The learned counsel Shri Kukday does not
dispute the fact that thee was no pleading before the Tribunal
by the respondent No. 2 Reliance General Insurance
Company in the written statement that in case it is found that
the owners are entitled to reimbursement, then the liability to
pay the compensation awarded should be proportionately
divided between the two insurance companies with whom the
vehicle was insured on the date of occurrence of accident on
29.01.2008. The contention, therefore, does not deserve any
consideration at this appellate stage.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 344 OF 2015
Gopalrao Punjaji Gayki,
...VERSUS...
Gopal s/o Dnyandeo Wakode,
Gopal s/o Dnyandeo Wakode,
CORAM: R. K. DESHPANDE, J.
DATE : 14thJanuary, 2016 .
Citation;2016(1) ALLMR386
1] On 28.09.2015, this Court issued notice for final
disposal of the matter. The Respondents are served. None
appeared for Respondent No.1. Shri D.N.Kukday, the learned
counsel appears for respondent No.2 and Shri R.D.Bhuibhar,
the learned counsel appears for respondent No.3.
In view of the fact that the notice for final
disposal of the matter was issued, it is not necessary to issue
fresh notice to the Respondent No. 1 who is not present
before this Court.
Hence, Admit.
The learned counsel appearing for Respondent
Nos. 2 and 3 waives service of notice.
Heard the learned counsels appearing for the
parties.
2] In M.A.C.P. No. 142 of 2008, decided on
11.12.2012, the Motor Accident Claims Tribunal, Buldhana,
has held that the claimants are entitled to compensation of
Rs.5,00,000/ inclusive of the amount of Rs.50,000/ towards
interim compensation under Section 140 of the Motor
disposal of the matter. The Respondents are served. None
appeared for Respondent No.1. Shri D.N.Kukday, the learned
counsel appears for respondent No.2 and Shri R.D.Bhuibhar,
the learned counsel appears for respondent No.3.
In view of the fact that the notice for final
disposal of the matter was issued, it is not necessary to issue
fresh notice to the Respondent No. 1 who is not present
before this Court.
Hence, Admit.
The learned counsel appearing for Respondent
Nos. 2 and 3 waives service of notice.
Heard the learned counsels appearing for the
parties.
2] In M.A.C.P. No. 142 of 2008, decided on
11.12.2012, the Motor Accident Claims Tribunal, Buldhana,
has held that the claimants are entitled to compensation of
Rs.5,00,000/ inclusive of the amount of Rs.50,000/ towards
interim compensation under Section 140 of the Motor
Vehicles Act (in short "the M.V. Act") along with interest at
the rate of 7.5% per annum from the date of filing of the
petition till its realisation. The Tribunal has further held that
the respondent No. 2 Reliance General Insurance Company
shall pay the compensation to the claimants and shall be
entitled to recover it later on from the owner of the vehicle.
The claimants are before this Court to claim further
enhancement of compensation to Rs.8,49,000/ on the basis
of such findings recorded by the Tribunal in the impugned
judgment.
3] Shri Kukday, the learned counsel appearing for
respondent No. 2 Reliance General Insurance Company,
has urged that the findings recorded by the Tribunal makes it
clear that on the date of accident, the offending vehicle which
is TATA Tipper bearing registration No. CG04ZC8638 was
insured with two different Insurance Companies, one is the
respondent No. 2 Reliance General Insurance Company and
another is the respondent No. 3 – I.C.I.C.I. Lombard General
Insurance Company Ltd. The Tribunal, according to him,
ought to have, therefore, apportioned the payment of
compensation proportionately between the two Insurance
the rate of 7.5% per annum from the date of filing of the
petition till its realisation. The Tribunal has further held that
the respondent No. 2 Reliance General Insurance Company
shall pay the compensation to the claimants and shall be
entitled to recover it later on from the owner of the vehicle.
The claimants are before this Court to claim further
enhancement of compensation to Rs.8,49,000/ on the basis
of such findings recorded by the Tribunal in the impugned
judgment.
3] Shri Kukday, the learned counsel appearing for
respondent No. 2 Reliance General Insurance Company,
has urged that the findings recorded by the Tribunal makes it
clear that on the date of accident, the offending vehicle which
is TATA Tipper bearing registration No. CG04ZC8638 was
insured with two different Insurance Companies, one is the
respondent No. 2 Reliance General Insurance Company and
another is the respondent No. 3 – I.C.I.C.I. Lombard General
Insurance Company Ltd. The Tribunal, according to him,
ought to have, therefore, apportioned the payment of
compensation proportionately between the two Insurance
Companies. He further urges that there was no occasion for
the Tribunal to discharge the respondent No. 3 – I.C.I.C.I.
