Orissa High Court
National Insurance Company Ltd vs Rahas Kumari Nayak And Another on 22 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.259 of 2008
National Insurance Company Ltd.,
represented through its Officer-in- .... Appellant
Charge, Orissa Legal Cell, Cuttack
Mr. A.P. Das, Advocate
-versus-
Rahas Kumari Nayak and Another .... Respondents
Mr. S. Mohanty, counsel for Respondent No.1
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
22.11.2022
Order No.
10. 1. The matter is taken up through hybrid mode.
2. Heard Mr. A.P. Das, learned counsel for the insurer -Appellant
and Mr. S. Mohanty, learned counsel for claimant - Respondent No.1.
3. Present appeal by the insurer is against impugned judgment
dated 4th February, 2008 of the learned 2nd MACT, Sambalpur passed
in Misc. (A) Case No.133 of 1997 (K), wherein compensation to the
tune of Rs.1,12,000/- along with interest @ 6% per annum from the
date of filing of the claim application, i.e. 9th May, 1997 has been
granted on account of death of the deceased Umakanta Nayak in the
motor vehicular accident dated 16th February, 1997.
4. Mr. Das, learned counsel submits on behalf of the Appellant
that the deceased namely Umakanta Nayak was a gratuitous passenger
in the offending vehicle, i.e. truck bearing registration number OR 09
6341, at the time of accident and therefore, the insurer is not liable to
indemnify the compensation amount.
5. On the other hand the claimant - Respondent has filed her
cross-objection praying to enhance the compensation amount, mainly
on the ground that no future prospect has been added to the income of
the deceased.
6. Admittedly, no oral evidence has been adduced by either party
before the tribunal. The police papers, i.e. copy of the F.I.R., charge-
sheet, etc. have been relied on by the claimant in support of their case.
The insurance company did not adduce any evidence on their behalf.
7. The contention raised by the insurer that the deceased was a
gratuitous passenger was not accepted by the tribunal keeping in view
the contents of police papers filed on behalf of the claimants and
particularly in absence of any evidence adduced by the insurance
company. In respect of another deceased, who died in the same
accident and also an occupant in the same offending vehicle, this court
in MACA No.686 and 685 of 2008 have concluded, based on the
evidence adduced in that record, that the deceased, namely Kirtan
Behera was a labourer of the offending vehicle. In the instant case the
same stand has been taken by the claimants that their deceased son
was engaged as a Cooli in the same offending vehicle. Therefore, in
absence of any evidence in support of the contention of the insurance
company, this court concludes in favour of the claimants that the
deceased Umakanta Nayak was a Cooli in the offending vehicle at the
time of accident, as concluded by the tribunal. At the same time,
keeping in view the date of accident and age of the present claimant -
Respondent No.1, the amount granted by the tribunal is confirmed
without any enhancement.
8. In the result the appeal is disposed of with a direction to the
insurer - Appellant to deposit the entire compensation amount along
with interest before the tribunal 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 No.1, namely Rahas Kumari
Nayak on such terms and proportion to be decided by the tribunal.
9. It goes without saying that this court has not disturbed the
direction of learned tribunal regarding right of recovery granted in
favour of the insurance - company.
10. 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.
11. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
