Bookmark
PDF
Share
CaseIQ

Oriental Fire & General Ins. Co. Ltd. v. Mast Ram And Others

Himachal Pradesh High Court

Jun 27, 1989

Judgment

CaseIQ

Smart Summary (Beta)

Factual and Procedural Background

This opinion addresses two consolidated appeals arising out of the same award of the Motor Accidents Claims Tribunal, Shimla: F.A.O (MVA) No. 75 of 1981 (Oriental Fire & General Insurance Co. Ltd. v. Mast Ram) and F.A.O (MVA) No. 77 of 1981 (Mast Ram v. Hari Ram). The two appeals were heard together and decided by a common judgment.

The core facts as recorded in the opinion are: On the night of 26 September 1976 at Taradevi, many people had gathered to watch Ramleela. A truck bearing registration No. HIM 4495 (driven by respondent No. 3) allegedly came on the wrong side at high speed and struck truck No. HRE 1991, which in turn pushed bus No. HIL 3793. The deceased, Prem Chand (18 years), a 9th class student and the only son of the claimants (father and mother), was crushed between truck HRE 1991 and bus HIL 3793 and died of injuries sustained in the accident. The claim petition sought Rs. 40,000 as compensation. The Tribunal awarded Rs. 48,000. The insurer (Oriental Fire) appealed (F.A.O. No. 75) challenging the award on merits. The claimants appealed (F.A.O. No. 77) seeking enhancement of compensation and interest from the date of filing the claim petition (12-11-1976) until realisation of the amount.

Procedurally: Respondent Nos. 4 and 6 (vehicle owner and Himachal Pradesh Road Transport Corporation respectively) contested the claim; respondent No. 3 (the driver) and respondent No. 5 proceeded ex parte. Evidence was led on both sides, including eyewitness testimony and a post-mortem examination.

Legal Issues Presented

Whether the insurer (Oriental Fire & Genl. Ins. Co. Ltd.) can challenge the Tribunal's award on merits and on the quantum of compensation in appeal.
Whether the claimants are entitled to have their claim amended / enhanced (from Rs. 40,000 to Rs. 80,000) and whether a Tribunal may award compensation greater than the amount specifically claimed.
Whether the claimants are entitled to interest on the awarded amount from the date of filing the claim petition (12-11-1976) until the date of realisation, and if so at what rate.
Whether a claim for interest (if not raised before the Tribunal) can be raised for the first time at the appellate stage.

Arguments of the Parties

Appellant (Oriental Fire & General Insurance Co. Ltd.)

Challenged the Tribunal's award on merits (specific grounds of illegality or how the award erred were not pointed out in detail in the appeal).
Adopted substantially the same pleaded position as the owner of truck HRE 1991, contesting the finding of negligent driving against respondent No. 3.
Opposed the claimants' request for interest on the awarded amount; relied on authority (Gulab Devi Sohaney v. Government of Madhya Pradesh) to resist payment of interest.
Filed an application (CMP No. 2170 of 1981 in F.A.O No. 75 of 1981) under sections 151, 152 and Order VI, rule 17 CPC read with sections 96 and 110-A to 110-D of the Motor Vehicles Act to allow it to challenge the award on all grounds open to the insured.

Claimants (Mast Ram and spouse)

Sought enhancement of compensation (application to amend the claim petition from Rs. 40,000 to Rs. 80,000 — CMP No. 73 of 1989 in F.A.O No. 77 of 1981).
Sought interest on the awarded amount from 12-11-1976 (date of filing of the claim petition) until actual payment, contending that payment of interest had become a rule and the award deserved modification to that extent.

Respondent No. 4 (owner of truck HRE 1991) — position adopted in pleadings

Asserted the accident occurred because truck No. HRE 1991 and bus HIL 3793 were wrongfully parked on the National Highway, blocking free flow of traffic while people gathered to watch Ramleela, narrowing the road.
Contended the deceased was not directly hit by respondent No. 3's truck but may have fallen from the roof of the bus; denied that the driver of truck HIM 4495 was driving rashly, negligently, or under intoxication.

