ORIENTAL INSURANCE CO LTD Vs. DADU KHENGAR KOLI

JUDGEMENT

(1.) 1. Heard learned advocate Mr. K. K. Nair for appellant Oriental Insurance Co. Ltd. and Joravarsinh, S/o Nargalal original opponent. Respondent No. 2 has been deleted from array of parties. Learned advocate Mr. Mehul Shah for respondents claimants in each appeal.

(2.) THE appellant Insurance Co. has challenged common award passed by MAC Tribunal, Kutch at Bhuj, Exh. 85, decided on 22. 1. 1996 in MACP Nos. 15/87, 66/87, 67/87, 70/97 and 71/87. The claims Tribunal has awarded Rs. 97,800/- in MACP No. 65/87, Rs. 2,02,000/- in MACP No. 66/87, Rs. 1,38,000/- in MACP No. 67/87, Rs. 2,88,000/- in MACP No. 70/87 and Rs. 2,00,000/- in MACP No. 71/87 with 15% interest from date of filing of claim petition till date of realization.

(3.) LEARNED advocate Mr. Nair submitted that on 7. 10. 1986 at about 7. 00 p. m. , Popat Ruda Koli along with his companion labourers were proceeding in his bullock cart towards their village Maitresi, when truck bearing No. HYD 1938 came from behind and hit the cart as a result of which Popat Ruda Koli and the bullocks died on the spot and his companions Dadu Khengar, Monghibai Khengar, Laxmibhai and Gulabai Hima sustained serious injuries. Therefore, various claim petitions have been filed by claimants initially against only driver of truck opponent No. 1. Thereafter, after a period of 9 years, on 27. 7. 1995 owner of truck was joined as a party and that Gulabbai claimant of MACP No. 71/87 died on 15. 10. 1995. Thereafter, her parents were brought on record as heirs and legal representatives. The respondent Nos. 1 and 2 did not appear and contest claim petition and it was only insurance company which contested the petition. He submitted that various amounts of compensation were awarded by claims Tribunal. So far as amounts awarded are concerned, the contention of company is that Tribunal has erred in taking prospective income relying on decision of Apex Court in Kerala State Road Transport Corporation v. Susamma Thomas and ors, reported in 1994 ACJ 1. He further submitted that if said decision is perused, it is in terms held that the deceased for whose death the said petition was filed, was in a regular employment and on a scale of pay. Thereafter, the Apex Court in a number of decisions have held that to consider prospective income there must be cogent legal evidence adduced by claimants. He relied upon recent decision of Apex Court in case of Sarla Varma v. Delhi Transport Corporation and Anr. reported in 2009 6 SCC 121. He further submitted that in case of Sarla Varma (supra) the Apex Court has in terms observed that in cases like the present one, prospective income cannot be considered. He vehemently submitted that Insurance Co. was joined almost after 9 years i. e. on 27. 7. 95 whereas accident in question was on 7. 10. 86. Therefore, claim petition against Insurance Co. is clearly barred by limitation. He also relied upon provisions of Order 1 Rule 10 (5) of CPC which reads as under : " (5) Subject to the provisions of the Indian Limitation Act,1877 (15 of 187), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. " 3. 1 Thus, having joined as party opponent on 27. 7. 95, the summons must have been served on opponent insurance company subsequent to that date and therefore, having regard to the limitation prescribed for filing claim petitions prior to 1994, amendment in the MV act, the claim against the insurance company is clearly barred by limitation. However, he also made a statement without prejudice to his above contentions that assuming though not admitted that claim against Insurance Co. is not barred by limitation, even though awarded 15% interest which is highly excessive and it ought to have been 6%. The substantive justice requires that while awarding interest, the claims Tribunal and the Courts cannot be oblivious of the fact that claim itself was barred by limitation as the Insurance Co. was joined after almost 9 years and the claims Tribunal has without any basis taken prospective income while awarding compensation. He also submitted that in case of Susamma Thomas (supra), in respect of accident which occurred in 1994, rate of interest awarded @ 12% and in case of Kaushnuma Begam v. New India Assurance Co. Ltd. reported in 42 (1) GLR 593 (SC), in respect of accident of 1986, interest awarded is @ 9%. He also relied upon a decision of this Court in case of Maniben S. Pandya v. Shashikant P. Shrigalor reported in 45 (3) GLR 1878 wherein the Division Bench of this Court in respect of an accident which took place on 27. 2. 87 awarded interest @ 9% p. a. Upto 31. 12. 2000 and thereafter, @ 6%. In case of Sarla Varma (supra), the Apex Court has awarded interest @ 6% in case of accident occurred on 18. 4. 1988 and therefore, he submitted that these are the binding decisions wherein question of interest has been examined by Apex Court as well as this Court and therefore, award passed by claims Tribunal in facts of present case is on higher side which is required to be reduced to 6% and also submitted that liability of interest to be paid by Insurance Co. must have to be started w. e. f. 27. 7. 1995 and not from date of claim petition.