NEW INDIA ASSURANCE COMPANY LIMITED Vs. NIMESHBHAI TIWARI

JUDGEMENT

(1.) Heard learned advocate Ms. Masumi Nanavati for learned advocate Mr. Vibhuti Nanavati for the appellant - insurance company. Perused the report, so also Office Note dated 17.01.2019 with communication dated 16.01.2019 by the Principal District Judge, Surat.

(2.) Two major issues are raised in this appeal i.e. liability of the insurance company to pay interest submitting that it would be started only from the date, when claimant has submitted Court fee stamp, contending that in a claim petition of the year 2004, the claimant has paid Court fee stamp in the year 2008 and, therefore, the insurance company is not liable to pay interest for all such period. In support of such submission, learned advocate for the appellant is relaying upon the decision of the Co -ordinate bench of this Court in case of New India Assurance Company Limited vs. David Nadar @ Arun Nadar reported as 2016 JX (Guj) 1546 i.e. digital law general only. It seems that in such decision referred by the learned advocate, the Co- Ordinate bench of this Court has held that, if the insurance company is not joined at the earliest and if Court fee stamp is not paid in time, insurance company is not liable to pay interest on the amount of compensation and, thereby in such cited case when claim petition remained dormant for 15 years and, therefore, it was held that insurance company is not liable to pay interest for all such period. Thereby the Co - Ordinate bench has reduced the liability of the insurance company for payment of interest from the year 2009 only in claim petition which was filed in the year 1994. However, I do not find any substance in such submission for two simple reasons; first the liability of the insurance company is absolute to reimburse the amount of compensation paid by the driver and owner by indemnifying them and they are entitled to have simply notice of filing of any such claim petition against driver and owner by the injured victim. Therefore, on one hand joining insurance company is not mandatory and statutory requirement at all and thus even if insurance company is joined at belated stage, it cannot claim that they are not liable to pay interest on compensation. Secondly the prescribed format of claim petition specifically confirms that in para 9 of the prescribed format though the claimant has to disclose the names of driver, owner and insurer of the vehicle only, if known to him because in such litigation, there is no nexus between claimant and driver, owner and insurer and, therefore, in majority of the cases, victims may not be aware about factual details of either of them unless it is properly available on the record of investigation. For the purpose, in Motor Vehicles Act, 1988, there is statutory provision that investigating agency shall provide the requisite information both to the Tribunal, so also to the insured and insurer in prescribed Form No.54. Non compliance of such provision by the investigating agency being State Government itself would not result into restrictions upon claimant's right to get compensation on time or to get interest on amount of compensation if at belated stage. Therefore, it becomes clear that when claimants are not aware about actual details regarding driver, owner and insurer and thereby if claimant could not disclose such information in claim petition, it is the duty of the Tribunal to call for Form No.54 and to join driver, owner and insurer as respondent and to issue notice upon them. The provision of Sub -Rule (2) of Rule 1 of Order X of the Code of Civil Procedure also empowers the Court to add any person as litigant at any stage of proceeding even only for the reason that presence of such person is sufficient for effective adjudication of the claim The Statute also specifically confirms that after the Act of 1988, injured victim is also not required to file formal application but Tribunal can consider Form No.54 as formal application by the victim and to award just and reasonable compensation, which is to be paid initially by driver and owner and liability of the insurance company is only to indemnify the owner by depositing the amount awarded in favour of the claimant by the competent authority i.e. Tribunal in such cases under the Act.

(3.) Though it may not be appreciated but it is also hard fact that the delay in proceeding with claim petitions is not the sole reason by the claimant himself but in many tribunals because of work load returnable dates are given after a year in first notice and thereafter when driver and owner does not disclose the the name of insurance company in time, there may be some more delay in joining such insurance company. But it cannot be said that insurance company is not liable to pay interest on compensation from the date of application till its realization as done by the Tribunal in impugned award. It would be appropriate to record the decision in case of S.L. Sachdev vs. State of Gujarat reported in 1995 (1) GLR 629.