Respondent No. 6 (Himachal Pradesh Road Transport Corporation)

Admitted ownership of bus HIL 3793 but denied contributory negligence; maintained the accident occurred due to the fast and negligent driving of truck No. HIM 4495.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gulab Devi Sohaney v. Government of Madhya Pradesh, 1971 ACJ 214 (MP)	Authority relied on by the insurer to oppose the payment of interest to claimants.	The court noted that assistance from this decision was sought by the insurer but found it not applicable in view of later Supreme Court authorities. The insurer's reliance on this case was rejected.
Narcinva V. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC)	Supreme Court authority permitting interest to claimants (court treated it as establishing that interest at 12% p.a. has been allowed).	The court relied on this Supreme Court decision as a basis for allowing interest on the awarded amount at the rate of 12% per annum.
Jagbir Singh v. General Manager, Punjab Roadways, 1987 ACJ 15 (SC)	Another Supreme Court decision following the principle of allowing interest to claimants (consistent with Narcinva).	The court treated this decision as following Narcinva and used it to support granting interest at 12% p.a. to the claimants.
Devji v. Anwarkhan, 1989 ACJ 567 (MP)	High Court of Madhya Pradesh decision following the Supreme Court authorities allowing interest at 12% p.a.	Referred to as a post-Supreme Court decision following the same rule; the court relied on the line of authority to allow interest at 12% per annum.

Court's Reasoning and Analysis

The court's reasoning proceeds in distinct strands reflecting procedural, substantive and remedial questions raised by the parties:

On the insurer's challenge to the award:
The court observed that under section 96 of the Motor Vehicles Act awards of Motor Accidents Claims Tribunals can be challenged on specific grounds. In view of the statutory provisions the court explained that neither the quantum of compensation nor the merits of the award can be challenged by the insurer in the manner canvassed. The appellant insurer had filed an application under sections 151, 152 and Order VI, rule 17 CPC read with sections 96 and 110-A to 110-D of the Motor Vehicles Act to be allowed to challenge the award on all grounds open to the insured; no arguments were addressed in support of that procedural application and, critically, because the insurer had been a party before the Tribunal and had contested the claim, the application was held not tenable and was disallowed. Consequently the insurer's appeal (F.A.O No. 75 of 1981) was found to have no merit in substance.
On amendment/enhancement of claim and award exceeding claimed amount:
The claimants sought amendment of their petition to increase the claimed amount from Rs. 40,000 to Rs. 80,000 (application under Order 6, rule 17 read with section 151 CPC). The court explained the legal position that compensation awarded by a court or Tribunal is "just compensation" assessed on the basis of pleadings and evidence, not merely a capped figure dictated by the claimant's prayer. Therefore, even though the claim was for Rs. 40,000, the Tribunal's award of Rs. 48,000 could legitimately represent the just compensation after assessment of evidence. The claimants' application under Order 6, rule 17 was not pressed before the court and was rejected; the court upheld the view that awarding more than the claimed amount is permissible where the evidence supports such assessment (the court treated the awarded Rs. 48,000 as reasonable on the record).
On the claim for interest:
The court considered the claimants' principal remaining contention concerning payment of interest on the awarded amount from 12-11-1976 (date of filing of the claim petition) until actual payment. The insurer opposed payment of interest and relied on a Madhya Pradesh decision (Gulab Devi Sohaney). The court, however, found the insurer's reliance misplaced in view of the Supreme Court decision in Narcinva V. Kamat (1985 ACJ 397) and a later Supreme Court decision Jagbir Singh v. General Manager, Punjab Roadways (1987 ACJ 15), both of which permitted interest at 12% per annum to claimants in such cases. The High Court of Madhya Pradesh decision in Devji v. Anwarkhan (1989 ACJ 567) was cited as following the same line.

The court therefore concluded that the then-prevailing position of law supported granting interest at the rate of 12% per annum to the claimants. The court also rejected the submission that a claim for interest cannot be raised for the first time in appeal; it held there is no prohibition against raising such a contention at the appellate stage and that an appellate court may grant such relief even if the Tribunal had not done so, in the absence of any procedural bar.
Disposition and remedial directions:
Applying the above principles to the facts and evidence before it (including the eyewitness testimony and post-mortem report establishing the cause of death as crush injury and hemorrhagic shock), the court rejected F.A.O (MVA) No. 75 of 1981 (insurer's appeal) and allowed F.A.O (MVA) No. 77 of 1981 (claimants' appeal) only to the extent of granting interest on the awarded amount at 12% per annum from 12-11-1976 until deposit of the awarded amount for payment to the claimants. The court ordered that the amount of interest be deposited in the court within two months; failing that, further interest at 12% per annum would accrue on the interest amount after the expiry of that period. No costs were awarded.

