Orissa High Court
The Divisional Manager vs Abinash Barik And Others on 8 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.940 of 2009 & MACA No.483 of 2009
In MACA No.940 of 2009
The Divisional Manager, Oriental .... Appellant
Insurance Company Ltd.
Mr. P.K. Mahali, Advocate
-versus-
Abinash Barik and others .... Respondents
None
In MACA No.483 of 2009
Smt. Manita Barik (since dead) .... Appellants
through LRs
None
-versus-
The Divisional Manager, Oriental .... Respondent
Insurance Company Ltd.
Mr. P.K. Mahali, Advocate
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
08.12.2021
Order No.
14. 1. Heard Mr. P.K. Mahali, learned counsel for the Insurance
Company. None appears on behalf of the claimants on call.
2. Both the appeals being arise out of the same judgment are
heard together and disposed of by this common order.
3. In the impugned judgment dated 17.02.2009 of the learned Ist
MACT, Mayurbhanj in MACT Misc. Case No.174 of 2004, the
original claimant, namely, Smt. Manita Barik has been granted
compensation to the tune of Rs.2,25,000/- along with 6% interest
per annum from the date of filing of the claim application,
i.e.14.9.2004 on account of her injury sustained in the accident
dated 22/23.7.2004.
4. The case of the claimant is that she sustained injury while
going in the offending vehicle i.e. Mahindra Max Festiva bearing
Registration No.OR-11-B-9729. The husband of the claimant was
the owner of the said vehicle, who was arrayed as Opposite Party
No.1 in the claim application. It is claimed that the Petitioner
sustained head injury, fracture injuries and other multiple injuries
for which she underwent treatment in different hospitals and due
to the effect to the said injuries, the lower part of her body down
from the waist to leg was paralyzed. The claimant was
represented through her husband, who was in fact the owner of
the offending vehicle.
5. Mr. P.K. Mahali, learned counsel for the insurer submits that
during pendency of the claim application, Opposite Party No.1,
the owner, who was also the husband of the original claimant and
representing her the claim application, died on 8.8.2006. It is
further submitted that the original claimant was examined as
P.W.1 before the learned Tribunal, but did not take any step for
substitution of the owner-Opposite Party No.1. So the status of
the claimant being the wife of the owner was not disputed and
upon death of her husband, she stepped into the shoes of her
husband to represent him as the owner of the vehicle. Therefore,
no claim can be awarded in her favour. It is also submitted that
the original claimant-Smt. Manita Barik also died during
pendency of the present appeal and has been substituted by her
sons.
6. In MACA No.483/2009, the LRs, who are the sons of the
original claimant as well as the owner, have also been substituted
upon death of Smt. Manita Barik.
7. Upon perusal of the impugned judgment, it is seen that the fact
of death of Manoranjan Barik (owner of the vehicle) on 8.8.2006
is admitted. Further, the sons of Manoranjan Barik as well as
Manita Barik were substituted on record for Manita Barik. But no
substitution has been made in respect of Manoranjan Barik, who
was admittedly the owner of the vehicle and husband of the
original claimant. In other words, the owner of the offending
vehicle became the claimant. As such 3rd party compensation
cannot be awarded in favour of the claimant.
8. But the learned Tribunal has ignored all these aspects to grant
3rd party compensation. Accordingly, the impugned judgment is
set aside. Both the appeals are disposed of.
9. The statutory deposit made by the Appellant in MACA No.940
of 2009 before this Court with accrued interest thereon shall be
refunded to the Appellant-Insurance Company.
( B.P. Routray)
Judge
B.K. Barik