Lombard General Insurance Company Ltd, from its liability to
pay the compensation. He further submits that if the
compensation is to be enhanced, the interest on the
enhanced amount shall be from the date of the award passed
by the Tribunal and not from the date of filing of the petition.
Relying upon several decisions of the Apex Court and of this
High Court, it is urged that before release of the amount to
the claimants, this Court should direct the owner of the
offending vehicle to furnish security for the amount of the
claim.
4] The points for determination are as under
1] Whether the claimants are entitled to
enhancement of compensation from
Rs.5,00,000/ to Rs.8,49,000/ on the
basis of the findings recorded by the
Tribunal?
2] Whether this Court should take into
consideration the contentions raised by
learned counsel Shri Kukday on behalf of
Respondent No. 2 – Reliance General
Insurance Company Ltd?
5] Undisputedly, the Motor Accident Claims
the Tribunal to discharge the respondent No. 3 – I.C.I.C.I.
Lombard General Insurance Company Ltd, from its liability to
pay the compensation. He further submits that if the
compensation is to be enhanced, the interest on the
enhanced amount shall be from the date of the award passed
by the Tribunal and not from the date of filing of the petition.
Relying upon several decisions of the Apex Court and of this
High Court, it is urged that before release of the amount to
the claimants, this Court should direct the owner of the
offending vehicle to furnish security for the amount of the
claim.
4] The points for determination are as under
1] Whether the claimants are entitled to
enhancement of compensation from
Rs.5,00,000/ to Rs.8,49,000/ on the
basis of the findings recorded by the
Tribunal?
2] Whether this Court should take into
consideration the contentions raised by
learned counsel Shri Kukday on behalf of
Respondent No. 2 – Reliance General
Insurance Company Ltd?
5] Undisputedly, the Motor Accident Claims
Tribunal has held that the claimants are entitled to
compensation of Rs.8,49,000/, but, has further held that the
claimants have restricted their claim in the claim petition to
Rs.5,00,000/ and hence, the claimants cannot be granted
the compensation more than Rs.5,00,000/.
6] In para (B) of the claim petition filed before the
Tribunal, the averments are made as under
(B) It is submitted that the deceased could have easily
earned more than 1 crore and he could have easily
lived up to 80 years. The claimants are unable to
make expenses for the huge amount and so for time
being, they restricts his claim to rupees 5 lakhs u/s
166 of M.V.Act. But they undertakes, to pay the
difference of Court fees, if the Hon'ble Tribunal
grants enhanced compensation than claimed.
It is not disputed that in view of the decision of the Apex
Court in the case of Nagappa vrs. Gurdayal Singh, reported
in (2003) 2 SCC 274, there would be no restriction that
compensation could be awarded only up to the amount
claimed by the claimants. In an appropriate case, where from
the evidence brought on record if the Tribunal/court considers
that the claimant is entitled to get more compensation than
claimed, the Tribunal may pass such award. The proposition
of law is not disputed and hence, the claimants would be
compensation of Rs.8,49,000/, but, has further held that the
claimants have restricted their claim in the claim petition to
Rs.5,00,000/ and hence, the claimants cannot be granted
the compensation more than Rs.5,00,000/.
6] In para (B) of the claim petition filed before the
Tribunal, the averments are made as under
(B) It is submitted that the deceased could have easily
earned more than 1 crore and he could have easily
lived up to 80 years. The claimants are unable to
make expenses for the huge amount and so for time
being, they restricts his claim to rupees 5 lakhs u/s
166 of M.V.Act. But they undertakes, to pay the
difference of Court fees, if the Hon'ble Tribunal
grants enhanced compensation than claimed.
It is not disputed that in view of the decision of the Apex
Court in the case of Nagappa vrs. Gurdayal Singh, reported
in (2003) 2 SCC 274, there would be no restriction that
compensation could be awarded only up to the amount
claimed by the claimants. In an appropriate case, where from
the evidence brought on record if the Tribunal/court considers
that the claimant is entitled to get more compensation than
claimed, the Tribunal may pass such award. The proposition
of law is not disputed and hence, the claimants would be
entitled to compensation of Rs.8,49,000/ as has been found
by the Tribunal and the claimants will have to pay the deficit
court fees thereupon.
7] Shri Kukday, the learned counsel appearing for
respondent no. 2 does not dispute the position of law that
normally the interest payable would be from the date of filing
of the claim petition. However, he has urged that this Court
has a discretion if it enhances the amount of compensation in
an appeal under Section 173 of the M.V.Act to make the
payment of interest at the rate of 7.5% per annum from the
date of passing of the order of the Tribunal. I do not find any
justification for restricting the interest from the date of passing
of the award by the Motor Accident Claims Tribunal. Thus,
the claimants shall be entitled to the enhanced interest on the
compensation at the rate of 7.5% per annum from the date of
filing of the petition on the amount of Rs.8,49,000/.
