Orissa High Court
MACA/945/2009 on 25 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.945 of 2009
MACA Nos.945 and 751 of 2009
Kumari Jani and Others (MACA No.945 of 2009)
Bulu Senapati (MACA No.751 of 2009)
.... Appellants
Mr. P.C. Pattnaik, Advocate in MACA No.945 of 2009
Mr. P.K. Mishra, Advocate in MACA No.751 of 2009
-versus-
Bulu Senapati and Another (MACA No.945 of 2009)
Kumari Jani and Others (MACA No.751 of 2009)
.... Respondents
Mr. P.K. Mishra, counsel for R-1 and Mr. G.P. Dutta,
counsel for R-2 in MACA No.945 of 2009
Mr. P.C. Pattnaik, Counsel for R-1 to 4 and Mr.G.P.Dutta,
Counsel for R-5 in MACA No.751of 2009
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
25.11.2021
Order No.
07. 1. Heard Mr. P.C. Pattnaik, learned counsel for the claimants, Mr.
P.K. Mishra, learned counsel for the owner and Mr. G.P. Dutta,
learned counsel for the insurer.
2. Both the appeals being arise out of the same judgment, have
been heard together and disposed of by this common order.
3. The case of the claimants is that the deceased when going on
the left side of the road on 9th April, 2006 met with the accident as the
offending vehicle bearing registration No.OR 07 M 4116 all of sudden
came in the reverse gear causing death of the deceased. P.W.1, the
wife of the deceased examined herself as the eye witness of the
occurrence, but the learned Tribunal disbelieving their case and basing
on the police report held that the deceased was a gratuitous passenger
in the offending vehicle at the time of accident and died due to capsize
of the vehicle. Learned Tribunal granted compensation of
Rs.1,94,300/- to the claimants along with 6% interest and directed the
owner to pay the same. The learned Tribunal did not fix any liability
on the insurer.
4. This is questioned by the claimants and owner before this Court
in the present appeals. It is submitted on behalf of the appellants that
when P.W.1, the wife of the deceased has stated in her oral evidence
that she along with deceased were walking on the left side of the road
and the offending vehicle dashed the deceased coming in a reverse
gear, the reliance on the police report by the Tribunal is erroneous.
5. Examining the contention of the Appellants it reveals from the
impugned judgment and the copy of LCR that Ext.1 (copy of the
F.I.R.), Ext.2 (copy of the charge-sheet) and all other documents were
produced and relied on by the claimants to mark as Ext.1 to Ext.7 on
their behalf. It is seen from the contents of the F.I.R. that the
informant has seen the accident and in the charge-sheet present P.W.1
has not been cited as a witness to the occurrence. So from the own
documents filed by the claimants, it is proved that this P.W.1 was not
an eye witness to the occurrence and tried to develop her case
subsequently. Thus, no fault is seen in the finding of the learned
Tribunal to disbelieve the evidence of P.W.1 as an eye witness.
Accordingly the finding of the learned Tribunal that the deceased was
a gratuitous passenger traveling in the offending vehicle at the time of
accident is confirmed.
6. At this stage it is further submitted on behalf of claimants -
Appellants that the poor claimants are the wife and children of the
deceased who was a labourer. It is also submitted that under the
principle of pay and recover, the insurer may be directed to pay the
compensation amount and proceed for recovery of the same from the
owner keeping in view the poor condition of the claimants.
7. In the case of Anu Bhanvara Etc. v. IFFCO Tokio General
Insurance Company Limited and others, AIR 2019 SC 3934, the
appellants-claimants were admittedly gratuitous passengers travelling
in a goods vehicle and the Supreme Court by referring to catena of
decisions from both sides directed the insurer to pay the compensation
amount with right to realize the amount from the owner. The relevant
observations of the Supreme Court are as follows:
"9. The next question is as to which of the respondents, that
is the owner and driver, or the insurer of the vehicle, would
be liable for payment of such compensation. As regards the
liability for payment of compensation, it has been contended
by the learned counsel for the appellants that since the
vehicle was admittedly insured with the respondent No.1-
insurance company, the principle of pay and recover would
be invoked even in case of a gratuitous passenger in a goods
vehicle. xx .. .. xx .. .. xx.
10. Per contra, learned counsel for the respondent-insurance
company has contended that since the claimants were
gratuitous passengers in a goods vehicle, in which case the
liability for payment of compensation for death or body
injury to the passengers of such goods vehicle would not be
cover, hence the principle of pay and recover would not
apply. xx .. .. xx .. .. xx.
11. We have heard learned counsel for the parties and
perused the record as well as the various decisions cited by
learned counsel for the parties. The insurance of the vehicle,
though as a goods vehicle, is not disputed by the parties.
The claimants in the present case are young children who
have suffered permanent disability on account of the injuries
sustained in the accident. Thus, keeping in view the peculiar
facts and circumstances of this case, we are of the
considered view that the principle of "pay and recover"
should be directed to be invoked in the present case.
12. Accordingly, these appeals are disposed of with the
direction that the respondent No.1-insurnce company shall
be liable to pay the awarded compensation to the claimants
in both the appeals. However, respondent No.1-insurance
company shall have the right to realize the said amount of
compensation from the respondents No.2 and 3 (driver and
owner of the vehicle) in accordance with law."
8. Keeping in view the facts of the present case, the insurer -
Respondent No.2 is directed to pay the compensation amount as
granted by the learned Tribunal in the impugned judgment dated 4 th
July, 2009 within a period of eight weeks from today and proceed on
the principles of pay and recover to realize the amount from the
owner.
9. The owner - Appellant in MACA No.751 of 2009 is permitted
to take refund of the statutory deposit made before this court along
with accrued interest thereof.
10. With the above observations the appeals are disposed of.
11. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
