Orissa High Court
Divisional Manager vs Sulochan Pradhan And Another (In ... on 5 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.779 of 2015
MACA Nos.779 & 780 of 2015
Divisional Manager, New India Appellant
Assurance Company Ltd. .... in both the cases
Mr. G.C. Samantaray, Advocate
-versus-
Sulochan Pradhan and Another (in MACA No.779/2015)
Pitambar Pradhan and Others (in MACA No.780/2015)
.... Respondents
Mr. A.S. Nandy, counsel for Claimant - Respondents
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
05.01.2022
Order No.
08. 1. Heard Mr. G.C. Samantaray, learned counsel for the insurer -
Appellant and Mr. A.S. Nandy, learned counsel for the claimant -
Respondents.
2. It is submitted by both parties that Respondent No.2 in MACA
No.780 of 2015 died on 19th August, 2012 and all his LRs. being on
record, no further substitution is required.
3. By the common judgment dated 31st December, 2014 in MAC
Case Nos.155 and 157 of 2002, the learned 2nd MACT, Sambalpur
has directed for payment of compensation to the tune of Rs.5,48,800/-
and Rs.2,45,000/- to the respective claimants along with 6% interest
from the date of filing of the claim applications. MACA No.779 of
2015 is in respect of MAC Case No.157 of 2002 and MACA No.780
of 2015 is in respect of MAC Case No.155 of 2002. Both the appeals
being arising out of the common judgment are heard together and
disposed of by this common order.
4. The insurer has filed both these appeals being aggrieved with
the common judgment. It is contended on behalf of the Appellant that
the learned Tribunal has committed error on record by not attributing
contributory negligence to the driver of the truck.
5. The facts as reveal from the impugned judgment are that, the
deceased persons namely Muliram Pradhan and Tuku Pradhan who
were father and son, were traveling in the offending Tempo bearing
registration No.OR 06 D 2140 carrying their goods from village
Balugaon to Brajnathpur on hire basis on NH 23 on 6th May, 2001. On
the way, due to rash and negligent driving of the driver of the Tempo,
it dashed against the truck bearing Registration No.OR 05 E 6595
coming from the front. As a result of the accident both the deceased
died.
6. It is contended by Mr. Samantaray, learned counsel for the
Appellant that in the charge-sheet filed by police the drivers of the
Tempo as well as of the truck have been indicted for criminal
prosecution and as such the contributory negligence on the part of the
driver of the truck is prima facie established. But the claimants even
did not implead the owner of the truck and consequently the Tribunal
has also failed to appreciate the negligence on the part of the driver of
the truck.
7. Conversely, it is submitted by Mr. Nandy, learned counsel for
the claimant - Respondents that, it is the choice of the claimants to
implead either of the offenders to claim compensation and it is not
mandatory to implead both of them as parties in the claim application.
In this regard he relies on the decision of Hon'ble Apex Court in the
case of Khenyei v. New India Assurance Company Ltd. & Ors.,
(2015) 9 SCC 273.
8. Having heard both parties and upon perusal of the impugned
judgment it is seen that the learned Tribunal has discussed the issue at
paragraph 4. It is observed by the learned Tribunal that P.W.2 who
was the eye witness of the accident has categorically stated that the
driver of the Tempo was responsible for causing the accident due to
his rash and negligent driving. As such, it was concluded by the
learned Tribunal to fix the negligence on the part of the driver of the
Tempo only.
9. Having analyzed the evidence of P.W.2, the approach of the
learned Tribunal to fix the negligence on the part of the driver of the
Tempo cannot be faulted with. It needs to be mentioned here that no
evidence on behalf of the insurer was adduced to suggest any
contributory negligence on the part of the driver of the truck. Merely
because the charge-sheet has been filed indicting the driver of the
truck also for criminal prosecution, cannot itself satisfy the fact that
the driver of the truck had contributed negligence in causing the
accident. What to be seen is, the nature of evidence brought on record
on the given facts of the case. So, in absence of any evidence from the
side of the insurer, the approach of the learned Tribunal in fixing the
negligence on the part of the driver of the Tempo cannot be said
unjustified. Accordingly the contention of the insurer in this regard is
rejected.
10. No dispute has been raised with regard to quantum of
compensation. Thus, the amount of compensation so granted in favour
of the respective claimants in both the claim applications as directed
by the learned Tribunal is confirmed.
11. Both the appeals are dismissed being devoid of merit.
12. The insurer - Appellant is directed to deposit the entire awarded
amount with interest in both the cases before the tribunal within eight
weeks from today; where-after the same shall be disbursed in favour
of the respective claimants as directed by the tribunal.
13. The statutory deposit made by the insurer in both the appeals
before this court along with accrued interest be refunded to the
Appellant - insurer on proper application and on production of proof
of deposit of the awarded amount before the tribunal.
14. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
