Orissa High Court
Divisional Manager vs Nihar Kumar Chatterjee And Others on 8 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.227 of 2018
Divisional Manager, .... Appellant
M/s. National Insurance Company Ltd.
Mr.B.N.Udgata, Advocate
-versus-
Nihar Kumar Chatterjee and others .... Respondents
Mr.K.C.Nayak Advocate for Respondent No.2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
08.09.2022
Order No.
9. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Udgata, learned counsel for the Appellant
and Mr.Nayak, learned counsel for the claimant-Respondent
No.1.
3. It is submitted that Respondent No.1, Nihar Kumar
Chatterjee died in the meantime and Respondent No.3, Bikash
Rout, owner of the offending vehicle was already dead prior to
filing of the claim application.
4. Mr.Nayak submits that Respondent No.2 being the sole
legal heir of Respondent No.1 and the deceased, no further
substitution is required.
5. Present appeal by the Insurer-Appellant is directed
against the judgment dated 20th November, 2017 passed by
learned 1st Addl. District Judge-cum-1st M.A.C.T., Cuttack in
M.A.C. Case No.997 of 2004, wherein compensation to the tune
of Rs.4,27,000/- has been granted along with interest @ 6% per
annum with effect from the date of filing of the claim application
on account of death of deceased-Sanjib Chatterjee in the motor
vehicular accident dated 14th February, 2004.
6. The main contention of Mr.Udgata, learned counsel for
the Appellant is that two motor cycles bearing registration
no.OR-05-Q-1923 (Yammaha) and OR-05-M-5503(Hero Honda)
were involved in the accident. The deceased was the pillion rider
of the Hero Honda Motorcycle, which was driven by other
injured namely, Ajoya Kumar Ojha. The police filed F.R.T.
closing investigation due to death of the drivers of both the
motorcycles and therefore, it is established that the present
deceased Sanjib Chatterjee was driving the Hero Honda
Motorcycle and Bikash Rout, the other deceased was driving the
Yamaha Motorcycle. Therefore, the negligence on the part of the
driver of the Yamaha motorcycle is not established. As such, the
Appellant being Insurer of the Yamaha Motorcycle is not liable to
indemnify the compensation amount.
7. Admittedly, the insurer did not examine any witness on
its' behalf and only relies on the copies of the police papers like,
F.I.R., Final Form etc to substantiate his contentions. On the
other hand, the claimants examined two witnesses who are the
mother of the deceased and the other injured eyewitness as
P.Ws.1 & 4 respectively.
8. P.W.2 - the injured eyewitness has categorically stated
that he was driving the motorcycle while the deceased was the
pillion rider of the Hero Honda Motorcycle. Such assertions of
P.W.2 are not rebutted in his cross-examination nor could any
such statement be elicited from him to disbelieve his evidence.
9. As seen from the copy of the Final Form, F.R.T. was
submitted stating the drivers of both the motorcycles died in the
accident. This does not imply that both the drivers were negligent
in causing the accident equally or any one of the drivers alone.
Secondly, it is consistent evidence of the claimant that the injured
Ajoya Kumar Ojha (P.W.2) was driving the Hero Honda
Motorcycle and not Sanjib Chatterjee, the deceased. Neither
party did choose to examine the informant. The informant was
also not an eyewitness to the accident as evident from recitals of
the F.I.R. Therefore the evidence of P.W.2, who admittedly is the
eyewitness, cannot be brushed aside without any rebuttal material
and his evidence cannot be disbelieved. Moreover, any opinion
mentioned in the Final Form submitted by the police has no
evidentiary value.
10. In such circumstances, the conclusion establishing the
negligence on the part of the driver of the Yamaha Motorcycle
cannot be faulted with. As such, the contention of the Insurer-
Appellant is rejected to that effect.
11. No serious dispute is raised regarding quantum of
compensation. The deceased was an unmarried boy aged about 26
years and admittedly no particular source of his income could be
established through evidence. The Tribunal has thus assessed his
income at Rs.2,500/- per month notionally. This is not questioned
by the claimants. As such, no reason is seen to interfere with the
quantum of compensation.
12. Resultantly, the appeal is dismissed with a direction to
the Appellant to deposit the entire compensation amount
including interest within a period of two months from today;
where-after the same shall be disbursed in favour of the claimant-
Respondent No.2 - Tandra Rani Chatterjee on such terms and
proportion to be fixed by the Tribunal. However, penal interest
of 12% as directed by the Tribunal is waived.
13. The statutory deposit made by the Appellant 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.
14. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal
