Orissa High Court
MACA/827/2006 on 19 March, 2021
MACA No.827 of 2006
11. 19.03.2021 Heard learned counsel for the Appellant and
learned counsel for the Respondent No.1.
Sole ground of challenge by the Insurance
Company to the judgment and award being passed by the
3rd M.A.C.T, Bargarh is, when there is specific plea by the
Insurance Company that since the vehicle involved is a
private insured vehicle, the same was not authorized to
carry the passenger and for the specific findings of the
Tribunal on issue no.II, whether the Tribunal is justified
in awarding compensation against the Insurance
Company, learned counsel for the Appellant taking this
Court to the written statement, evidence and the material
support, contended that the findings of the Tribunal
remains contrary to the pleadings available on record.
Learned counsel for the claimant taking this Court
to the plea of the owner submitted that the deceased
suffered on account of death involving the offending
vehicle was having a pleasure trip in the offending vehicle
and for the valid insurance, the Tribunal remains
justified in passing the burden on the Insurance
Company.
Considering the rival contentions of the parties and
on perusal of the contents in the copy of the Ext.J, this
Court finds, the vehicle was insured in the capacity of the
Ayas
Private Car (India) Motor Vehicles Act, 1988 and for the
own statement of the owner that the deceased was having
a pleasure trip in the vehicle, there is no doubt that the
vehicle was being used for commercial purpose. There is
also no material forthcoming to establish that the trip
provided to the deceased was either under the capacity of
2
the family member or the owner of the vehicle itself. It is,
in the circumstance, this Court taking into account the
observation of the Tribunal in paragraph no.8 on issue
no.II, finds, there is clear finding that the accident has
occurred due to the negligence of the driver. In the
process, on both counts, this Court observes, the
Insurance Company cannot be held liable. In the
circumstance, this Court interfering with the judgment &
award, so far as shifting of the liability of payment of
compensation on the Insurance Company is concerned,
however, maintains the compensation aspect as against
the owner. The impugned award is interfered with and
modified to the above extent only.
In view of disposal of the MACA and on filing of
proper application, the statutory deposit with accrued
interest shall be refunded to the Insurance Company.
Considering the averments made in the cross
objection involving the claimant for enhancement of the
awarded amount, this Court taking into account the
detailed discussion on the income aspect along with
application of multiplier, finds, there is no illegality in the
assessment made by the Tribunal so far as the
compensation is concerned. In the circumstance, this
Court finds no substance in the cross objection.
The Cross Objection is, hereby, dismissed.
...............................
(Biswanath Rath, J.)
