NATIONAL INSURANCE COMPANY LTD. Vs. PARBATI PAL (DATTA)

JUDGEMENT

(1.) Heard Mr. A.K. Deb, learned counsel appearing for the appellant-National Insurance Company Ltd. as well as Mr. Samarjit Bhattacharjee, learned counsel appearing for the respondent No. 5, the owner of the offending vehicle bearing registration No. AS-01-Y-7393.

(2.) At the outset, Mr. Deb, learned counsel appearing for the appellant has submitted that the vehicle at the time of accident was being plied in gross breach of conditions of the insurance policy, inasmuch as it is found from the evidence that when the bus was permitted to carry 39 passengers, at the time of accident, the said bus carried 55 passengers. According to Mr. Deb, learned counsel, the insurance company cannot be saddled with the liability to indemnify the damages that occurred from the said accident on 8/8/2012, when the said vehicle met with the accident at a place called Tanseng, Sonarpur under Kleriahart Police Station at NH-44 due to rash and negligent driving of the vehicle. Mr. Deb, learned counsel has further submitted that the tribunal does not hold any authority to give penal rate of interest retrospectively within its authority under Sec. 171 of the Motor Vehicles Act, but by the judgment and award dtd. 26/10/2017 delivered in Title Suit (MAC) No. 465 of 2013 by the Motor Accident Claims Tribunal, No. 1, Agartala, West Tripura, which is under challenge in this appeal, the tribunal has provided penal interest @8%, whereas the interest has been determined at 6% per annum from date of filing of the claim petition i.e. 18/12/2013. Mr. Deb, learned counsel has fairly submitted that the issue of the liability of the insurer has been decided by this court in National Insurance Company Ltd. v. Smt. Bina Shil and Ors. [the judgment and order dtd. 14/5/2018 delivered in MAC. App. No. 70 of 2014] and in National Insurance Company Ltd. v. Namita Saha and Ors. [the judgment and order dtd. 16/5/2017 delivered in series of cases including MAC App. No. 54 of 2014].

(3.) Mr. S. Bhattacharjee, learned counsel appearing for the respondent No. 5 did not dispute that position and submitted that the insurance company cannot shirk off the liability as the liability basically is a third party liability, covered by Sec. 147 of the Motor Vehicles Act.