Orissa High Court
The Divisional Manager vs Tara Gumansingh And Others on 7 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.1155 of 2017
The Divisional Manager, ICICI .... Appellant
Lombard General Insurance Co. Ltd.
Mr. G.P. Dutta, Advocate
-versus-
Tara Gumansingh and others .... Respondents
Mr. J. Sahoo, Advocate on behalf of Mr. A. K. Sahoo, Advocate
for Respondent Nos.1 & 2
.
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
07.12.2022
Order No.
07. 1. Heard Mr. G.P. Dutta, learned counsel for the Appellant-
Insurance Company and Mr. J. Sahoo, learned counsel on behalf
of Mr. A.K. Sahoo, learned counsel for the Respondent Nos.1 &
2. Notice on Respondent Nos.3 & 4 is treated sufficient in view of
the Office note and postal tracking report.
3. Present appeal by the insurer is directed against the judgment
dated 21.08.2017 of learned 1st M.A.C.T., Deogarh in M.A.C.
Case No.34 of 2014, wherein compensation to the tune of
Rs.6,88,000/- has been granted along with interest @6% per
annum to the claimants from the date of filing of the claim
application, i.e. 16.09.2014 on account of death of the deceased in
the motor vehicular accident dated 11.05.2014.
4. The entire challenge advanced by Mr. G.P. Dutta, learned
counsel for the Insurance Company is regarding status of the
occupant as a gratuitous passenger of the offending vehicle, i.e.
Tata Magic bearing Registration No.OD-23-9093 at the time of
accident. It is submitted on behalf of the Appellant that the
deceased was going as an occupant of the offending vehicle as a
member of Band Party to attend a marriage function and due to
negligent driving of the driver of the same Tata Magic, he died
being thrown away from the vehicle. In support of such
submission, the contents of the FIR under Ext.1/ Ext.B are relied
on by Mr. Dutta. The insurer further relies on the copy of the
dead-body Chalan under Ext.C in that regard.
5. It is seen that two witnesses including P.W.2, the undisputed
eye-witness of the accident, were examined on behalf of the
claimants. At the same time, one witness as O.P.W.1, who is an
Officer of the Company, has been examined from the side of the
insurer. The eye-witnessing of the accident by P.W.2 is not
disputed. The Police upon completion of investigation have
submitted the charge-sheet against the accused-driver for
commission of offences under Sections 279/304-A, I.P.C.
6. The consistent case of the claimants is that the deceased was
standing by the side of the road along with P.W.2 when the
offending vehicle dashed against him. Therefore, two things
remain admitted are about involvement of offending vehicle in
the accident and that, the accident was the result of rash and
negligent driving of its driver. The only disputed question is that,
whether the deceased was an occupant of the same vehicle at the
time of accident or he was standing by the side of the road? When
the evidence adduced from the side of the claimants are ample
and enough to substantiate their case that the deceased was
standing on the road side, the same cannot be denied in absence
of any rebuttal evidence to the contrary. No such oral evidence
has been adduced from the side of the insurer to counter the
evidence of P.W.2. The only reliance placed by the insurer to the
contents of the FIR as well as the dead-body Chalan under Ext. B
& C respectively, are non-substantive and non-supportive.
Therefore, on the principles of preponderance of probability, the
case of the claimants' is established that the deceased was
standing on the road side at the time of accident. For lack of
evidence to substantiate the contention of the insurer that the
deceased was an occupant of the offending vehicle at the time of
accident, the same is rejected.
7. Next coming to the question of quantum of compensation, no
reason is found to interfere with the same as the learned Tribunal
has derived the compensation amount just and reasonably.
Therefore, no reason is found to interfere with the impugned
award. However, the additional interest of 6% directed by the
Tribunal as default interest is waived.
8. In the result, the appeal is disposed of with a direction to the
Appellant-Insurance Company to deposit the entire compensation
amount along with interest before the learned Tribunal as per its
direction within a period of two months from today; where-after
the same shall be disbursed in favour of the claimants on same
terms and proportion contained in the impugned judgment.
9. On deposit of the award amount before the learned Tribunal
and filing of a receipt evidencing the deposit with a refund
application before this Court, the statutory deposit made before
this Court with accrued interest thereon shall be refunded to the
Appellant.
10. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
