P.K Mohanty, J.:— The aforesaid four misc appeals arise out of a common judgment passed by the 2nd Motor Accidents Claims Tribunal, Cuttack (hereinafter referred to as ‘the Tribunal’). Misc. Appeal No. 330 of 1992 arises out of Misc. Case No. 87 of 1987, Misc. Appeal No. 331 of 1992 arises out of Misc. Case No. 89 of 1987, Misc. Appeal No. 332 of 1992 arises out of Misc Case No. 90 of 1987 and Misc. Appeal No. 333 of 1992 arises out of Misc. Case No. 88 of 1987. These appeals having arisen from a common judgment passed by the Tribunal, with the consent and agreement of the learned counsel for the parties, they are heard analogously and disposed of by this common judgment.
2. All the appeals are by insurer, New India Assurance Co. Ltd. against the judgment/award of the Second Motor Accidents Claims Tribunal Cuttack.
3. The brief of the cases is that on 10.1.1987, the truck No. OAC 6015 which was proceeding towards Dubiri side on the Express Highway at a high speed, at about 8 p.m, capsized to the right side of the road causing minor as well as some severe injuries to the occupants of the truck including the respondent No. 2 in each of the appeals.
4. The injured persons were removed to the local hospital and were treated for their injuries. The undisputed position is that the offending truck had a valid insurance policy with the New India Assurance Co. Ltd. at the relevant time of accident. All the claimants (respondents herein) had claimed a compensation of Rs. 20,000/- each for the injuries sustained by them. In the claim application, the owner of the offending vehicle, Manoj Kumar Mal has been arrayed as opposite party No. 1 and the insurer, New India Assurance Co. Ltd. was represented through its Divisional Manager, Cuttack as opposite party No. 2. The opposite party No. 1 contested the case by filing a written statement. It was pleaded, inter alia, that the offending vehicle had a valid insurance policy with the New India Assurance Co. Ltd. covering the date of the accident. But, however, opposite party No. 1 did not admit the accident, injuries of the petitioners in the alleged accident and the cause of the accident to be rash and negligent driving of the driver of the offending vehicle. The opposite party No. 2, the insurer, contested the case by filing a separate written statement. The insurer denied the claim and liability of the insurance company to pay any compensation. The Claims Tribunal framed following three issues:
(1) If the petitioner sustained injuries due to the rash and negligent driving of the vehicle No. OAC 6015 by its driver?
(2) If the claimant is entitled to get any compensation and if so, to what extent and from whom?
(3) To what relief, if any, is the petitioner entitled?
5. The learned Tribunal, on consideration of the materials and evidence on record, has recorded a finding that the petitioners sustained injuries due to rash and negligent driving of the driver of the offending truck OAC 6015. However, on consideration of the injuries of the petitioners in respective claim cases, the Tribunal awarded a sum of Rs. 15,000/- as a lump sum compensation to each of the petitioners, namely, Chanda Munda, in Misc. Case No. 87 of 1987 corresponding to the present Misc. Appeal No. 330 of 1992, Sabitri Hou in Misc. Case No. 88 of 1987 corresponding to Misc. Appeal No. 333 of 1992 and Padu Munda, petitioner in Misc. Case No. 89 of 1987 corresponding to Misc. Appeal No. 331 of 1992, sum of Rs. 8,000/- was awarded in favour of Rabi Munda in Misc. Case No. 90 of 1987 corresponding to Misc. Appeal No. 332 of 1992.
6. The Tribunal has further held that the offending truck had valid insurance with the New India Assurance Co. Ltd. but, however, negatived the pleas of the insurer that the claimant-petitioners were the passengers in the truck and as per the policy, the risk of passengers has not been covered in case of the offending goods vehicle, mainly on the ground that the insurance policy has not been produced to verify the contents thereof whether the risk relating to the passengers was covered under the policy.
7. The petitioners in each of the four cases were found to be labourers of the vehicle and were travelling in the offending vehicle and as such, it was held that the insurer was liable to cover the liability. In all the cases, the Tribunal has awarded an interest at the rate of 6 per cent per annum from the date of application till payment within the stipulated time and, in case of default in payment, a liability at the rate of 12 per cent interest per annum has been saddled.
8. Mr. P. Roy, learned counsel for the appellant contends that the Tribunal ought to have called for the original F.I.R chargesheet, M.V.I report and other relevant documents filed by the appellant in Misc. Case No. 174 of 1987 before coming to find that the petitioners in each of the misc cases, were labourers, travelling in the offending vehicle in view of the application filed for calling for such documents. It appears from the judgment of the Claims Tribunal that the appellant insurance company has not produced nor proved any such documents, but was content with filing an application calling for such documents filed in another case, which stood disposed of by then. The Tribunal seems to be right in rejecting such application, the copies of any such document having not been filed. It was for the appellant to produce and prove any document relied upon by it and if no material was produced to disprove the claim of the applicants, the case has to be decided on the materials available on record. Mr. Roy further contended that the Tribunal itself having found that the claimants in Misc. Case Nos. 174 and 175 of 1987 were passengers in the offending goods vehicle and as such not entitled to any compensation, it could not have come to a different finding, the petitions having arisen from the same accident. The contention of the learned counsel is misconceived. If on the basis of materials in any particular claim application, it is found that the claimants therein being passengers in a goods vehicle, are not entitled to any compensation, it is not understood as to how such a finding is binding on all other applicants where the claimants are different. In any vehicle, there may be different types of occupants, for example, a cleaner, a driver, number of cookies (labourers) for the purpose of loading and unloading of goods and also the owner of the goods and may be unauthorised passengers for hire or reward or gratuitous passengers, it depends on circumstances but only because some were found to be travelling as passengers, all the occupants of any vehicle cannot be termed as such. However, the finding and the judgment in the misc case being not filed by the appellants before the Tribunal or even in this appeal, such a question is irrelevant and academic.
9. Mr. Roy has further submitted that the award of penal interest on default is not permissible under law. He has referred to a decision in the case of Oriental Insurance Co. Ltd. v. Harapriya Nayak, (1994) 1 OLR 88, to substantiate his case. It has been held in several judgments of this court that power of awarding interest is discretionary and once discretion has been exercised by the Tribunal to award simple interest on the amount of compensation, there is no scope for retrospective enhancement for default of payment of compensation. A Division Bench of this court in the case of Oriental Insurance Co. Ltd. v. Harapriya Nayak (supra) at para 22 has held that a direction for retrospective enhancement for default in payment of compensation together with interest payable thereunder virtually amounts to imposition of penalty, which is not envisaged and prescribed. In that view of the matter, the award of enhanced interest made by the Claims Tribunal in the present cases is not sustainable in law and such penal interest at the rate of 12 per cent per annum as awarded is hereby set aside. The claimant-respondents shall be entitled to interest at the rate of 6 per cent per annum on the amount awarded by the Tribunal.
10. In the result, all the aforesaid appeals are allowed in part to the extent that the imposition of penal interest at the rate of 12 per cent per annum in case of default in payment within the stipulated time is set aside. The awards of the Tribunal are thus modified to this extent only. There shall be no order as to costs.
11. Appeals partly allowed.
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