Orissa High Court
The Divisional Manager vs Smt. N. Sailama And Others on 27 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.140 of 2019
The Divisional Manager, Oriental
Insurance Company Ltd. .... Appellant
Mr. P.K. Mahali, Advocate
-versus-
Smt. N. Sailama and Others .... Respondents
Mr. S.B. Das, counsel for Respondents 1&2
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
27.10.2022
Order No.
06. 1. The matter is taken up through hybrid mode.
2. Heard Mr. P.K. Mahali, learned counsel for the insurer -
Appellant and Mr. S.B. Das, learned counsel for the claimant -
Respondents 1&2.
3. Present appeal by the insurer is against the impugned judgment
dated 20th November, 2018 of the learned Member, 2nd MACT
(Southern Division), Berhampur, Ganjam passed in MAC Case
No.118 of 2013 (43/2011-GDC) wherein compensation to the tune of
Rs.5,05,000/- along with interest @ 6% per annum from the date of
filing of the claim application, i.e. 3rd February, 2011 has been granted
on account of death of deceased Rushia Patra @ N. Rushia in the
motor vehicular accident dated 21st August, 2010.
4. Mr. Mahali contends on behalf of the insurer that the owner of
the offending motor cycle was the driver and despite having learner's
licence he did not take with him a regular driver and as such violated
the policy condition. Therefore, the insurer is not liable to indemnify
the compensation amount.
5. The accident took place when the deceased was crossing the
road on Zebra Crossing. The owner-cum-driver of the offending
motor cycle, which dashed the deceased, was having learner's licence
at the time of accident. What is contended by Mr. Mahali that the
driver was not accompanied with a regular driver in the motor cycle is
not found established on record. No evidence except a copy of the DL
of the owner has been adduced from the side of the insurer. The
insurer also did not ask anything during cross examination of P.W.1
and P.W.2 to satisfy his contention that no other person was
accompanying the driver.
6. Admittedly, the driver having a learner's licence is neither
unauthorized nor incompetent to drive the motor cycle on public road.
Therefore, in absence of any material to show that he was not
accompanied with a regular driver in the motor cycle, the liability of
the insurer cannot be denied in terms of the policy condition. As such,
no fault is seen in the approach of the tribunal in saddling the liability
on the insurer to indemnify the compensation amount.
7. In the result the appeal is dismissed with a direction to the
insurer - Appellant to deposit the entire compensation amount with
interest before the tribunal within a period of two months from today
where-after the same shall be disbursed in favour of the claimant -
Respondents on the same terms and condition as directed by the
Tribunal. However, the direction regarding payment of default interest
@ 8% is waived.
8. 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.
9. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
