Orissa High Court
Sk. Tarun Bibi And Others vs Pratap Kishore Nayak And Another on 7 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.266 of 2014 & MACA No.125 of 2014
In MACA No.266 of 2014
Sk. Tarun Bibi and others .... Appellants
Mr. B.N. Samantaray, Advocate
-versus-
Pratap Kishore Nayak and another .... Respondents
Mr. P.K. Panda, Advocate for Respondent No.2
In MACA No.125 of 2014
Sanjukta [email protected] and others .... Appellants
Mr. K.C. Nayak, Advocate
-versus-
Pratap Kishore Nayak and another .... Respondents
Mr. P.K. Panda, Advocate for Respondent No.2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
07.09.2022
Order No.
MACA No.266 of 2014 & MACA No.125 of 2014
09. 1. Heard Mr. B.N. Samantaray, learned counsel for the
Appellants-claimants in MACA No.266 of 2014, Mr. K. C.
Nayak, learned counsel for the Appellants-claimants in MACA
No.125 of 2014 and Mr. P.K. Panda, learned counsel for the
Respondent No.2-Insurance Company in both the appeals.
2. Both the appeals being arise out of the same judgment dated
20.01.2014 of the learned 1st MACT, Cuttack are heard together
and disposed of by this common order.
3. Initially two claim applications were filed by two sets of
claimants for the death of the same deceased in the motor
vehicular accident dated 19.01.2006 involving the offending mini
truck bearing Registration No.OR-04-7251.
4. MAC No.03 of 2007 was filed by Sk. Tarun Bibi and five
others (Appellants in MACA No.266 of 2014) before the learned
1st M.A.C.T., Kendrapara which was subsequently transferred to
the file of 1st M.A.C.T., Cuttack as per the direction of this Court
in TRP(C) No.78 of 2009 and renumbered as MAC No.1102 of
2012 on the file of learned 1st M.A.C.T., Cuttack.
On the other hand, Sanjukta [email protected] and four
others (Appellants in MACA No.125 of 2014) filed MAC No.296
of 2006 before the learned 1st M.A.C.T., Cuttack.
5. Sk. Tarun Bibi and others described the deceased as late
Chandan [email protected]@Dabiruddin, s/o-Sk. Dabir whereas
Sanjukta [email protected] and others described the deceased as
late Arakshita Nayak, s/o-Bhikari Nayak. But the common case
of both set of claimants is that the deceased died on 19.1.2006 in
the motor vehicular accident involving the offending mini truck.
6. The learned Tribunal as per discussion under Issue No.2,
rejected the contention of Sk. Tarun Bibi and others that they are
not the dependants of the deceased in absence of any material
proof adduced from their side to justify their contentions
regarding identification of the deceased as Alliruddin @
Dabiruddin, which is the subject matter of challenge in MACA
No.266/2014.
7. Mr. B.N. Samantaray, learned counsel for the Appellant-
claimants in MACA No.266 of 2014 submits that the learned
Tribunal illegally came to such conclusion despite the oral
evidence adduced on behalf of Sk. Tarun Bibi and her brother Sk.
Mohammad Ali as P.W.1 & 2 respectively in MAC Case
No.1102 of 2012.
8. As seen from the impugned judgment, learned Tribunal has
discussed the claim of Sk. Tarun Bibi and others in detail and
come to the finding that in absence of any documentary proof and
in absence of any substantial evidence with regard to
identification of the deceased as Alliruddin @ Dabiruddin and in
view of the established facts brought in respect of other set of
claimants like death certificate, legal heir certificate as well as the
police papers, such contention raised by them is not established to
accept Sk. Tarun Bibi and others as dependants of the deceased.
In the opinion of learned Tribunal, the name of the deceased was
Arakshita Nayak, S/o-Bhikari Nayak.
9. Nothing could be produced in course of hearing of the present
appeal to justify such contention of Sk. Tarun Bibi and others that
they were the dependants of the deceased or they were any way
related to him as dependants. The documents like death certificate
and legal heir certificate under Exts.8 & 9 proves the contention
of Sanjukta Nayak & others to the satisfaction that the deceased
was late Arakshita Nayak. Therefore, no merit is seen in the
challenge advanced by the Appellants in MACA No.266/2014
which is accordingly dismissed.
10. Next coming to the challenge advanced in MACA
No.125/2014, Mr. K.C. Nayak, learned counsel for the Appellants
submits that the Tribunal while granting compensation has
directed the same to be paid by the owner by exempting the
insurer. Mr. Nayak further submits that learned Tribunal has
erroneously exempted the insurer with the opinion that the
deceased was a gratuitous passenger despite the case of the
claimants that the deceased was moving as the owner of the
goods.
11. Mr. P.K. Panda, learned counsel for the Insurance Company
on the other hand submits that the deceased was in fact moving in
the offending mini truck as a gratuitous passenger and therefore
the conclusion of the learned Tribunal is justified and should not
be interfered with.
12. It reveals from the discussions made by the Tribunal under
Issue No.3 in the impugned judgment that, it accepted the
deceased as a gratuitous passenger in absence of evidence from
the side of the claimants to show the deceased as the owner of
goods since it was admitted by Sanjukta Nayak in her evidence
that the deceased had not reserved the mini truck at the time of
accident.
13. On perusal of the impugned judgment as well as copy of the
police papers, produced in course of hearing, reveal that at the
time of accident only 4 to 5 persons were there in the Dala of the
truck along with the ice cubes. The consistent case of the
claimants is to the effect that the deceased was moving in the
mini truck with fish bags which was capsized causing the
accident and resultant death of the deceased. Travelling of the
deceased with his fish bags in the offending truck at the time of
accident is fortified from the fact of seizure of ice pieces by
police. The reasoning assigned by the Tribunal that Sanjukta
Nayak (P.W.1) has denied about reservation of the offending
truck at the time of accident does not appear rational since the
fact of carrying of fish bags by the deceased at the time of
accident was not disputed and it is admitted that the offending
vehicle was a goods carriage vehicle and ice pieces were there in
the truck at the time of accident. The insurer has not brought any
separate case that the offending vehicle was carrying anything
other than the goods claimed by the applicants. As such, in
absence of any rebuttal evidence, the contention of the claimants
that the deceased was moving in the offending truck as the owner
of the goods is found established. Accordingly, the finding of the
learned Tribunal that the deceased was moving as a gratuitous
passenger is set aside.
14. The validity of the insurance policy in respect of the
offending truck on the date of accident being not disputed, the
insurer Respondent No.2-New India Assurance Co. Ltd. is held
liable to indemnify the compensation amount on behalf of the
owner. It is accordingly ordered.
15. The claimants-Appellants do not raise any dispute with regard
to the quantum of compensation.
16. In the result, MACA No.125 of 2014 is allowed and the
insurer-Respondent No.2 is directed to deposit the entire
compensation amount along with interest in terms of the direction
of the Tribunal within a period of two months from today, where-
after the same shall be disbursed among the Appellants-claimants
in MACA No.125 of 2014 (claimants in MAC No.296 of 2006
before the learned Tribunal) on such terms and proportion as
contained in the impugned judgment.
17. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
