Orissa High Court
The Divisional Manager vs Bimala Muduli And Others on 6 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.701 of 2015
The Divisional Manager,
Oriental Insurance Company Ltd. .... Appellant
Mr.Subrat Satpathy, Advocate
-versus-
Bimala Muduli and others .... Respondents
Mr.A.K.Tandi, Advocate for Respondent Nos.1 to 3
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
06.01.2022
Order No.
11. 1. It is submitted by Mr.Satpathy, learned counsel for the
Appellant that he has already paid the cost to the High Court Bar
Association on 13th December, 2021 and filed the receipt.
2. Heard Mr.Satpathy, learned counsel for the Appellant and
Mr.Tandi, learned counsel for Claimants-Respondents No.1 to 3.
3. The present appeal by the Insurer is directed against the
judgment dated 19th May, 2015 passed by the learned District
Judge-cum-MACT(I), Bolangir in M.A.C.No.70 of 2013, wherein
the learned Tribunal has directed for payment of compensation to
the tune of Rs.6,83,000/- along with interest @7% per annum
from the date of filing of the claim application i.e., 5th August,
2013 on account of death of the deceased in the motor vehicular
accident dated 19th April, 2013.
4. The case of the Claimants is that while the deceased was
coming to his house in the motorcycle, the offending vehicle i.e.,
tanker truck bearing Registration No.OR-03D-9128 dashed it
from behind being driven in a rash and negligent manner as a
result of which the deceased fell on the road and the wheel of the
offending truck crushed over the body.
5. Learned counsel for the Appellant contends that the accident
was caused due to negligence on the part of the deceased since he
was trying to overtake the offending vehicle in the wrong side. It
is further contended that the driver of the offending vehicle
having not authorized to drive a dangerous and hazardous
vehicle, the Insurer has no liability to indemnify the owner for
violation of the conditions.
6. On the other hand, it is submitted by Shri Tandi that the
contention with regard to negligence on the part of the deceased
is not correct since the evidence produced on record is to the
effect that the offending vehicle dashed behind the motorcycle of
the deceased. Secondly, it is submitted that since the driver of the
vehicle had the license and the vehicle was having valid permit as
well as insurance policy, the Insurer is liable to indemnify the
owner. Nonetheless, the Court in appropriate cases can direct for
recovery of the same from the owner under the principles of pay
and recover.
7. Having heard both parties and upon perusal of the impugned
judgment, it is seen that the offending vehicle is undoubtedly
having valid permit and insurance policy on the date of accident.
The driver was having the license to drive goods carriage vehicle.
Though no material is there to show that the driver is authorized
to drive dangerous and hazardous goods carriage vehicle, but for
the said reason, it may not be appropriate to grant the right of
recovery in favour of the insurer in the given facts of the present
case. Accordingly, the prayer in this regard by the Insurer-
Appellant is rejected.
8. It is also seen that the Insurer has not adduced any evidence
to attribute negligence on the part of the deceased in the cause of
accident though the claimant has brought sufficient evidence on
record to justify the claim that the offending vehicle dashed the
motorcycle of the deceased from behind. In absence of any
material evidence to substantiate the contention of the Appellant,
their submissions that the deceased was trying to overtake the
vehicle in the wrong side and thereby contributed negligence for
the accident is seen without substance and rejected.
9. With regard to the quantum of compensation, no fault is seen
in the approach of the learned Tribunal determining the
compensation the tune of Rs.6,83,000/-. So no reason is found to
interfere with the same. But the rate of interest is reduced to 6%.
10. Accordingly, the Insurer-Appellant is directed to deposit the
entire award amount of Rs.6,83,000/- (Six lakhs eight three
thousand) along with interest @6% per annum from the date of
filing of the claim application i.e., 5th August, 2013 within a
period of eight weeks from today; where-after the same shall be
disbursed in favour of the Claimants in the same proportion and
terms as directed by the learned Tribunal in its order.
11. The statutory deposit made by the Appellant be refunded to
him on proper application and on production of proof of deposit
of the awarded amount before the learned Tribunal.
12. The appeal is disposed of.
13. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal
