Orissa High Court
Divisional Manager vs Swarabala Ojha And Others on 17 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.510 of 2020
Divisional Manager, Oriental
Insurance Company Ltd. .... Appellant
Mr. P.K. Mohanty, Advocate
-versus-
Swarabala Ojha and Others .... Respondents
Mr. P. K. Behera, counsel for Respondents 2-4
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
17.11.2022
Order No.
04. 1. The matter is taken up through hybrid mode.
2. Heard Mr. P.K. Mohanty, learned counsel for the insurer -
Appellant and Mr. P.K. Behera, learned counsel for claimant -
Respondents 2, 3 and 4.
3. Present appeal by the insurer is against impugned judgment
dated 22nd January, 2020 of the learned 3rd MACT, Bhadrak passed in
MAC No.120 of 2000, wherein compensation to the tune of
Rs.1,41,684/- along with interest @ 7% per annum from the date of
filing of the claim application, i.e. 22nd December, 2000 has been
granted on account of death of the deceased Bhaskar Chandra Ojha in
the motor vehicular accident dated 6th May, 2000.
4. Mr. Mohanty contends on behalf of the insurer that the
offending vehicle, i.e. Ambassador car bearing registration number
OR 05H 5006 has been implanted in this case to manage
compensation. He further submits that as per the allegations of the
F.I.R., no mention of the offending Ambassador car was there. But for
the only reason that the owner of the Ambassador car is the father of
the owner of the auto-rickshaw responsible for the cause of accident,
the same was deliberately implanted in connivance with police
officials. In support of his submission Mr. Mohanty relies on the
evidence of O.P.W.1 - the investigating officer in the police case.
5. As per the claimants, the deceased while moving in the auto-
rickshaw bearing registration number OR 05J 4496, the offending
Ambassador car dashed it from behind. As a result of the accident the
deceased fell down from the auto-rickshaw and sustained grievous
injuries on his head. He died on the same day in the hospital.
6. Police registered Bhadrak Town P.S. Case No.58 dated 6th May,
2000 and upon completion of investigation submitted charge-sheet
against the driver of the offending Ambassador Car for commission of
offence under section 279/304-A of I.P.C. Two witnesses including
P.W.2, the eye witness, were examined on behalf of the claimants and
one witness as O.P.W.1, who is the investigating police officer, was
examined from the side of the insurer. It is true that the contents of the
F.I.R. under Ext.1 do not speak involvement of the offending car in
the accident. But the admitted fact remains that, the police upon
completion of investigation has submitted charge-sheet against the
driver of the offending car.
7. The owner while contesting the claim application, has admitted
the accident, involvement of the offending car in the accident and
sustenance of grievous injuries by the deceased in the accident.
8. On the other hand, the investigating officer by coming to the
court being examined as O.P.W.1, has never denied involvement of
the offending car in the accident. Though he has stated about absence
of any mark of damage on the front side of the Ambassador car or did
not notice any mark of damage to the auto-rickshaw, still his evidence
is not enough to take away the admission of the driver - owner of the
Ambassador car regarding involvement of the same in the alleged
accident. Nevertheless, the fact remains that charge-sheet has been
submitted against the driver of the offending car for criminal
prosecution. Thus, weighed on the principles of preponderance of
probability, the evidence adduced from the side of the claimants are
seen heavier to satisfy their contention regarding involvement of the
offending car in the accident. As such, no merit is seen in the
challenge of the insurer to dispute involvement of the offending
vehicle in the accident.
9. No further challenge being advanced with regard to the
quantum of compensation, which otherwise is seen just and
reasonable, no ground is found to interfere with the impugned
judgment.
10. In the result the appeal is dismissed and the insurer - Appellant
is directed to deposit the entire compensation amount before the
tribunal along with interest as per it's direction within a period of two
months from today; where-after the same shall be disbursed in favour
of the claimant - Respondent Nos.2 to 4 on same terms and
proportion contained in the impugned judgement.
11. The statutory deposit made by the insurer - Appellant before
this court along with accrued interest be refunded to the Appellant on
proper application and on production of proof of deposit of the
awarded amount before the tribunal.
12. The copies of depositions and exhibits as filed by Mr. Mohanty
in course of hearing are kept on record.
13. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
