B.N. Mahapatra, J.
1. This is an appeal under Section 173 of the Motor vehicles Act, 1988 (hereinafter referred to as the 'Act') filed by the Insurance Company, challenging the award dated 15.12.2001 passed by the Addl. District. Judge-cum-Motor Accident Claims Tribunal. II, (hereinafter referred to as the 'Tribunal') Titilagarh, in M.J.C. No. 125/58/15 of 1996-98-99/M.J.C. No. 126/59/16 of 96-98-99.
2. The background of the case, in nutshell, is as follows:
On 19.2.1996 while the deceased alongwith others was travelling in a Mini truck bearing Registration No. OR-03-6445 (Tata 407) from Titilagarh to his village Kholan, at about 7.00 A.M. the said Truck met with an accident, as a result of which the deceased sustained injuries on his person. The deceased was immediately taken to V.S.S. Medical College Hospital, Burla, where he succumbed to the injuries on 20.2.1996.
3. Respondent Nos. 1 and 2 who are the parents of the deceased filed claim petition before the Tribunal claiming compensation of Rs. 3,93,000/-. According to the claimants the deceased was working under one Daya Panigrahi and was earning Rs. 1,500/- per month.
4. The Insurance Company and the owner of the offending vehicle contested the case before the learned Tribunal.
The Insurance Company in its written statement while admitting the accident denied to pay any compensation on the ground of breach of condition of the policy. It took the plea that the offending vehicle was plying violating the terms and conditions 6f the Insurance Policy by carrying passengers in a Truck which was only meant for carrying goods being a goods vehicle and also registered accordingly with the registering authority. The further case of the Insurance Company was that where the goods vehicle is used for carrying passenger and faced an accident, Insurance Company is not liable to pay any compensation.
The owner of the vehicle in his written statement admitted the fact of accident. He claimed that no passenger was being carried in the offending Truck on payment of hire charges on the date of occurrence and there was no rash and negligent driving on the part of the driver of the said Truck. Since there was no violation of the condition of the Insurance Policy and the Policy was valid at the time of accident, the liability, if any, should be met by the Insurance Company. It was further pleaded that on the relevant date the vehicle was returning from Titilagarh to Kholan and in the site of accident when the driver saw a heavy vehicle i.e. a Truck was coming from the opposite direction in a very high speed, to avoid any head-on-collision, the driver of the Mini Truck was forced to swerve the vehicle to its left in order to avoid dashing against a group of people who were walking home from Shivaratri Mela. However, in spite of the efforts of the driver in avoiding any accident, the heavy vehicle, i.e. the Truck rubbed the Mini Truck while both were passing each other, as a result of which Mini Truck capsized on the people who were returning from Sivaratri Mela and the deceased who sustained injuries due to the said accident, died at V.S.S. Medical College Hospital, Burla.
5. The Tribunal after taking into consideration the evidence of P.W.2, Nabin Kumar Patel who was also moving in the said Truck along with the deceased; P.W.1, the father of the deceased; charge sheet submitted by the police against the driver; Ext. 5, the inquest report and Ext. 7, the post mortem report, held as follows:
(a) Khetra Ghivela succumbed to the injuries caused due the vehicular accident.
(b) The act of carrying passengers in the Truck in standing position itself was very serious where one can contemplate accident if certain brake was applied and the person who allowed carrying passengers in the goods vehicle was squarely responsible for such a negligent act and the negligence and rashness of the driver suggested not only mere negligence but gross-negligence which was unacceptable.
(c) The parents of the deceased who are the beneficiaries are entitled to compensation.
(d) The deceased being a labour class person the minimum wage of the deceased was taken at Rs. 40/- per day and considering 20 working days the monthly income was assessed at Rs. 800/-. Allowing 1/3rd of his income, i.e. Rs. 270/-towards his personal expenses, Rs. 530/- was taken as contribution towards his family and accordingly his contribution towards his family per annum was worked out at Rs. 6,360/-. Applying the theory of multiplier 17, the compensation amount was fixed at Rs. 1,08,000/- with pendente lite interest @ 6% and it was further directed that in default of payment of the said amount within two months from the date of receipt of the order the said amount shah carry interest @ 9%.
(e) Following a decision of the Supreme Court in the case of New India Assurance Co. Shimla v. Kamla and Ors. reported in : [2001]2SCR797 , the Insurance Company was directed to pay the above compensation amount to the claimants by end of March, 2002 with pendente lite interest at the rate of 6% per annum. It also directed that in default of payment of the said amount within two months from the date of the order, it shall carry future interest at the rate of 9% per annum. The Insurance Company was granted liberty to recover the said amount from the owner of the vehicle by virtue of the conditions of contract.
