Orissa High Court
The Divisional Manager vs Sharmila Devi And Others on 12 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.319 of 2021
The Divisional Manager, New India .... Appellant
Assurance Company Limited
Mr. G.P. Dutta, Advocate
-versus-
Sharmila Devi and others .... Respondents
Mr. P.K. Mishra, Advocate for Respondent Nos.1 to 3
.
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
12.05.2022
Order No.
04. 1. Heard Mr. G.P. Dutta, learned counsel for the Appellant-
Insurance Company as well as Mr. P.K. Mishra, learned counsel
for Respondent Nos.1 to 3, the claimants.
2. Present appeal by the insurer is directed against judgment dated
26.02.2021 of learned 3rd M.A.C.T., Rourkela in M.A.C. Casae
No.261 of 2015 wherein compensation to the tune of
Rs.38,76,874/- has been granted along with interest @6% per
annum to the claimants from the date of filing of the claim
application, i.e.10.09.2015 on account of death of the deceased in
the motor vehicular accident dated 18.07.2015.
3. The facts of the case are that two vehicles, i.e., Auto-rickshaw
bearing Registration No.OD-14-C-7354 and the Maruti Swift Car
bearing Registration No.OD-14-B-1836 were involved in the
accident. The deceased was an occupant of the Auto-rickshaw at
the time of accident as a passenger. The accident was due to head
on collusion of both the vehicles.
4. Mr. G.P. Dutta, learned counsel for the Appellant-Insurance
Company submits that the FIR was lodged in respect of the
accident stating entire negligence on the part of the driver of the
Car. The police investigated the case and submitted the charge-
sheet against the driver of the Car for criminal prosecution. It is
thus contended on behalf of the insurer that when the police
submitted the charge-sheet against the driver of the Car only and
the recitals of the FIR speaks off negligence on the part of the
driver of the Car, the finding of the learned Tribunal in fixing
negligence to the extent of 30% on the driver of the Auto-
rickshaw is illegal and as such unsustainable.
5. Mr. P.K. Mishra, learned counsel for the claimants-Respondent
Nos.1 to 3 submits in his reply that the learned Tribunal has
arrived at such conclusion logically keeping in view the fact that
the accident was due to head on collusion. He further submits that
the opinion of the IO in the charge-sheet for criminal prosecution
has little bearance in the present claim case to fix the negligence.
6. Upon hearing both the parties, it reveals from the impugned
judgment that the learned Tribunal with a detailed discussion on
such aspect at paragraphs 13 and 14 has concluded as such fixing
the negligence on the part of the driver of the Car as well as the
Auto-rickshaw to the extent of 70% and 30% respectively.
Admittedly, the accident is a result of head on collusion between
the two vehicles. The submission advanced by Mr. Dutta that
when the charge-sheet submitted by the police under Ext.2 has
been relied on by the claimants, they cannot now differ from the
same to contend negligence on the part of the driver of the Auto-
rickshaw. This contention of the insurer is not acceptable for the
reason that the claimants are not contradicting the contents of the
charge-sheet or the FIR, but their case is that there was also
negligence in the cause of the accident by the driver of the Auto-
rickshaw in addition to the negligence attributed to the Car driver.
In other words, there is composite negligence on the part of both
the drivers. As per the evidence of P.W.2, the eye-witness, the
accident took place while both the vehicles were in the middle of
the road coming from opposite direction. The Tribunal analyzed
on the said aspect to held that, since the accident was a result of
head on collusion, composite negligence is attributable to the
driver of the Auto-rickshaw, and any such opinion given in the
charge-sheet submitted by the police for criminal prosecution
where strict liability is required to establish the culpability for the
offences, the same will not be binding in the claim proceeding. It
is true that the facts in the claim proceeding has to be established
through the evidence brought in the said proceeding and any
finding in criminal proceeding in respect of the same accident
cannot be treated as binding on the Claims Tribunal. Therefore,
no infirmity is seen in the approach of the learned Tribunal for
fixing the composite negligence on the driver of the Auto-
rickshaw to the extent of 30%.
7. Mr. Dutta further questions the quantum of compensation and
submits that despite 70% liability has been fixed on the driver of
the Car, the claimants have compromised for Rs.9,60,000/- in
respect of the insurer of the Car. But the Tribunal has saddled
Rs.11,63,062/- on the present insurer towards 30% of the liability.
Therefore, he submits to calculate his liability of 30% taking
Rs.9,60,000/- as 70% amount.
8. This submission of Mr. Dutta is not found conceivable and
rejected out-right for the reason that at the time of compromise
between the claimants and the insurer in respect of the Car,
neither any evidence was not taken before the Tribunal nor any
extent of negligence was decided. In fact, the compromise and
settlement was arrived on 11.8.2018, while taking of evidence
before the tribunal began on 4.1.2021.
9. Moreover, it is seen that the computation made by the learned
Tribunal to arrive just compensation is found in conformity with
the settled principles decided in the case of National Insurance
Company Limited vs. Pranay Sethi and others, (2017) 16 SCC
680 where all such aspects have been taken care of. Therefore,
the challenge with regard to compensation as urged by the present
insurer-Appellant is seen without merit
10. Accordingly, the appeal is dismissed.
11. The Appellant-Insurance Company is directed to deposit the
entire award amount as per the direction of the learned Tribunal
along with interest within a period of two months from today
before the learned Tribunal which shall be disbursed in favour of
the claimants in terms of its direction.
12. 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-Insurance Company.
( B.P. Routray)
Judge
B.K. Barik
