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2025 DAILYLAW 4063 (HP)

National Insurance Company Limited v. Sunil Kumar

2025-12-09

Sushil Kukreja

body2025
JUDGMENT : SUSHIL KUKREJA, J. 1. The instant appeal is maintained by the appellant-Oriental Insurance Company under Section 173 of the Motor Vehicles Act (for short “M.V. Act”), against award dated 30.07.2022, passed by the learned Motor Accident Claims Tribunal-IV, Kangra at Dharamshala, District Kangra, H.P., in MACT No.78-P/II/2013/08, with a prayer to quash and set aside the impugned award. 2. Briefly stated the facts of the case, giving rise to the present appeal, are that on 18.11.2017, the petitioner was driving his Motorcycle bearing registration No.HP-37A-7226 and was going from his native village Darati (Nagri) to Palampur and at about 3:00 PM, when he reached near Chimbal Haar, a Maruti Zen Estilo bearing registration No.JK-02-AE-6022, being driven by respondent No.1 in a rash and negligent manner, came from Palampur side, turned towards its wrong side and hit against the Motorcycle of the petitioner. As a result of which, the petitioner fell down on the road and suffered multiple injuries on his person. He was taken to Civil Hospital, Palampur, from where, he was referred to Dr. RPGMC, Tanda and remained admitted there w.e.f. 18.11.2007 to 29.11.2007. Thereafter, he also remained as an outdoor patient because he had suffered compound fracture of right leg and other injuries and had spent Rs.26,000/- on medicines. He further alleged that he was serving as Sepoy in Central Reserve Police Force (CRPF). Due to the injuries and permanent disability suffered by him is likely to cause irreparable loss and would affect his career. Hence, he prayed for grant of compensation to the tune of Rs.6,00,000/- alongwith interest @ 10% per annum. 3. Respondent No.1/owner-cum-driver, in his reply, admitted the accident in question, however, he denied the fact that the accident had caused due to rash and negligent driving of Zen Estilo Car. It was also denied that the injuries suffered by the petitioner would affect his career. It was averred that the petitioner was driving his motorcycle in a very rash and negligent manner and one another person was also sitting on the motorcycle and due to rash and negligent driving of the petitioner, his motorcycle of the petitioner struck against the car. It was also submitted that the petitioner alongwith other person was dancing on the motorcycle while driving on the road. 4. It was also submitted that the petitioner alongwith other person was dancing on the motorcycle while driving on the road. 4. In the reply filed by respondent No.2-Insurance Company, preliminary objections regarding not having a valid and effective driving licence by the driver of Maruti Zen Estilo at the time of accident, the vehicle not insured with it and that the petition was bad for non-joinder of necessary party. On merits, it was averred that a false report was lodged against replying respondent to get a frivolous claim. It was further averred that the petitioner himself was negligent in driving his motorcycle at the time of accident. The petitioner had not suffered any injuries and compound fracture of right leg in the accident. It was also averred that the petitioner had reimbursed the medical expenses from his department. It was denied that the disability suffered by the petitioner would cause irreparable loss to him and would also affect his career. 5. On the pleadings of the parties, the learned Tribunal below framed the following issues on 22.03.2009:- “1. Whether the petitioner suffered injury on account of rash and negligent driving by respondent on 18.11.2007? ….OPP 2. If issue No.1 is proved, to what compensation the petitioner is entitled and from whom? OPP 3. Whether the accident was in the result of pillion rider of motorcycle No.HP-37A-7226, if so, its effect? OPR 4. Whether the respondent NO.1 has no valid and effective driving license at the time of accident? OPR 5. Whether the petition is bad for non-joinder, owner and insurer of motorcycle No. HP37A-7226? OPR. 6. Whether the offending vehicle was being driving without valid Registration Certificate, Route Permit, Fitness Certificate, Insurance and driving licence at the time of accident? OPR 7. Relief.” 6. The parties led their evidence and after hearing the learned counsel for the parties, the claim petition was allowed and the petitioner was held entitled for compensation of Rs.2,21,886/- alongwith interest, which was to be paid by respondent No.2-Insurance Company, 6.1 Feeling aggrieved/dissatisfied, the appellant/ insurance company preferred the instant appeal against award dated 30.07.2022 passed by the learned Tribunal below, with a prayer to quash and set aside the impugned award. 