^' ..) ./ BEFORE THE HIGH COURT OF JUbICATURE AT BILASPUR. CHHATTESGARH Division Bench M.A. No3^/2005 APPELLANTS Insurers The Oriental Insurance Company Limited, Through: Insurers . ,^>' Company Limited, ^^>r ' Its Divisional Manager, ^"*Tn^'(^ Divisional Office, Opposi •^^y'" Divisional Office, Opposite High Court, Bilaspur,(C.G.). ^ ..."•' ^.-" RESPONOENTS .4^.bRIVER 2)<OWNER VERSUS ^-^Rakesh Kumar Gupta, S/o. Shri Bhagwan Das Gupta, aged about 23 years, R/o. Miners Colony, Near Water Tank, Quarter No.M/330,AT/PO/PS. Bijuri; District Anuppur. Madhyo Pradesh. ^__ Ashok Kumar Sharma, S/o. Shri Musafir Sharma/ R/o. Miners Colony, Quarter No. 103,AT/PO/PS Bijuri, District Anuppur, Madhya Pradesh CLAIMANTS «-/). ^4j ^~5> /" Smt. Ram Bai Wd/o. Milu, aged obout 43 years, Ujiyala, Kumar, aged about 19 years, S/o. Late Milu, Jwaia Kumar, aged about 16 years, S/0. Late Milu, Both the Respondents No.4 and 5 Being minors, through natural guardian/mother, Smt. Ram Bai (Respondent No.3) —2 ^^^-^:T:^.'."-.^. ^r-:S:^wS-:^<^i -^— r -2- All the Respondents No.3 to 5 R/o. Dafai No.2, Jhagarakhand Colliery, Dafai No.2, Tehsil Manendragarh, District Korea, Chhattisgarh \^^ APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT.1988 ^.GAMSZJHEA^A£DSAIED:jB^5^jBfll. -:=-=s-aa.u HI6H COURT OF CHHATTIS6^RH AT BIL OIVISION B6NCH: HON'BLE MR. I.M.QU&DUSI A HON'BLE MR NAWAL KISHORE A6ARWAL JJ ADMllant RasooiKtents M.A. No.955/2005 The Oriental Insurance Company Ltd. Vs Rakesh Kumar 6'upto <& others Present.' Mr. Vinay Harit, Sr. Advocote with Mr. S.K. AAjshra, Adv. for the appedoint. Mr. A.K. Prasad, Advocate for rCTpondent No. 1 <& 2. OW)Efc(Oraft ff^ DwinbT, 2010) I.M Quddusj. J: 1. Heard. 2. The appellant-insurance company has filed this appeal chaljenging the award dated 02.05.2005 passed by the learned Additional Motor Accident Claims Tribunal, Manendragarh, &jstrjrt Koriya (for short- 1the tribunaf) in Claim Case No.38/04 thereby awarding a compensotion of fts.10,63,000/-alon9 with interest @ 9% p.a to the cJaimants. The tribunal has also direct^ed thot in case of defcufr jn making payment of amount awarded within time, the clajmants shall be entitled for interest © 15% p.a 3. Brief facts of the case are that on 19.6.2004 dt about 11.30 p.m. deceased Milu, who wos'workmg 'm the South Eastern Coalfields Ltd.. at Khongapani, was 9oin9 along with his col|ea9ues on hjs bicycle to his job. When he reached necr Siddh Baba Ternpl^ turn, one Mcruti Van bearjng re9istratjon number MP23/6765, driven by non-appjjcant No.l in a rash and negligentmanner, dashed the deceased Milu as a resuh- of which he sustained grievousinjuries on various pwts of his body and became unconscious. He was taken to the Central Hospital, Manendragarh for treatment where he died on 21.4.2(X)4. The claimants, w/ho are dependent on the deceased, have filed claim petition seekmg compensation to the tune of Rs. 18,50,000/- under various on vorious grounds. , y 4. On the pleadings of the port-ies, the tribunaf has f^am^ <»many as four issues and aft-er considering the material wailable on record, awarded a sum of Rs.10,63,000/- as compensatjon under vartous heads alongwith interest @ 9% p.a. The tribunal has furl-her dired-ed that 1n case the payment of award is not made within the stipuJcrt-ed period, the clajmants shall be entitled for interest © 15% p.a. 5. Learned Senior Counsel for the appellant-msurance compony argued that at the time of accident driver of the vehicle was not possessing the vajjd and effective driving licence and that the vehicle, which was insured for private purpose, was being used for commercial purpose and thus, the vehicle was plied in violation of terms ancf conditions of insurance policy. He furt-her submitt-ed that the tribunal has wron9Jy applied the multiplter as accorcjing to the postmort-em reporl- the o.Qe of the deceased was 52 years and jn this condition, the proper multipljer would be 11. He •furt^her submits that the interest awarded by the tribunal on the amount of compensation is too excessive and the tribun<|l ought to have granted interest @ 6% p.a Further, in absence of any provision regarding penal interest in the AAot<r Vehicles Act*/ 1988, the tribunaf has committed a mistake in dired-ing that- jf the amount awarded is not paid within time, interest © 15% shall be payAle. 6. We have heard learned counsel forthe part-iesand perused thejmpugned award as also records of the trjbunal below. 7. So far as the argument of learnect Senior Counsel for the appellant that the vehicle was plied in breach of insurance policy is concerned, from perusal of the record we find that in support- of this plea no evidence has been led by the insurance company and therefore in absence of any evidence on record, this plea cannot be said to be supported by the evidence and proved. Thus, this argument of the learned Senior Counsel has no force. 8. So far as the argument of learned Senior Counsel fpr the appelJant that the tribunal has applied wrong muh-jplier is concerned, W<B have perused the impugned award and found that the tribunal, while assessing the loss '"'^&.. i ^...J' i 1 ^ j "^y^^ ..l^ •'•••^j^'^'fr^'''--. ^^^^ of dependency has not considered thc actual income of^the deceased, which was Rs.11,114/- per month and also future prospects an<i therefore if re-calculation is mo.de treating the age of deceased as 52 years and applying the multiplier of 11 instead of 13, there will be no drfference. 9. So fcr as the argument of learned Senior Counsel for the appellant that the interest awarded on the compensation amount is too excessive is concerned, the same cannot be considered by this Court as no permjssion has been obtained bythe appellant-insurance company under Sed-ipn 170 of the Motor Vehicles Act, 1988 and therefore the appellant cannot assail the quantum fixed by the tribunal. H<w€ver,we feel that penal jnterest imposed by the tribunal @ 15% is not proper m viax/ of the law Idd down by the Hon'ble Supreme Courl- in the mffM-er of Nationd Insurance Cbmpany Ltd. Vs, tdeshw Bdhodyr and others report-ed in (2004) 2 SCC 370 wherein the Hon'ble Supreme Court has held thot direction in the award for retrospecl'ive enhancement of interest for defauh- in payment of the compensation together with jnterest payable thereon virt-ually amounts to imposition of penalty whichis not stafutorily envisaged and preschbed, the tribunal has erred in awwding penal mterest. 10. In the resuh-, the appeal is part-ly allowed, the impugned award, so far as it relfft-es to imposition of penal jnterest @ 15% in case the amount of compensation is not paid within the stjpulated period, is herebyset aside. The clajmants shall only be entitled for simple interest @ 9% per annum from the dcrt-e of filing of the application tjll the act-ual payment is made. 11. The appeal is allowed m part- to the extent indjcated above. No order os to cost. 12. CeM-jfiedco^as per rules. "Sd^ 1 LM-Quddusi | Judge Sd/- N. K. Agarwal Judge ftoshan/-