Orissa High Court
The New India Assurance Company vs Mr. Manoranjan Jena And Another on 26 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.44 of 2020
The New India Assurance Company .... Appellant
Limited
Mr. G.P. Dutta, Advocate
-versus-
Mr. Manoranjan Jena and another .... Respondents
Mr. P.K. Mishra, Advocate for Respondent No.1
.
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
26.08.2022
Order No.
04. 1. Heard Mr. G.P. Dutta, learned counsel for the Appellant-
Insurance Company as well as Mr. P.K. Mishra, learned counsel
for Respondent No.1-claimant.
2. Present appeal by the insurer is directed against the judgment
dated 17.10.2019 of learned 5th M.A.C.T., Khurda in M.A.C.T.
Case No.53 of 2014 wherein compensation to the tune of
Rs.9,85,872/- has been granted along with interest @6% per
annum to the claimant from the date of filing of the claim
application, i.e.11.11.2014 on account of death of the deceased in
the motor vehicular accident dated 06.02.2013.
3. It is submitted by Mr. G.P. Dutta, learned counsel for the
Appellant-Insurance Company that the alleged offending vehicle,
i.e. motorcycle bearing Registration No.OR-05-AA-1008 was
never involved in the accident, but has been subsequently
implanted to manage the compensation. It is also submitted that
there is delay of four months in lodging the FIR and as per the
bed head ticket, the accident happened as deceased himself
dashed his motorcycle against a tree being intoxicated. In this
regard the evidence of the claimant is also relied upon.
4. After hearing Mr. P.K. Mishra, learned counsel for the
claimant-Respondent No.1 and perusal of the impugned judgment
reveals that the learned Tribunal under Issue No.2 has come to the
finding that the death of the deceased was caused due to rash and
negligent driving of the driver, namely Dibakar Nayak of the
offending motorcycle bearing Registration No.OR-05-AA-1008.
A copy of the evidence adduced by P.Ws.1 and 2 from the side of
the claimant as well as the copy of the bed head ticket under
Ext.A reveals that P.W.1 is the claimant himself and P.W.2 is an
alleged eye-witness to the accident. Ext.A has been relied upon
from the side of the insurer.
5. It is seen from the cross-examination of P.W.1, who is none
other than the claimant himself that he has specifically admitted
that his brother dashed his bike being in intoxicated state. The
relevant statement of said P.W.1 is as follows:
"My brother in intoxicated state of mind was driving
the bike, which hit to a tree at roadside causing
injuries on his portion. After four months of
incident, the FIR has been lodged. It is not a fact that
for the purpose of this case, we have implanted the
number of bike (offending bike) to extract public
money from O.P. No.2."
6. Admittedly said P.W.1 is the claimant as well as the informant.
Such admission of him is supported by the statement of doctor
endorsed in the bed head ticket under Ext.A that the head injury
to the deceased is due to road traffic accident as the bike hit to the
tree under alcoholic influence.
7. It is submitted by Mr. P.K. Mishra, learned counsel for
Respondent No.1-claimant that when P.W.2, the eye-witness of
the accident says that the accident happened due to rash and
negligent driving of the offending motorcycle, such statement
made by P.W.1, who is not an eye-witness, is irrelevant. Such
submission as advanced by Mr. Mishra is not found convincing
for the reason that P.W.1 is none other than the claimant.
Admission does not require proof. So the admission of the
claimant himself shall prevail over all such evidences of other
witnesses because he is the plaintiff and sole beneficiary of
compensation.
8. So keeping in view such admission of the claimant, I do not
find any case in his favour to get the compensation as no
negligence can be said to have been attributed on the part of the
driver of the offending motorcycle. It needs to be reiterated here
that it is the consistent case of the insurance company that the
offending vehicle has been implanted to manage the
compensation amount.
9. In view of the discussions made above, the appeal is allowed
and it is held that the claimant is not entitled for any
compensation amount. The impugned award is set aside.
10. The copies of depositions of P.Ws.1 & 2, and Ext.A as
produced by the Appellant in course of hearing are kept on
record.
11. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
