Orissa High Court

Baidyanath Dash vs Balaram Behera & Anr on 9 September, 2021

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                       MACA No.542 of 2017

     Baidyanath Dash                  ....                       Appellant


                                         Mr. Dillip Ku. Maharana, Advocate
                                         assisted by Ms. A. Barik, Advocate

                                 -versus-

     Balaram Behera & Anr.            ....                    Respondents


                                                  Mr. G.P. Dutta, Advocate
                                                         (respondent no.2)

                                                  Mr. P.R.Nayak, Advocate
                                                          (respondent no.1)

             CORAM:
             JUSTICE BISWANATH RATH
                          JUDGMENT

Date of Hearing and Judgment:09.09.2021

1. Heard Ms.A. Barik, learned counsel for the appellant, Mr.

P.R. Nayak, learned counsel for the respondent no.1-owner and Mr.

G.P. Dutta, learned counsel for the respondent no.2-Insurance

Company.

2. Short background involving the case is that on 09.08.2008 at

about 12.30 P.M. while the claimant along with his wife-petitioner

waiting on the left side of the road for an auto rickshaw to return back

to their residence, at that point of time, the offending motor cycle

// 2 //

bearing Registration No.OR-02-AR-5386 came from Tamando side

towards Baramunda and dashed behind the petitioner, resulting the

petitioner sustained severe injuries. Soon after the accident, he was

shifted to Som Hospital, Bhubaneswar with the help of local people

and thereafter to Ayush Hospital, Bhubaneswar for treatment. By filing

the claim application, it is claimed that the claimant was doing grocery

business and earning Rs.6,000/- per month. There is also an FIR

reporting the accident to Khandagiri P.S., which was registered as

Khandagiri P.S. Case No.352, dated 7.10.2008. It appears, the claimant

pleaded that the motor cycle having the insurance policy by giving the

specific policy number. The owner-respondent no.1 initially set ex

parte. Subsequently, though he appeared and filed written statement,

but again he remained absent. Virtually, there was no contest from

owner-respondent no.1. Respondent no.2-Insurnace Company filed

written statement denying the allegation based on the pleading. The

Tribunal framed the following issues:

"1) Whether due to rash and negligent driving of the driver of the offending vehicle bearing Regn. No.OR- 02-AR-5386 (the motor cycle), the alleged accident took place and in that accident the petitioner sustained injuries?

   2)     Whether the petitioner is entitled to               get
          compensation? If so what would be the extent?



                                     // 3 //

3) Whether all the Opp. Parties or any of the Opp. Party is/are liable to pay compensation?

4) To what other relief if any, the petitioner is entitled to?

3. On the pleading and the materials support at the instance of

the claimant, the Tribunal ultimately allowing the claim finalizing the

compensation of a sum of Rs.76,000/- (Rupees Seventy six thousand)

to be paid to the petitioner along with interest @7% per annum from

the date of application. But, however, to be paid by the respondent

no.1-the owner.

4. Assailing the impugned judgment, claimant filed the present

appeal. Advancing her submission, Ms.Barik took this Court to the

grounds therein, more particularly to Ground No.3. Learned counsel

for the claimant submitted that once the claim is based on the basis of a

particular policy number, it was the duty of the Insurance Company to

establish their case accordingly. Taking to the findings of the Tribunal

at paragraph-8, argument is advanced under the premises that even

though policy number has been taken note but there has been no asking

of production of such policy in the Tribunal for appropriate

consideration. It is also alleged that even though Insurance Company

denied existence of such policy, the Insurance Company had not even

produced such document to establish the case otherwise. It is therefore

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submitted that there is no appropriate consideration so far the liability

aspect is concerned. It is thus contended that the liability saddled on

respondent no.1 be shifted to respondent no.2.

5. Mr. Nayak, learned counsel appearing for respondent no.1,

owner through the objection contended that the offending motor cycle

had the insurance policy. An attempt is thus made to shift the liability

to Insurance Company for which the offending vehicle had the

insurance policy.

6. At the same time, Mr.Dutta, learned counsel appearing for

the Insurance Company taking this Court to the plea in the written

statement and the recording of such plea in paragraph-8 of the award

involved herein further through the disclosure made in insurance policy

by way of memo dated 24.6.2021 pursuant to a direction of this Court,

contended that there involved no policy to give a direction to the

Insurance Company to make over the compensation. Mr.Dutta taking

this Court to the findings of the Tribunal in paragraph-8 attempted to

justify the award of the Tribunal thereby objected the claim of the

claimant.

7. Considering the rival contentions of the parties, this Court

finds there is no dispute that the petitioner in his claim has provided the

motor cycle number as well as the policy number. It appears even

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though the owner sought for some time to file written statement, it is

unfortunate to say that the owner did not establish its case seeking

coverage of the insurance policy through Insurance Company. This

Court thus finds the owner played hide and seek in spite of giving

fullest opportunity even after recalling the ex parte order. It is at this

stage looking to the pleading of the Insurance Company, this Court

finds there is a clear denial by the Insurance Company on the existence

of the policy claimed by the claimants indicated in the claim

application, so also in the award by specifically saying the Insurance

Company involved had no such insurance policy. Further looking to

the issue no.3 specifically on the question as to whether all opposite

party or any opposite party is liable to pay compensation, Tribunal

through paragraph-8 of the award came to observed as follows:

"8. In view of the aforesaid discussion the petitioner is found entitled to get compensation. Now the point to be decided as to who would be liable to pay the said compensation. Admittedly, as per Exts.3 & 5, the certified copy of the seizure list and Zimanama, it reveals that the R.C. Book of the offending motor cycle stands in the name of the said owner (O.P.No.1), who himself was riding the motor cycle at the relevant time. The D.L. vide No.0220070075171 has also been issued in his favour, but the said seizure list is silent regarding seizure of insurance policy. No doubt, the petitioner has disclosed the insurance policy of the offending motor cycle to be 1502482312002545 valid from 23.1.08 to 22.1.09 in his claim application against Para-16, but

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he discussed no such insurance policy has been seized during investigation. Thus, except the policy number disclosed in the claim application, there is nothing on record to suggest that the offending motor cycle in question was insured with insurance company at the relevant time of accident. It be stated here that O.P. No.2 in its W.S. has specifically denied issuance of any insurance policy in respect of the offending motor cycle. Hence, in absence of any such policy no. liability can be imposed upon the insurance company in relation to the accident in question. However, on the other hand as it has been proved that O.P. No.1 is the registered owner and also riding the offending motor cycle, so it is he who is only liable to pay compensation to the petitioner. Thus, Issue No.(3) is answered accordingly."

8. Reading the aforesaid findings, this Court finds the Tribunal

has a clear finding through the pleading and the argument of the

Insurance Company through its written statement that there is specific

denial on the existence of any such insurance policy involving the

motor cycle involved. Once there is a clear denial by the Insurance

Company of existence of any such policy, responsibility for

establishing such claim shifts to the claimant. Claimant having not

discharged such burden and the owner played hide and seek, there is no

option with the Tribunal to come to such finding. It is in the

circumstance, this Court is in agreement in the finding of the Tribunal

and thereby dismisses appeal. For the reason of a doubt on the specific

plea of the Insurance Company by order dated 24.6.2021, this Court