Holding and Implications

Holding:

F.A.O (MVA) No. 75 of 1981 (Oriental Fire & Genl. Ins. Co. Ltd. v. Mast Ram) — The appeal by the insurer is rejected without costs.
F.A.O (MVA) No. 77 of 1981 (Mast Ram v. Hari Ram) — The claimants' appeal is allowed to the extent that interest at 12% per annum is granted on the awarded amount (Rs. 48,000) from 12-11-1976 until the amount was deposited before the Tribunal or court for payment to the claimants. The interest amount must be deposited in the court within two months, failing which further interest at 12% per annum will accrue on that amount after the two month period. No costs.

Implications:

Direct effect on the parties: The insurer's challenge to the Tribunal award was dismissed; the claimants receive the Tribunal award already made (Rs. 48,000) with interest at 12% per annum from the date of filing of the claim petition until deposit for payment, subject to the two‑month deposit direction and accrual of further interest if deposit is not made in time.
On precedent and general law: The court applied and followed existing Supreme Court authority (Narcinva V. Kamat and Jagbir Singh) and subsequent High Court decisions (Devji) to justify awarding interest at 12% per annum. The opinion does not purport to set a new legal principle beyond applying those authorities; it relies on them to resolve the question of interest. The court also clarified procedural limits on the insurer's ability to challenge awards under the Motor Vehicles Act and the scope for appellate courts to grant interest even if not awarded by the Tribunal.

Orders were made accordingly by the court.

Show all summary ...

Bhawani Singh, J.:— These appeals F.A.O (MVA) No. 75 of 1981, Oriental Fire & Genl. Ins. Co. Ltd. v. Mast Ram and F.A.O (MVA) No. 77 of 1981, Mast Ram v. Hari Ram, arise out of the same award of the Motor Accidents Claims Tribunal, Shimla, therefore, they are being taken up together for decision by a common judgment. By F.A.O (MVA) No. 75 of 1981 the award has been challenged by the Oriental Fire & Genl. Ins. Co. Ltd. on merits whereas by F.A.O (MVA) No. 77 of 1981, the same is challenged by the claimants praying for more compensation and award of interest from 12-11-1976, the date of the filing of the claim petition till the date of the realisation of the amount. Let brief facts of the case be stated thus.

2. The claimants are father and mother of deceased Prem Chand (18), a student of 9th Class. On September 26, 1976, many people were watching Ramleela during the night at Taradevi. Truck No. HIM 4495, driven by respondent No. 3, rashly and negligently, came on the wrong side of the road and struck against truck HRE 1991 which further gave a push to bus No. HIL 3793. The deceased was smashed in between truck No. HRE 1991 and bus No. HIL 3793 with the result that the deceased died of the injuries he sustained due to this accident. It is alleged that the accident occurred due to the negligent and rash driving of respondent No. 3 who was coming at a great speed under intoxication and on the wrong side of the road. The claim petition for Rs. 40,000/- was moved. The deceased was the only son of the claimants besides daughters. The claim was contested by the appellant and respondent Nos. 4 and 6. Respondent No. 3, the driver, and respondent No. 5 have been proceeded ex parte. The protest of respondent No. 4 was that the accident occurred on account of the wrong parking of truck No. HRE 1991 and bus HIL 3793 on the National Highway as they had blocked the free flow of all the vehicles during the night on the National Highway and the road was further narrowed by the people who had gathered there to witness Ramleela. The deceased was neither hit nor received injuries directly from the truck of the respondent. In fact, he received the same due to the fact that he was witnessing Ramleela from the roof of the bus from where he fell down and that truck No. HIM 4495 was neither being driven rashly or negligently nor under the influence of intoxication by the driver. The appellant took almost the same stand that was taken by the owner of the truck as narrated above.