6. Being aggrieved with the aforesaid order, the Insurance Company has filed this present appeal.
7. Learned counsel appearing for the Insurance Company vehemently argued that the Tribunal having found that the vehicle was carrying passengers in violation of the terms and conditions of the insurance policy it should have exempted the Insurance Company from payment of compensation and the owner of the said vehicle should have been directed to pay the compensation. He further submitted that in case this Court directs the insurance Company to pay the compensation amount to the claimants, the offending vehicle should be attached as security before release of the compensation amount. In support of his contention, he relied on the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. v. Shri Nanjappan and Ors. reported in 2004 (2) TAC 12 (SC). He also assailed the quantum of compensation assessed by the Tribunal as excessive and arbitrary.
8. After hearing the rival contentions of both parties and going through the impugned judgment, this Court does not find any infirmity or illegality in the order passed by the learned Tribunal except the rate of interest directed to be paid on the awarded amount.
9. In the case of Oriental Insurance Co. Ltd. v. Shri Nanjappan and Ors. (supra) Hon'ble Apex Court has protected the interest of the claimants by way of directing the Insurance Company to pay the awarded amount to the claimants. In the said judgment the interest of the Insurance Company is also protected for realization of the awarded amount paid by the Insurance Company from the owner of the vehicle.
10. In view of the above, the appellant-Insurance Company is directed to deposit the compensation amount of Rs. 1,08,0007-as awarded by the learned Tribunal which appears to be just and proper in the present case within a period of six weeks from the date of the judgment along with interest at the rate of 7% per annum from the date of filing of the claim application before the learned Tribunal till the date of the claim application before the learned Tribunal till the date of deposit. After the aforesaid amount is deposited, the said revised amount shall be disbursed in favour of the claimant-respondents in the manner as directed by the learned Tribunal in its award.
11. The next question relates to grant of right of recovery of the awarded amount that shall be paid by Insurance Company from the owner of vehicle. In this context, it would be useful to refer the order of this Court dated 20.01.2005 passed in the case of Divisional Manager, Oriental Insurance Co. v. Sri Rama Sahu and Ors. in MACA No. 163 of 2003. The relevant portion of said Order is quoted herein:. I am therefore of the view that the insurance company should be permitted to recover the award amount from the insured in terms of the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. v. Nanjappan and Ors. reported in 2004 AIR SCW 952 and in the case of National Insurance Co. Ltd. v. Challa Bharathamma and Ors. reported in 2004 AIR SCW 5301.
XX XX XXIt is further directed that the appellant shall have right to recover the award amount from the insured in terms of the judgment of the Apex Court in the above two cases. It is further directed that in the event the insured fails to furnish security and attachment of the property is not done within a period of four months from the date of receipt of records from this Court by the Tribunal, the award amount shall be released in favour of the claimants-respondents, but the appellant shall be permitted to proceed with recovery of said amount from the insured in the proceeding before the Tribunal....
12. Hence, for the purpose of recovery of the amount payable by the Insurance Company to the claimants from owner of the vehicle, the Insurance Company shall not be required to file a suit in view of the clear finding of the learned Tribunal that there was violation of policy condition. It may initiate a proceeding before the concerned executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue was decided against the owner and in favour of the insurer. The Insurance Company may move the Tribunal for demanding necessary security from the vehicle Owner for the amount payable by it to the claimants in which event the learned Tribunal shall pass necessary orders in terms of the judgment of the Hon'ble Apex Court in the case of Oriental Insurance Company (supra). It is however made clear that in the event the insured fails to furnish security and attachment of the property is not done within a period of four months from the date of receipt of the record from this Court by the Tribunal, the award amount shall be released in favour of the claimant-respondent immediately thereafter. However, this will not prevent the Insurance Company to proceed on the recovery of the award amount from the insured in the proceeding before the Tribunal.
13. It appears that the Insurance Company has deposited the statutory amount of Rs. 25,000/- in this Court which has been kept in fixed deposit. Hence, the Insurance Company is entitled to get back the said amount with interest accrued thereon on production of a receipt before the Registrar (Judicial) of the Court showing deposit of the award amount alongwith interest as directed by this Court before the Tribunal.
With the aforesaid direction, the appeal is disposed of. There will be no order as to costs.