged 50 years. Reljance was piaced on Donat Low's Macfisdo & others v. L Ravindra and others, 2000(1) T.A.C. 208 SC. However, a perusal ofthe paragraph 14 ofthe impugned award shows that the Tribunal has precisely done the same by deducting 2/3re! ofthe income ofthe deceased towards expenses on the family ofthe d©c@as@dand assessing toss of d©p@nd©ncyon th©basis of 1/3rd ofthe jncome ofthe deceased. 8. in the result, the appeal Is partly allowed. The impugned award whereby Jjabiljty was fasteried on the appellant/insurer to pay compensation of Rs.1,03.600/- is affirmed. However, award of penal interest at the rate of 15% per annum from the date of award in case of clefaujt by the appeltant/insurer in depositing compensation within 2 months from the date ofaward is set aside. Sd/- Dilip Raosaheb Deshmukh Judge Anjani