3. The Himachal Pradesh Road Transport Corporation, respondent No. 6, although admitted the ownership of bus HIL 3793, but asserted that the bus was not parked on the wrong side of the road and that there was no contributory negligence on their part for the aforesaid accident. Rather it is stated that the accident took place due to the fast and negligent driving of the truck No. HIM 4495. The parties led their evidence.

4. Mast Ram, PW 1, is the father of the deceased. He states that the deceased was his only son. He was 18 years of age. He used to assist him in his agricultural operations after his schooling. He was the only person on whom he could have depended in his old age as the deceased was his only son. Due to his death, he suffered a great shock and mental torture. The deceased used to earn about Rs. 200/- per month. The deceased used to carry vegetables from the village to Shimla for sale and used to earn Rs. 5/- for the same. He used to collect wood from the jungle also.

5. Mohan Singh, PW 2, is an eye-witness to the occurrence. He states that the offending vehicle was coming at a very high speed. The driver blew no horn. Many people had collected to watch Ramleela. The place was well lighted. The driver of the truck in question did not reduce the speed. The other two vehicles were already parked on the left side of the road if one goes to Kalka from Shimla. The offending vehicle struck against the stationary truck which again hit the bus and the deceased was crushed in between these two vehicles which were already parked on the road. At the place of the accident, the road was very wide, about 40 feet in width and he had seen the vehicle coming from a distance of about 150 feet and it was being driven at a speed of about 80 km. p.h and that with the impact of the truck, the bus was pushed to a distance of about 15/20 feet.

6. Gopal Krishan, PW 3, also states that there was sufficient place for the passing of one vehicle on the road. The deceased was not standing on the roof of the bus but was sitting on a parapet.

7. Dr. Mansha Devi Dhawan. PW 4, performed the post-mortem examination of the dead body of the deceased on 27.9.1976 at 4 p.m and found the following injuries on his person:

“He was average built young man, and had the following injuries:

(i) Gross longitudinal lacerated wound almost extending from middle of right thigh to about 3″ below the right knee-joint and almost covering whole of the lateral aspect of the thigh with extensive lacerations and exposure of muscles and loss of skin. Size of the wound was 9″ × 4”. Bleeding was present. This injury was on the right leg.

(ii) Linear lacerated wound irregular with retracted skin on the posteromedial aspect of the left knee-joint region 5″ × 2″ × ½″ bleeding. This injury was on the left leg.

(iii) Clean lacerated wound over the left thigh lower 3rd on the anteromedial aspect 2″ × 1″ × ½″ bleeding plus plus. This injury is also on the left leg.

(iv) Clean lacerated wound over the chin 11/2″ × 1″ bleeding plus plus.

Examination of scalp, skull, vertebrae, membranes of the brain, brain and spinal cord, all normal. No injury. No evidence of any fracture.

Examination of the different viscera, i.e, pleurae, lungs, heart, larynx and trachea and ribs. They are all normal. No evidence of fracture.

Stomach, intestines, liver, spleen, kidneys and bladder all normal.

There was compound fracture lower end right femur.”

8. The doctor has opined that the cause of the death was crush injury of right thigh with severe hemorrhagic shock.

9. Manohar Lal, RW 1, produced by the respondents, has not said anything material against the claimants. His statement is of no help to the respondents; rather it indicates that 300/400 persons were seeing Ramleela at that time.

10. Ram Parkash, RW 2, also states that 400/500 persons witnessed Ramleela on that night. He further states that vehicles could cross easily where the truck and the bus were parked and that the road where the accident took place was straight and there was no curve and the width of the road was about 40 feet.

