Orissa High Court
The Oriental Insurance Co. Ltd vs Baburam Mohanta And Others on 6 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.370 of 2006 & MACA No.561 of 2006
In MACA No.370 of 2006
The Oriental Insurance Co. Ltd. .... Appellant
Mr. S.K. Swain, Advocate
-versus-
Baburam Mohanta and others .... Respondents
Mr. S. Mohanty, Advocate for Respondent No.5
In MACA No.561 of 2006
Fulamani Mohanta .... Appellant
Mr. S. Mohanty Advocate
-versus-
Baburam Mohanta and others .... Respondents
Mr. S.K. Swain, Advocate for Respondent No.5
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
06.12.2021
Order No.
07. 1. Both the appeals being arise out of the same judgment are
heard together and disposed of by this common order.
2. Heard Mr. S.K. Swain, learned counsel for the Oriental
Insurance Company as well as Mr. S. Mohanty, learned counsel
for the claimant.
3. Upon hearing both the parties and the grounds mentioned in
M.C. No.528 of 2007 arising out of MACA No.561 of 2006, the
delay in filing MACA No.561 of 2006 is condoned. M.C. No.528
of 2007 is disposed of.
4. Respondent Nos.1 and 3 in MACA No.561 of 2006 are the
owners of Rajdoot Motorcycle and Truck respectively.
Incidentally Respondent No.1 happens to be the father of the
deceased and husband of the claimant. As such no further
substitution for Respondent No.1 is required to be brought on
record and similarly no further notice is required to be issued to
Respondent No.3 being she was set exparte before the learned
Tribunal and the liability on her behalf has not been disputed by
the concerned Insurance Company, i.e. Respondent No.5-Oriental
Insurance Co. Ltd.
5. Learned Tribunal by impugned judgment dated 6.2.2006 in
MAC Case No.65 of 1995 has directed for payment of
compensation of Rs.44,500/- to the claimant (mother of the
deceased) on account of death of the deceased in a motor
vehicular accident dated 7.1.1995. The deceased was a pillion
rider in the Rajdoot Motorcycle bearing Registration No.OXG 61
and there was a head on collusion between the said motorcycle
and Truck bearing Registration No.OSC 2009 resulting death of
the deceased.
6. The claimant has filed MACA No.561 of 2006 praying
enhancement of the compensation whereas the Insurance
Company, i.e. insurer of the Truck has preferred MACA No.370
of 2006 challenging the award on the ground of no policy and
invalid DL of the driver of the Truck.
7. It is submitted on behalf of the Oriental Insurance Co. Ltd. that
learned Tribunal has erred by wholly relying on the seizure list
prepared by the Police in G.R. Case No.9/95 to hold that the
Truck had valid insurance policy. But the fact remains that no
such policy was there in respect of the offending Truck as
mentioned in the seizure list and therefore, the Oriental Insurance
Co. Ltd. cannot be held liable to incur the compensation on behalf
of the concerned owner.
8. Upon perusal of the copy of W.S. of the insurer as produced in
course of hearing, it is found that no such pleading was taken on
behalf of the insurer before the learned Tribunal denying validity
of policy in respect of the Truck. Therefore, such a plea taken at
this stage by the insurer is not found acceptable and accordingly
rejected.
9. Similarly neither any pleading has been made nor any material
was produced to establish the contention that the driver of the
Truck was not having a valid DL.
10. Next coming to the submission of the claimant with regard to
enhancement of the compensation amount, it is found from the
impugned judgment that the learned Tribunal by holding
contributory negligence on both the insurers of the Rajdoot
Motorcycle as well as the Truck on 50 : 50 ratio has directed to
pay the compensation amount equally. It is submitted on behalf of
the claimant that the amount in respect of the National Insurance
Co. Ltd. i.e. the insurer of the Rajdoot Motorcycle have already
been deposited and realized by the claimant.
11. Section 140 of the M.V. Act, 1988 stipulates amount of
Rs.50,000/- for no fault liability in case of death. Admittedly the
deceased was a student and non-earning person on the date of
accident. Learned Tribunal while discussing at para 11 of the
judgment though has said that the claimant is entitled for
compensation of Rs.50,000/- and further added Rs.2,000/-
towards funeral expenses and Rs.2,500/- towards loss of estate,
but by holding that the deceased had contributed negligence by
going as a pillion rider in the motorcycle has deducted 10% of the
total amount from the compensation. It is true that the driver of
the Rajdoot Motorcycle was the father of the deceased and she
was at the age of 18 years on the date of accident. Therefore, the
learned tribunal is not found right in its approach to attribute
negligence on the part of the deceased for she travelling in the
same motorcycle with her father. Further considering the fact that
the accident is dated way back in the year 1995 and in the
meantime 26 years have already been elapsed, this Court directs
for payment of an additional amount of Rs.1,00,000/- (rupees one
lakh) consolidated to the claimant by the Oriental Insurance
Company Limited without further entering into the aspect of
contributory negligence. The amount is derived based on the
calculation that the deducted amount of Rs.10,000/- is liable to
be paid to the claimant and admittedly 50% of the total
compensation amount as per the direction of the learned Tribunal
which comes to Rs.22,225/- has not been paid to the claimant. If
both the amounts are added and 6% interest is granted on the
same from the date of filing of the application, the total amount
comes nearly Rs.82,000/-. Accordingly, this Court determines the
consolidated amount of Rs.1,00,000/- to be paid to the claimant.
12. In the result, the Oriental Insurance Co. Ltd., i.e. Appellant in
MACA No.370 of 2006 is directed to deposit the modified
amount of compensation of Rs.1,00,000/- (rupees one lakh)
consolidated before the learned Tribunal within a period of eight
weeks from today; where-after the same shall be the disbursed to
the claimant.
13. On deposit of the award amount before the learned Tribunal
and filing of a receipt evidencing the deposit before this Court
with a refund application, the statutory deposit made before this
Court with accrued interest thereon shall be refunded to the
Appellant-Insurance Company.
14. With the aforesaid observations, the MACAs are disposed of.
15. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
