Orissa High Court
Sahena Bibi And Others vs Divakar And Another on 21 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.603 of 2019
Sahena Bibi and Others .... Appellants
Mr. B. N. Samantaray, Advocate
-versus-
Divakar and Another .... Respondents
Mr. G.P. Dutta, Advocate of Respondent No.2
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
21.7.2022
Order No.
08. 1. The matter is taken up through hybrid mode.
2. Heard Mr. B.N. Samantaray, learned counsel for the Appellant
and Mr. G.P. Dutta, learned counsel for insurer - Respondent No.2.
3. Present appeal by the claimants is directed against impugned
judgment dated 10th July, 2019 of learned 3rd MACT, Jajpur passed in
MAC No.54 of 2010 wherein compensation to the tune of
Rs.11,45,200/- along with interest @ 6% per annum from the date of
filing of the claim application, i.e. 21st May, 2010 has been granted on
account of death of the deceased in the motor vehicular accident dated
7th January, 2010.
4. Learned tribunal while granting compensation in favour of the
claimant - Appellants, has directed the same be paid by the owner -
Respondent No.1 and exempted the insurer from the liability.
5. The claimants have come up in appeal against such exoneration
of the insurer from its liability to pay the compensation on behalf of
the owner.
6. It is submitted on behalf of the Appellants that, the tribunal by
saying that the claimants have failed to prove existence of any valid
insurance policy in view of denial of the insurer about the same, has
absolved the liability of the insurance company despite the insurance
policy No.1801792343002376 has been specifically stated by the
claimants in the claim application. It is thus submitted that when
prima facie materials have been supplied by the claimants, the onus is
shifted to the insurer to dispute the same and considering the status of
the claimants, the burden cannot be fastened on the them to prove the
validity of the insurance policy.
7. The claimants while filing the appeal, has attached two
documents under Annexure-2 and 3 which are the MVI report and the
copy of the insurance policy respectively.
8. Considering the dispute over the policy, this court in order
dated 11th April, 2022, directed the counsel for the insurer to get
instructions on the copy of the policy of insurance filed at Annexure-
3. Mr. Dutta, learned counsel for the insurer submits that despite
repeated reminders sent to the company, no instructions have been
received from them till date. A copy of the e-mail sent by Mr. Dutta to
the company is also produced before the court which is kept on
record. Accordingly it is inferred that the insurer - respondent has
failed to controvert existence of the policy under Annexure - 3 and a
presumption is drawn in favour of the claimant - Appellants.
9. A perusal of Annexure-2 which is the report of the MVI dated
12th January, 2010 reveals that the offending vehicle bearing
registration number AP-12-U-9561 was validly insured on the date of
accident vide insurance policy No.1801792343002376, which is the
same number mentioned in the claim application as stated above. The
policy was issued by the Reliance General Insurance who is the
present Respondent No.2. Annexure-3 is the copy of the said
insurance policy that speaks its validity in respect of the same
offending truck for the period from 17th July, 2009 till 16th July, 2010.
The date of accident being 7th January, 2010, the insurance policy
under Annexure-3 appears to be validly covering the offending
vehicle on such date. Therefore, the finding of the learned tribunal
under issue No.II to exonerate the insurer from its liability is set aside
being found against the evidence. As such, the insurer is held liable to
indemnify the compensation amount on behalf of the owner.
10. In the result the appeal is allowed and Respondent No.2 -
insurer is directed to deposit the entire compensation amount along
with interest before the tribunal as per its direction contained in the
impugned judgment within a period of two months from today;
where-after the same shall be disbursed in favour of the claimant -
Appellant on such terms and proportion as per the impugned
judgment.
11. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
