Divisional Manager, the New India Assurance Co. Ltd. Vs. Jyotirmayee @ Ranu Rout and ors. - Court Judgment

Excerpt:
motor vehicles - compensation - interest rate - section 110-c of the old act and section 171 of the new act - respondent met with an accident and sustained injury - respondents claimed compensation before tribunal - tribunal awarded compensation with interest - against said order insurer filed appeal with regard to conditional rate of interest - dismissed - hence, present letter patent appeal - held, relying on decision of apex court in case of the oriental insurance company ltd. v. harapriya nayak and ors court opined that once discretion has been exercised by tribunal to award simple interest on amount of compensation to be awarded at particular rate and from particular date there is no scope for retrospective enhancement for default in payment of compensation and no express or implied power can be called out from section 110-c of old act and section 171 of new act - such a direction in award for retrospective enhancement of interest for default in payment of compensation together with interest payable thereon virtually amounts to imposition of penalty, which is not envisaged and prescribed' - in present case there is no scope for retrospective enhancement of interest for default in payment of compensation - appeal partly allowed - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in this regard it is well settled position of law that if there was any breach of the policy condition it is always open to the insurance company to release the amount from the insured in accordance with law and the claimants should not suffer. with effect from 28.7.1997 and further has directed that the amount cannot be withdrawn by the injured even during her life time which is bad in law. in view of the fact that, no penal interest could be imposed on the simple interest of 9% already imposed till the date of payment and further that amount of compensation very well belongs to the injured and therefore, the tribunal has no jurisdiction to restrict release of the amount of compensation paid by the insurance company after her attaining the age of majority.i.m. quddusi, j.1. heard learned counsel for the parties. although this letters patent appeal was listed for orders, with the consent of the learned counsel for the parties, it was taken up for final hearing and is being disposed of by this judgment.2. the judgment and order dated 10.08.2001 passed by the learned single judge in m.a. no. 203/2000 dismissing the appeal subject to the observation and direction that a sum of rs. 25, 000/- which was kept-in fixed deposit, be transmitted to the claims tribunal with accrued interest and the insurance company was to deposit the balance amount before the claims tribunal is impugned in this appeal. by way of an interim order in this appeal this court has directed that out of the compensation awarded an amount of rs. 10, 000/- shall be paid to the injured and the balance amount of rs. 1, 50,000/- together with the interest as directed by the tribunal be deposited with the registrar (judl.) of this court within two weeks and upon deposit of such amount of rs. 1, 50,000/- this court shall invest the said amount in a fixed deposit for a period of one year to be renewed from time to time till disposal of the lpa.3. the brief facts of the case are that an application under section 166 of the motor vehicle act was filed before the motor accident claims tribunal, cuttack on behalf of injured jotirmayee alias ranu rout (minor), aged about seven years by her parents with the allegation that on 16.6.1997 at about 2.30 p.m. while the injured was standing on the left side of n.h. 5, at bandal chhak facing cuttack side waiting for a bus, at that time a truck bearing registration no. or-05-e-0782 coming from chhatia side in high speed without blowing horn suddenly turned to its extreme right in order to overtake another truck and coming on the earthen plank of the road dashed against the injured from her front side for which she sustained bleeding injuries on her person and her left thigh was completely fractured into pieces. she was taken to s.c.b. medical college and hospital, cuttack for treatment. as her injury could not be cured even after careful expensive treatment, on the advice of the doctor her left leg above the knee was amputated. the application claiming compensation was registered as m. v. misc. case no. 608 of 1997 before the m.a.c.t. and was disposed of by judgment dated 25.9.1999 awarding a compensation of rs. 1,60,000/-with direction to the insurance company to pay the same to the injured through her father and mother within one month with interest at the rate of 9% per annum from the date of application i.e., 28.7.1997, failing which the petitioners would be at liberty to realize the same along with interest at the rate of 12% per annum till realization, from the instant appellant, i.e., new india assurance company ltd. it-was further directed that the amount of compensation would be kept in fixed deposit in any nationalized bank in the name of the injured till the end of her life and the monthly accrued interest be paid to her through parents till her