Orissa High Court
The Divisional Manager vs Smt. Sarmila Kumari Swain And ... on 6 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.379 of 2021
The Divisional Manager, Oriental .... Appellant
Insurance Company Ltd.
Mr. G.P. Dutta, Advocate
-versus-
Smt. Sarmila Kumari Swain and others .... Respondents
Mr. D. Mohapatra, Advocate for Respondent Nos.1 to 4
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
06.09.2022
Order No.
06. 1. Heard Mr. G.P. Dutta, learned counsel for the Appellant-
Insurance Company and Mr. D. Mohapatra, learned counsel for
the Respondent Nos.1 to 4-claimants.
2. Present appeal by the insurer is directed against the judgment
dated 31.08.2021 of the learned 8th MACT, Aska in M.A.C. Case
No.569 of 2014 wherein compensation to the tune of
Rs.8,43,000/- has been granted along with simple interest @5%
per annum to the claimants from the date of filing of the claim
application, i.e.28.01.2013.
3. The deceased though has died, but the learned Tribunal
granted compensation on account of injury sustained by him in
the accident.
4. Mr. G.P. Dutta, learned counsel for the Appellant-Insurance
Company contends that in absence of any material with regard to
the amount of expenses counted by the learned Tribunal towards
attendant charges and special diet is liable to be reduced.
5. Mr. D. Mohapatra, learned counsel for the Respondent Nos.1
to 4-claimants submits that despite their case that the deceased
died due to comma after 10 years of the accident, but the learned
Tribunal disbelieved such death of the deceased connected with
the nature of injuries and only granted compensation on account
of sustenance of injury.
6. It reveals from the impugned judgment that the learned
Tribunal has granted compensation of Rs.4,80,000/- towards
attendant's cost, Rs.2,43,405/- towards medical expenditure,
Rs.20,000/- towards conveyance charges and Rs.1,00,000/-
towards special diet, totaling to Rs.8,43,000/-.
7. It appears on perusal of the impugned judgment that the
learned Tribunal though under Issue No.2 has concluded that the
claimants have failed to establish any connection between death
of the deceased and the injuries sustained by him in the accident
and as such denied to grant any compensation for the same. But
subsequently while discussing under Issue Nos.3 & 5, the learned
Tribunal has opined that it is forthcoming from the treatment
papers that the deceased sustained head injuries and hemeplegia
and was in vegetative stage till his death being confined to the
bed for last 10 years. It needs to be mentioned here that the
deceased died on 10.2.2021 when the date of accident is
11.10.2011. Therefore, the findings of the learned Tribunal given
under Issue No.2 and Issue Nos.3 & 5 are seen contradictory
regarding death of the deceased arising out of the injuries
sustained in the accident. However, in absence of any challenge
from the side of the claimants, this Court refrains from further
interfering with the same and only confines to the challenges
advanced by the insurer.
8. Now coming to see the disability certificate under Ext.9 and
the medical documents produced on record coupled with the
consistent oral evidence of the claimants that the deceased was in
continuous vegetative stage for last 10 years till his death, the
amount of Rs.4.80,000/- granted towards attendant's cost cannot
be faulted with. Similarly the amount of Rs.1,00,000/- granted
towards special diet cannot be said as excessive.
9. It is next contended by Mr. Dutta that the offending
motorcycle bearing Registration No.OD-07-2006 was not
registered before the competent authority on the date of accident
though the insurance policy obtained on the basis of engine
number and chasis number in respect of the said vehicle was valid
on the date of accident. In the instant case, the claim is against 3 rd
party and therefore in the opinion of this Court non-registration of
the vehicle was immaterial for the purpose since the insurance
policy was valid.
10. At the same time since the registration of the vehicle is a
mandatory requirement for plying of the same on the public road,
violation of the same is treated as breach of policy conditions for
which the insurer is entitled for right to recover the amount from
the owner. Accordingly, the right of recovery is granted in favour
of the insurer.
11. However, the penal interest @12% as directed by the learned
Tribunal is waved.
12. In the result, the appeal is disposed of confirming the
direction of the learned Tribunal towards grant of compensation
to the claimants by the insurer-Appellant with such terms and
conditions as contained in the impugned judgment. Further, as
prayed on behalf of the Appellant, it is open for him to seek such
right of recovery from the owner of the vehicle in accordance
with law after affording opportunity of hearing to the owner.
13. On deposit of the award amount by the insurer before the
learned Tribunal and filing of a receipt evidencing the deposit
with refund applications before this Court, the statutory deposit
made before this Court with accrued interest thereon shall be
refunded to the insurer.
14. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
