Orissa High Court
Oriental Insurance Company Ltd vs Gopinath Das And Others on 13 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.620 of 2022
Oriental Insurance Company Ltd.,
represented by the Divisional Manager .... Appellant
Mr. P.K. Mahali, Advocate
-versus-
Gopinath Das and Others .... Respondents
Mr. P.K. Mishra, counsel for Respondents 1-6
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
13.4.2023
Order No.
I.A. No.1310 of 2022
01. 1. The matter is taken up through hybrid mode.
2. Mr. P.K. Mahali, learned counsel for the insurer - Appellant
submits that the deficit court fee has already been paid on 6th April,
2023. Accordingly the same is accepted on record and the I.A. is
disposed of.
MACA No.620 of 2022
02. 3. Heard Mr. P.K. Mahali, learned counsel for the Appellant and
Mr. P.K. Mishra, learned counsel for the claimant - Respondents.
4. The delay pointed out in the stamp reporting is ignored keeping
in view the copy period.
5. Present appeal by the insurer - Appellant is directed against
impugned judgment dated 22nd July, 2022 of learned 4th MACT,
Cuttack passed in MAC Case No.246 of 2016, wherein compensation
to the tune of Rs.29,57,401.06/- along with interest @ 6% per annum
from the date of filing of the claim application, i.e. 18th April, 2016
has been granted on account of death of deceased Amit Kumar Das in
the motor vehicular accident dated 5th February, 2016.
6. Mr. Mahali contends that the offending vehicle, i.e. motor cycle
bearing registration number OD-05-3597 has been falsely implanted
in the accident though not involved. In support of his contention he
relies on the entries made in the inquest report under Ext.8. According
to Mr. Mahali, the F.I.R. was lodged after fifteen days of the accident
and nothing regarding involvement of the offending motor cycle in the
accident was mentioned in the inquest report prepared in the U.D.
Case registered by police.
7. The facts of the case as per the claimants are that while the
deceased along with another was going in the motor cycle bearing
registration number OD-05W-8725, the offending motor cycle came
from behind rash and negligently with high speed and dashed against
their motor cycle. As a result of the same the deceased along with his
friend and their motor cycle fell into a road side ditch. Both of them
sustained severe injuries and were succumbed in the hospital.
8. The accident took place on 5th February 2016. Initially Bidanasi
Police registered UD Case No.17 dated 15th February 2016 and
subsequently Mancheswar P.S. Case No.51 dated 19th February 2016
was registered for commission of offences under Section 279/304-A
of I.P.C. The inquest report as relied on by Mr. Mahali to substantiate
his contention was prepared in the police UD case and merged in
subsequent Mancheswar P.S. case. Admittedly, the police upon
completion of investigation submitted the charge-sheet against
accused driver of the offending motor cycle for his criminal
prosecution. Therefore, the contention put-forth by Mr. Mahali to rely
on the inquest reports prepared in the initial UD Case is found without
merit. Further, the eye witness of the accident was examined as P.W.2
from the side of the claimants and his evidence could not be
sufficiently rebutted in his cross-examination to discard involvement
of the offending motor cycle as contended by the Appellant. It is
important to note here that the witnesses who have made their
endorsements at column 9 of the inquest report were admittedly not
the eye witnesses. O.P.W.1, who is the I.O. of the UD case, and
examined from the side of the insurer has stated in favour of the
claimants in his cross-examination. Considering all such facts, the
submissions made on behalf of the Appellant are rejected and the
finding of the tribunal regarding involvement of offending vehicle in
the accident is confirmed.
9. On the question of quantification of compensation amount, no
merit is seen in favour of the insurer to reduce the same. Learned
tribunal by adopting all settled procedures has quantified the
compensation amount and no reason is found to interfere with the
same.
10. In the result the appeal is disposed of with a direction to the
insurer - Appellant to deposit the entire compensation amount before
the tribunal along with interest as per its direction 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
proportion as contained in the impugned judgment. The direction of
the tribunal for payment of penal interest @ 12% is waived.
However, as prayed on behalf of the Appellant, it is open for it
to seek such right of recovery, if recoverable, from the owner of the
vehicle in accordance with law after affording opportunity of hearing
to the owner keeping in view the fact that the right of recovery has
already been granted in the connected claim case, i.e. MAC No.247 of
2016 (MACA No.297 of 2021).
11. The statutory deposit made by the appellant - insurer before
this court along with accrued interest thereof be refunded on proper
application and on production of proof of deposit of the awarded
amount before the tribunal.
12. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