7. I have heard the learned counsel for the parties and also carefully examined the entire record. 8. 7. I have heard the learned counsel for the parties and also carefully examined the entire record. 8. Learned counsel for the appellant/Insurance Company contended that the impugned award is based on surmises and conjectures as the learned Tribunal below has erred in awarding interest @ 7.5 % on the compensation amount from the date of claim petition till realization. He further contended that the claim petition was dismissed in default before the learned Tribunal below on 12.08.2014 and restored on 22.04.2022, therefore, the appellant/insurance company is not liable to pay interest for the period the claim petition remained dismissed. 9. On the other hand, learned counsel for respondent No.1/petitioner contended that on 12.08.2014 when the petition was dismissed in default, there was no negligence on the part of the petitioner as the case was suo-moto transferred to MACT, Palampur. He further contended that the restoration revives the claim ab initio, therefore, the interest must flow from the original filing date of the petition, uninterruptedly and the petitioner cannot be deprived of the interest from 12.08.2014 till 22.04.2022. 10. Perusal of the record reveals that respondent No.1/petitioner had filed the claim petition before the learned Motor Accident Claims Tribunal-I, Kangra at Dharamshala on 12.05.2008, which was assigned to Motor Accident Claims Tribunal-III, Kangra at Dharamshala and on 15.10.2013, the case was received by way of transfer at Motor Accident Claims Tribunal-IV, Kangra at Dharamshala, camp at Palampur. Notices were issued to the parties to appear before National Lok Adalat for conciliation on 23.11.2013 at Dharamshala. However, the conciliation could not be effected due to non-appearance of the parties and the case was sent back to the circuit Court at Palampur. Thereafter, notices were issued to the parties to appear before the Motor Accident Claims Tribunal-IV, Kangra at Dharamshala, camp at Palampur on 12.08.2014 on which date the petition was dismissed in default due to the non-appearance of the petitioner or his counsel. For ready reference, the order dated 12.08.2014 is reproduced herein as under:- “Called several times repeatedly since morning, but the petitioner did not appear despite due notice. It is 11:30 A.M. Be awaited and called again after respite. Called again after respite. Called again after respite at 3:55 P.M., but the petitioner did not appear, as such, the petition in hand is dismissed in default for want of prosecution. It is 11:30 A.M. Be awaited and called again after respite. Called again after respite. Called again after respite at 3:55 P.M., but the petitioner did not appear, as such, the petition in hand is dismissed in default for want of prosecution. File after its due completion be consigned to the record room.” 11. After a period of more than four months, an application under Order 9, Rule 4 of CPC was filed for restoration of the claim petition on 17.12.2014, before the learned Motor Accident Claims Tribunal, Kangra at Dharamshala, HP, which was supported with the affidavit of the applicant-petitioner. In the aforesaid application, the petitioner had admitted that when the case was transferred, notice of such transfer was sent at his home address and was received by his family members. The relevant portion of the application is reproduced as under:- “That when the aforesaid case was transferred to this Hon'ble Court, the petitioner was sent a notice of such transfer on his home address and was received by his family members. On information given to the applicant/petitioner, he applied for the leave but the same was refused on account of the service exigencies as the Hon'ble President of India was visiting J&K during those days and there was high-alert in the area on account of the threats by the anti state elements and therefore the applicant/petitioner did not get the leave.” 12. Thus, from the contents of the application, it has become clear that the notice was duly sent to the petitioner to appear before the learned Motor Accident Claims Tribunal-IV, Kangra at Dharamshala, Camp at Palampur on 12.08.2014, but still he did not choose either to appear personally or through his counsel and the petition was dismissed in default on 12.08.2014. 