Orissa High Court
Rabindra Mohanty vs Shashadhar Mishra And Another on 28 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.79 of 2019 & MACA No.284 of 2019
MACA No.79 of 2019
Rabindra Mohanty .... Appellant
Mr.B.P.Das, Advocate
-versus-
Shashadhar Mishra and another .... Respondents
Mr.S.Roy, Advocate for Respondent No.2
Mr.G.P.Dutta, Advocate for Respondent No.4
AND
MACA No.284 of 2019
Manager Legal, .... Appellant
The Oriental Insurance Co. Ltd.
Mr.S.Roy, Advocate
-versus-
Rabindra Mohanty and others .... Respondents
Mr.B.P.Das, Advocate for Respondent No.2
Mr.G.P.Dutta, Advocate for Respondent No.4
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
28.11.2022
Order No.
06. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Das, learned counsel for the claimant and
Mr.Dutta, learned counsel for the Insurer-Oriental Insurance Co.
Ltd. as well as Mr.Roy, learned counsel for the Insurer-Reliance
Insurance Co. Ltd.
3. Both the appeals arise out of the same judgment dated
1st December, 2018 passed by the learned 3rd M.A.C.T.,
Bhubaneswar, in M.A.C. Case No.335/166 of 2012, wherein
compensation to the tune of Rs.5,95,000/- along with interest
@7% per annum has been granted from the date of filing of the
claim application on account of injuries sustained by the claimant
in the motor vehicular accident dated 9th June, 2021.
4. Mr.Roy submits for Oriental Insurance Co. Ltd., the
Insurer of the offending Pick up van, that, the injured claimant
was a gratuitous passenger in the Pick up van and therefore, the
Insurer is not liable to indemnify the compensation amount. He
further contends that the driver of the Pick up van is not at all
negligent for the accident and thus the direction of the Tribunal to
present Oriental Insurance Co. Ltd. for payment of compensation
on behalf of the owner is liable to be set aside.
5. Mr.Dutta, learned counsel for the Reliance General
Insurance Company Ltd., the Insurer of the offending truck,
submits that, the finding of the Tribunal with regard to negligence
aspect is justified and does not require any interference since the
accident is a head on collusion and both the drivers have been
charge-sheeted in the police case.
6. Mr.Das, learned counsel for the injured-claimant in
MACA No.79 of 2019 has prayed for enhancement of the
compensation amount, mainly on the ground that treatment
expenses has been counted on lesser side by the Tribunal.
7. Upon hearing all the parties, it is seen that the accident
is the result of head on collision between the offending Pick up
van bearing Registration No.OR-02-AZ-2348 and the truck
bearing Registration No.GJ-IBV-1620. The injured was moving
as an occupant of the offending Pick up van. In the accident, the
driver of the Pick up van died and the present claimant was
injured.
8. Being asked, neither Mr.Roy nor Mr.Dutta, learned
counsels for respective Insurance Companies are able to reply
anything regarding any compensation claimed for the death of the
driver of the offending Pick up van.
9. In respect of present deceased, so far as the contention
regarding gratuitous passenger is concerned, it is the specific case
of the claimant that he was an employee of the Company, namely,
Perfax Cargo and Logistic Courier and at the time of accident, he
was moving in the Pick up van along with courier parcels and the
delivery was destined at Sambalpur. The injured claimant has
examined himself as P.W.1 and categorically stated so. Though
no documentary proof has been adduced by P.W.1 in support of
his contention, but it is seen that no evidence was also adduced by
either of the Insurers to rebut said contention of the injured.
O.P.W. 1 is an official witness working in Oriental Insurance
Company. He has only stated about the terms and conditions of
the insurance policy. Therefore, looking at the statement of PW 1
as well as OPW 1 and specific assertion of the injured claimant to
the effect that he was an employee of the Courier Company and
the offending Pick up van was loaded with courier parcels at the
time of accident, no merit is seen in the contention of Mr.Roy to
treat the injured as a gratuitous passenger. Accordingly, the same
is rejected.
10. With regard to quantum of compensation, it is seen that
the Tribunal has accepted the monthly income of the Injured at
Rs.9,000/- and his functional disability to the extent of 20%.
These aspects are not challenged by any of the parties.
11. What is contended on behalf of the claimant to add
more amounts towards his medical expenses, the same are not
found acceptable in absence of any specific evidence with regard
to medical expenses.
12. It needs to be mentioned here that contribution of
negligence arrived by the Tribunal amongst both the drivers is
found justified in view of police inquiry report and submission of
charge-sheet against both the drivers as well as the fact that the
accident was the result of head on collision between two vehicles.
So no merit is seen in such contention of Mr.Roy to conclude in
other way.
13. In the result, both the appeals are dismissed and
Oriental Insurance Company, the Appellant (in MACA No.284 of
2019), who is stated to have not deposited its share of
compensation amount, is directed to deposit the amount fall due
to his share in terms of the direction of the learned Tribunal along
with interest within a period of two months from today, which
shall be disbursed in favour of the claimant on same terms and
conditions as directed in the impugned judgment. However, the
penal interest @8% is waived.
14. Copies of the depositions and exhibits filed by Mr.Das
in course of hearing are kept on record.
15. The statutory deposit made by the Insurer in MACA
No.284 of 2019 with accrued interest thereon be refunded to him
on proper application and on production of proof of deposit of the
award amount before the learned Tribunal.
( B.P. Routray)
Judge
C.R.Biswal
