Smt. Jayashri Jena And Others vs P. Murdan And Another
2022 Latest Caselaw 4818 Ori

                         IN THE HIGH COURT OF ORISSA AT CUTTACK

                                     MACA No.728 of 2019
                 Smt. Jayashri Jena and Others            ....          Appellants
                                                         Mr. B. Singh, Advocate
                                            -versus-
                 P. Murdan and Another                    ....        Respondents
                                   Mr. G.P. Dutta, counsel for Respondent No.2

                           CORAM:
                           SHRI JUSTICE B. P. ROUTRAY
                                         ORDER

19.9.2022 Order No.

07. 1. The matter is taken up through hybrid mode.

2. Heard Mr. B. Singh, learned counsel for the claimant - Appellants and Mr. G.P. Dutta, learned counsel for insurer - Respondent No.2.

3. Present appeal by the claimants is against the impugned judgment dated 9th July, 2019 of the learned 3rd MACT, Balasore passed in MAC Case No.113 of 2016 wherein compensation to the tune of Rs.8,38,000/- along with interest @ 7.5% per annum from the date of filing of the claim application, i.e. 28th March, 2016 has been granted on account of death of deceased Jadunath Jena in the motor vehicular accident dated 4th March, 2016.

4. The tribunal upon adjudication has directed the owner to pay the entire compensation amount by exonerating the insurer from the liability.

5. Perusal of the impugned judgment reveals that Issue No.II framed by the tribunal is as follows:-

"2. Whether the deceased died due to a motor vehicular accident due to rash and negligent driving of the driver of the offending vehicle bearing Regn. No.TN-58S-2253 (motor cycle) near Panikuili chhack on Melamandai Sivagangai main road under Tallakulam Traffic Investigation-II PS, Madurai?"

6. But while discussing under Issue No.II, the tribunal did not give any definite finding regarding negligence on the part of the driver of the offending motor cycle. The relevant observation made by the tribunal is reproduced below:-

" XX .. .. XX .. On perusal of the available materials available on record and the injury reports along with the P.M. report, it is seen that the deceased died due to the vehicular accident. The petitioners have claimed that the accident took place due to rash and negligent driving of the rider of the motorcycle which was ridden by one Sukanta Mallik of the same company where the deceased was working."

7. Then at paragraph 10, the tribunal has held that, "in this case the petitioners have neither filed any police paper nor any documents relating to the motorcycle. So, this Tribunal after careful consideration of the materials available on record holds that the OP No.2 is not liable to pay any compensation to the petitioners, rather the OP No.1 being the owner of the motorcycle has permitted the driver to drive the same without any valid documents which caused

the accident. Hence, this Tribunal holds that the OP No.1 is entitled to pay the entire compensation amount to the petitioners."

8. The aforesaid observations of the tribunal clearly reveals that the tribunal has failed to determine negligence aspect on the driver of any one of the vehicles, or both, despite evidences adduced on record. Accordingly the matter is remanded back to the tribunal to decide the negligence aspect as framed under Issue No.II afresh as per the materials already available on record. The tribunal after giving his finding on Issue No.II shall send the same to this court.

9. A copy of this order be communicated to the learned tribunal without delay.

10. List the matter on 6th December, 2022.

( B.P. Routray) Judge M.K.Panda