attaining majority and thereafter, the same would be paid to the injured herself. besides, a cost of rs. 500/- was awarded against the appellant insurance company. it was further directed that neither the parents nor the injured herself after attaining the age of majority, can withdraw the said fixed deposit of rs. 1, 60,000 /- till the end of the life of the injured.4. being aggrieved, the insurance company, which is the instant appellant filed m.a. no. 203 of 2000 in this court. the said m.a. was dismissed by the learned single judge, vide impugned judgment dated 10.8.2001. feeling aggrieved, the instant letters patent appeal has been filed.5. having heard the learned counsel for the parties, we have come to the conclusion that the award of the mact suffers from some legal infirmities and the same is liable to be modified. however, since the learned single judge having dismissed the said appeal, we consider it as a fit case where this court should interfere in this lpa. it has been urged that the driver of the concerned vehicle did not have any driving licence at all and due to this reason the insurance company is not liable to pay any compensation. in this regard it is well settled position of law that if there was any breach of the policy condition it is always open to the insurance company to release the amount from the insured in accordance with law and the claimants should not suffer. (see : [2001]2scr797 (new india assurance co., shimla v. kamla and ors.) : [2003]2scr495 (united insurance co. ltd. v. lehru and ors.). therefore, the submission of the appellant is not sustainable in the eye of law and the learned single judge has rightly held that the insurance company might get reimbursement of the amount of compensation paid by it from insured (owner of the vehicle) in case of breach of policy condition.6. however, we have observed that the learned motor accident claims tribunal has imposed a further penal interest of 12% per annum apart from awarding interest of 9% on the amount of compensation i.e., rs. 1, 60,000/- from the date of application i.e. with effect from 28.7.1997 and further has directed that the amount cannot be withdrawn by the injured even during her life time which is bad in law. in view of the fact that, no penal interest could be imposed on the simple interest of 9% already imposed till the date of payment and further that amount of compensation very well belongs to the injured and therefore, the tribunal has no jurisdiction to restrict release of the amount of compensation paid by the insurance company after her attaining the age of majority.7. a division bench of this court has held in the case of the oriental insurance company ltd. v. harapriya nayak and ors. reported in 1994(1) olr 88 'once the discretion has been exercised by the tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date there is no scope for retrospective enhancement for default in payment of compensation and no express or implied power can be called out from section 110-c of the old act and section 171 of the new act. such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty, which is not envisaged and prescribed.' it is a claim of compensation made by an injured person and once a claim has been allowed and some compensation has been awarded that compensation always relates to the injured and the injured has right to get the same. therefore, the direction that during her life time the injured cannot withdraw the same from bank is against the spirit of section 168 of the motor vehicles act which provides that the claims tribunal may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the claims tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be. if during lifetime of the insurer he would not be able to get compensation the whole purpose of the act providing compensation would be frustrated.8. in the above facts and circumstances, this appeal is allowed in part. the impugned judgment passed by the learned single judge is set-aside to the above extent. the award of the motor accident claims tribunal is modified to the extent that the appellant shall deposit the amount of compensation as awarded by the claims tribunal along with interest at the rate of 9% after deducting rs. 10, 000/- which has been allowed to be withdrawn by the injured through her parents by the concerned motor accident claims tribunal and on deposit of the balance amount of compensation, i.e., rs. 1, 50,000/-, the same shall be kept in a fixed deposit account in any nationalized bank and the same shall be renewed from time to time till the injured attains majority. it is open to the injured to withdraw the interest amount through her parents.9. it is mentioned that in compliance with the interim order dated 10.8.2001 passed in this appeal and order passed in m.a. no. 203 of 2000 an amount of rs. 1, 50,000/- has been kept in fixed deposit in the corporation bank, orissa state bar council branch, cuttack. the appellant is permitted to withdraw the same and deposit the entire amount of compensation along with interest at the rate of 9% p.a. from the date of application, i.e., 28.7.1997 in the tribunal.10. the a. h. o. is accordingly disposed of..a.k. samantaray, j.11. i agree