11. Now, coming to the issue of compensation, although the appellant has challenged the award of the Tribunal on merits, but it has not been specifically pointed out as to how and on what aspect the same suffers from any vice of illegality. Under section 96 of the Motor Vehicles Act, awards of Motor Accidents Claims Tribunal can be challenged on specific grounds and in view of these provisions, neither the quantum of compensation nor the merits of the award can be challenged by the insurer. The appellant has filed an application (CMP No. 2170 of 1981 in F.A.O No. 75 of 1981) under sections 151, 152 and Order VI, rule 17 of the Code of Civil Procedure read with sections 96 and 110-A to 110-D of the Motor Vehicles Act to allow to challenge the award on all grounds open to the insured. However, no arguments have been addressed on this aspect of the matter. Even otherwise, the same cannot be done by the appellant as it was a party before the Tribunal and it has duly contested the claim along with the insured. The application, aforesaid, is not tenable and is, therefore, disallowed. In addition to this, the claimants have filed an application (CMP No. 73 of 1989 in F.A.O No. 77 of 1981) under Order 6, rule 17 read with section 151 of the Code of Civil Procedure urging therein to allow amendment of the claim petition so as to enhance the claim amount from Rs. 40,000/- to Rs. 80,000/-. This appears to be the result of some anticipated objection by the appellant in F.A.O No. 75 of 1981 to the effect that the Motor Accidents Claims Tribunal has allowed compensation (Rs. 48,000/-) more than the one claimed by the claimants, which is not admissible. In opposition to this application, the owner of the vehicle (respondent No. 2) and insurer have, inter alia, asserted that the Tribunal has already assessed the compensation in accordance with law and facts of this case.

12. In my view, the compensation to be allowed by the court or the Tribunal is just compensation arrived at on the basis of the pleadings of the parties and evidence adduced in support of the same and not any compensation whatever claimed by a claimant. Therefore, in order to arrive at ‘just compensation’ in a particular case, the exact amount has to be assessed and established by the Tribunal or the court in a case before it. Hence it can be said that irrespective of the claim of Rs. 40,000/- in this case, the court has awarded Rs. 48,000/- which can be considered to be the just compensation in the case and hence it cannot be said that the awarded amount is unreasonable, arbitrary and against the evidence on record. The application under Order 6, rule 17 of the Code of Civil Procedure was not pressed by Mr. K.D Sood, learned counsel for the claimants, and the same is, therefore, rejected. The whole emphasis was directed towards the payment of interest on the awarded amount from the date of the claim application to the date of the actual payment.

13. Mr. K.D Sood submitted that the payment of interest has become a rule and the award deserves to be modified to this extent by this court. Mrs. Pratima Malhotra and Mr. Prem Goel, who appear for the insurance company and the owner of the vehicle, oppose the payment of interest to the claimants. Assistance from Gulab Devi Sohaney… v. Government Of Madhya Pradesh…, 1971 ACJ 214 (MP), was sought to support this submission. I am not impressed by this submission of the learned counsel in view of the decision of the Supreme Court in Narcinva V. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC), which decision was followed by the same court in Jagbir Singh v. General Manager, Punjab Roadways, 1987 ACJ 15 (SC). Both these judgments were followed by the High Court of Madhya Pradesh in Devji v. Anwarkhan, 1989 ACJ 567 (MP). In all these decisions, interest at the rate of 12 per cent per annum has been allowed to the claimants.

14. In view of the latest position of law on this aspect of the matter, the decision cited by Mrs. Pratima Malhotra, learned counsel for the insurance company, is not applicable. Equally untenable is the plea of the insurance company that the claim for interest cannot be allowed to be raised for the first time in appeal. There is no such prohibition anywhere against raising such a contention at the appellate stage. Even if such a plea was not raised before the Tribunal or the Tribunal had not allowed interest to a claimant, in the absence of such a plea having been raised, the appellate court could allow such a plea and grant relief accordingly.

15. No other submission and point was argued by any of the learned counsel appearing for the parties.

16. In view of the aforesaid examination of the matter, there is no merit in Appeal No. F.A.O (MVA) No. 75 of 1981 (Oriental Fire & Genl. Ins. Co. Ltd. v. Mast Ram) and the same is rejected without costs. F.A.O (MVA) No. 77 of 1981 (Mast Ram v. Hari Ram) is allowed to the extent that the claimants will be paid interest at the rate of 12 per cent per annum on the awarded amount from 12.11.1976 till the same was deposited before the Tribunal or court for payment to the claimants. The amount of interest be deposited in this court within a period of two months from today failing which further interest at the rate of 12 per cent per annum will accrue on this amount as well after the expiry of the period of two months, as aforesaid. No costs.

17. Orders accordingly.