8] The learned counsel Shri Kukday does not
dispute the fact that thee was no pleading before the Tribunal
by the respondent No. 2 Reliance General Insurance
Company in the written statement that in case it is found that
the owners are entitled to reimbursement, then the liability to
pay the compensation awarded should be proportionately
divided between the two insurance companies with whom the
vehicle was insured on the date of occurrence of accident on
29.01.2008. The contention, therefore, does not deserve any
consideration at this appellate stage.
9] No doubt, the Tribunal has held that the
respondent No. 2 Reliance General Insurance Company to
pay the compensation to the claimants and thereafter to
recover it from the owner of the vehicle. However, in the
facts of the present case, it is not possible to hold that before
release of the amount deposited by the respondent No. 2
Reliance General Insurance Company, the owner should be
directed to secure the payment of compensation made to the
claimants. It was a third party claim and the liability of the
respondent No. 2 Reliance General Insurance Company
was unlimited. The Tribunal has recorded the specific finding
that the respondent No. 2 Reliance General Insurance
Company has failed to prove that the communication about
the dishonour of cheque submitted towards premium was
sent to the Regional Transport Office. The liability of
respondent No. 2 Reliance General Insurance Company is
absolute and hence, there is no occasion to direct furnishing
of security by the owner as a condition precedent for
withdrawal of the amount deposited before the tribunal.
10] For the reasons stated above, the appeal is
allowed. The claimants are held entitled to total
compensation of Rs.8,49,000/ inclusive of the amount of
Rs.50,000/ towards the interim compensation granted under
Section 140 of the M.V.Act along with interest at the rate of
7.5% per annum from the date of filing of the petition till the
realization of the entire amount. The appellants/claimants
shall pay the deficit Court fees, if any, within a period of 15
days from today. The appellants/claimants shall be entitled to
withdraw the enhanced amount of compensation only upon
the payment of deficit Court fees. The award passed by the
Tribunal stands modified accordingly. No order as to costs.\
by the Tribunal and the claimants will have to pay the deficit
court fees thereupon.
7] Shri Kukday, the learned counsel appearing for
respondent no. 2 does not dispute the position of law that
normally the interest payable would be from the date of filing
of the claim petition. However, he has urged that this Court
has a discretion if it enhances the amount of compensation in
an appeal under Section 173 of the M.V.Act to make the
payment of interest at the rate of 7.5% per annum from the
date of passing of the order of the Tribunal. I do not find any
justification for restricting the interest from the date of passing
of the award by the Motor Accident Claims Tribunal. Thus,
the claimants shall be entitled to the enhanced interest on the
compensation at the rate of 7.5% per annum from the date of
filing of the petition on the amount of Rs.8,49,000/.
8] The learned counsel Shri Kukday does not
dispute the fact that thee was no pleading before the Tribunal
by the respondent No. 2 Reliance General Insurance
Company in the written statement that in case it is found that
the owners are entitled to reimbursement, then the liability to
pay the compensation awarded should be proportionately
divided between the two insurance companies with whom the
vehicle was insured on the date of occurrence of accident on
29.01.2008. The contention, therefore, does not deserve any
consideration at this appellate stage.
9] No doubt, the Tribunal has held that the
respondent No. 2 Reliance General Insurance Company to
pay the compensation to the claimants and thereafter to
recover it from the owner of the vehicle. However, in the
facts of the present case, it is not possible to hold that before
release of the amount deposited by the respondent No. 2
Reliance General Insurance Company, the owner should be
directed to secure the payment of compensation made to the
claimants. It was a third party claim and the liability of the
respondent No. 2 Reliance General Insurance Company
was unlimited. The Tribunal has recorded the specific finding
that the respondent No. 2 Reliance General Insurance
Company has failed to prove that the communication about
the dishonour of cheque submitted towards premium was
sent to the Regional Transport Office. The liability of
respondent No. 2 Reliance General Insurance Company is
absolute and hence, there is no occasion to direct furnishing
of security by the owner as a condition precedent for
withdrawal of the amount deposited before the tribunal.
10] For the reasons stated above, the appeal is
allowed. The claimants are held entitled to total
compensation of Rs.8,49,000/ inclusive of the amount of
Rs.50,000/ towards the interim compensation granted under
Section 140 of the M.V.Act along with interest at the rate of
7.5% per annum from the date of filing of the petition till the
realization of the entire amount. The appellants/claimants
shall pay the deficit Court fees, if any, within a period of 15
days from today. The appellants/claimants shall be entitled to
withdraw the enhanced amount of compensation only upon
the payment of deficit Court fees. The award passed by the
Tribunal stands modified accordingly. No order as to costs.\
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