13. Perusal of the order-sheets reveals that after 18.12.2014, the application remained pending for the service of respondent No.2/Insurance Company with effect from 12.08.2016 till 10.01.2022 as steps for the service of respondent No.2 were not taken by the petitioner. It was only on 10.01.2022 that the notice issued to the Insurance Company was received back served and Mr. Adarsh Sood, Advocate, appeared and had filed Memo of Appearance on behalf of the Insurance Company and thereafter on 12.04.2022, the petition was ordered to be restored. It was only on 10.01.2022 that the notice issued to the Insurance Company was received back served and Mr. Adarsh Sood, Advocate, appeared and had filed Memo of Appearance on behalf of the Insurance Company and thereafter on 12.04.2022, the petition was ordered to be restored. Thus, it is clear that due to the sheer negligence/careless attitude on the part of the petitioner himself, the petition was firstly dismissed in default on 12.08.2014. Thereafter the application for restoration remained pending for about eight years just because of the fault/negligence of the petitioner and the petition was ultimately restored on 12.04.2022. 14. Now, the question which arises for consideration before this Court is as to whether, because of the fault/negligence on the part of the petitioner, the appellants/Insurance Company can be fastened with liability to pay interest for the period, i.e. w.e.f 12.08.2014 to 12.04.2022 when the application for restoration was pending and the petition remained dismissed during the above period. 15. At this stage, it would be relevant to reproduce Section 171 of M.V. Act, which reads as under:- “171. Award of interest where any claim is allowed. - Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.” 16. From the perusal of the aforesaid provision, it is clear that it empowers the Tribunal to direct in addition to the amount of compensation, simple interest at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. From the perusal of this section, it is clear that discretion has been given to the Tribunal to award interest at such rate from the date of the petition as it may specify in the order. However, this discretion has to be exercised reasonably and not arbitrarily. 17. In the instant case, the delay in deciding the petition before the Tribunal below was just because of the negligence and careless attitude on the part of the petitioner. As observed earlier, the petition was dismissed in default on 12.08.2014 and the application for restoration remained pending adjudication till 12.04.2022. 17. In the instant case, the delay in deciding the petition before the Tribunal below was just because of the negligence and careless attitude on the part of the petitioner. As observed earlier, the petition was dismissed in default on 12.08.2014 and the application for restoration remained pending adjudication till 12.04.2022. In the opinion of this court, granting interest to a party, who is guilty of protracting the litigation, would be encouraging the parties to indulge in unnecessarily delaying the litigation. It is well settled that a person cannot be permitted to take the benefit of his own wrong. In the instant case, determination of compensation by the Tribunal was delayed by more than fourteen years due to the fact that the claim petition was dismissed in default on 12.08.2014 and the application for restoration remained pending adjudication till 12.04.2022 Therefore, due to the carelessness on the part of the petitioner himself, the interest for the intermediate period, i.e. w.e.f. 12.08.2014 till 12.04.2022, cannot be awarded as the petitioner cannot be given the benefit of his own wrong. The learned Tribunal has failed to appreciate this aspect of the mater and awarded interest from the date of filing of the petition till realization. Hence, the impugned award dated 30.07.2022 deserves to be modified to that extent. 18. Therefore, without disturbing the findings of the learned Tribunal below on merits of the case and also without interfering in its findings with respect to the amount of compensation and rate of interest, it is ordered that the compensation of Rs.2,21,886/- awarded shall be payable with interest at the rate of 7.5% per annum from the date of filing of claim petition till its realization minus the interest for the period w.e.f. 12.08.2014 till 12.04.2022. The remaining terms of the impugned award shall remain the same. Accordingly, the instant appeal is disposed of in the above terms, so also the pending application(s), if any.