Orissa High Court
Divisional Manager vs Susama Roula And Others on 7 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.611 of 2017
Divisional Manager,
Reliance General Insurance Co. Ltd. .... Appellant
Mr.G.P.Dutta, Advocate
-versus-
Susama Roula and others .... Respondents
Mr.B.N.Samantray, Advocate for Respondent Nos.1 to 2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
07.12.2022
Order No.
13. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Dutta, learned counsel for the Appellant-
Insurer and Mr.Samantray, learned counsel for claimants-
Respondent Nos.1 to 4.
3. Present appeal by the Appellant is against the judgment
dated 1st March, 2017 of the 3rd MACT-cum- Additional District
Judge, Dhenkanal in M.A.C. Case No.194 of 2009, wherein
compensation to the tune of Rs.2,01,000/- has been granted along
with interest @7% per annum with effect from the date of filing
of the claim application on account of death of the deceased in
the motor vehicular accident on 10th June, 2009.
4. Mr. Dutta contends for the Appellant that the offending
vehicle, i.e. Tipper bearing Registration No. OSD-4584 did not
have a valid insurance policy on the date of accident and the
offending vehicle was never insured under the Appellant and
therefore, no liability can be fastened on the Appellant to pay the
compensation amount.
5. It is seen from the record that as per the police seizure
memo, the cover note bearing No.109000112674 was seized in
respect of the offending vehicle. According to the claimants, the
said cover note was issued in respect of a valid insurance policy
taken by the owner for the offending vehicle bearing Registration
No.OSD-4584. But the Insurer-Appellant denied issuance of said
cover note in respect of the offending vehicle. According to the
Insurer, the said cover note bearing No.109000112674
corresponding to insurance policy No.2402792338001893 was
issued in respect of another vehicle, i.e. Tata Indica Car in the
name of one Sudhansu Sekhar Rath as the owner. In this regard,
Ext.A - the certificate of the Insurer and Ext.B - the copy of
insurance policy bearing No. 2402792338001893, have been
produced in evidence. The Insurer also examined one of his
officials as O.P.W.1, the Senior Legal Executive of the company.
In his evidence, said O.P.W.1 has categorically said that, their
company has no insurable interest in respect of the offending
vehicle and at no point of time, the company entered any
contractual liability, either with the offending vehicle or its
owner, through any insurance policy. On these specific evidences
adduced from the side of the Insurer, no discussion has been
made by the Tribunal in the impugned judgment. The Tribunal
proceeded in a different way stating that, the Insurer produced a
copy of the cover note at the end of the trial shown to have issued
in favour of one Sudhansu Sekhar Rath with interpolation in
respect of engine number and chassis number. But it is seen from
the L.C.R. that no such document has been marked in evidence.
At the same time, only Ext.A and B, as stated above, have been
brought on record from the side of the Insurer in support of their
stand. Therefore, it is clear that the Tribunal has ignored the most
contentious issue from discission to illegally fix the liability on
the Insurer without any established material.
6. It needs to be mentioned here that in respect of such
statement made by O.P.W.1 in his evidence, though the claimants
have cross-examined him, but did not choose to put any such
question to him in rebuttal to such statement made at paragraph-2
of his evidence. It is thus established that the claimants have no
answer to such specific contention of the Insurer to deny validity
of the Insurance policy in respect of the offending vehicle. Thus,
the conclusion of the Tribunal that the cover note and related
policy number furnished on behalf of the Insurer cannot defuse
the claim of the applicants, appears to be unjustified. The further
observation of the Tribunal extending the right of recovery in
favour of the Insurer also cannot be allowed to sustain for the
reason that it is a case of no insurance policy and not a case of
violation of policy condition.
7. It is also important to mention here that, the owner of
the offending vehicle did not come to contest the claim before the
Tribunal and also remained absent from this Court, despite valid
service of notice. Moreover, he (owner) refused to accept the
notice from this Court.
8. Thus perusal of entire evidence adduced on record with
regard to validity of insurance policy makes out a case in support
of denial of the Insurer that it did not issue any insurance policy
in respect of the offending vehicle at any point of time. As such,
the appeal is allowed and the impugned order is set aside in
respect liability saddled on the Appellant. Since the owner is
liable to pay the compensation amount, the claimants-
Respondents are at liberty to realize the entire amount from the
owner-Respondent No.3 in accordance with law, in case he fails
to deposit the same within two months from today.
9. The statutory deposit made by the Appellant with
accrued interest thereon be refunded to him on proper application
and on production of proof of deposit of the award amount before
the learned Tribunal.
10. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal
