Orissa High Court
The Divisional Manager vs Ravindra Gadaba And Others on 1 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.62 of 2021
(From the judgment dated 7th March, 2020 passed by the learned
M.A.C.T.-III, Malkangiri in M.A.C. Case No.19/2018)
The Divisional Manager, Oriental .... Appellant
Insurance Co. Ltd.
-versus-
Ravindra Gadaba and others .... Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr. P.K. Mahali, Advocate
For Respondents : Mr. S.B. Das, Advocate
For Respondent Nos.1 to 3
Mr. K. Panigrahi, Advocate
For Respondent No.4
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
st
1 February, 2023
B.P. Routray, J.
1. Present appeal by the insurer, i.e. Oriental Insurance Co. Ltd. is
directed against judgment dated 7th March, 2020 passed by the learned
M.A.C.T.-III, Malkangiri in M.A.C. Case No.19/2018, wherein
compensation to the tune of Rs.9,44,800/- has been granted along with
interest @7% per annum to the claimants from the date of filing of the
claim application, i.e. 05.11.2018 on account of death of the deceased,
namely, Ratha Gadaba in the motor vehicular accident dated
11.10.2018.
2. Mr. Mahali, learned counsel for the Appellant-Insurance
Company focused on contributory negligence on the part of the driver
of the motorcycle, who is the deceased. He contends that since three
persons were riding the motorcycle at the time of accident,
contributory negligence is presumable on the driver as well as the
pillion riders of the motorcycle for violation of Section 128 (1) of the
M.V. Act. In support of his contention, Mr. Mahali relies on the
decision of the Hyderabad High Court in the case of Cholamandalam
M.S. General Insurance Company Limited vs. Mamidisetti Satish
and others, (2015) 2 AnWR 44. In the said case, three persons while
riding a scooter met with an accident against a Toyota Innova Car. The
learned Single Judge of Hyderabad High Court by drawing
presumption, attributed contributory negligence to the extent of 25%
on the driver of the scooter as three persons were riding it.
3. In the case at hand, the fact remains that three persons were
riding the motorcycle which met accident with one Tata Pick Up
vehicle bearing Registration No.OD-30-B-6700 and in the accident all
three riders of the motorcycle died.
4. Two witnesses were examined from the side of the claimants and
the documents like FIR, Police investigation report etc were adduced in
support of their case. On the other hand, no evidence was adduced
from the side of the insurer, either to bring the negligence on the driver
of the motorcycle or on the question of liability to indemnify the
compensation.
5. According to P.W.2 - the eye-witness, the driver of Tata Pick
Up vehicle was completely negligent in causing the accident as the
same was driven in rash and negligent manner. This evidence of P.W.2
is not rebutted sufficiently in his cross-examination.
6. In the case of Devi Singh vs. Vikram Singh and others, AIR
2008 MP 18, the Full Bench of Madhya Pradesh High Court have held
that mere violation of the provisions contained in Section 128 of the
M.V. Act does not per se constitute contributory negligence either on
the part of the driver of the motorcycle or the pillion riders.
7. It is true that at the time of accident, three persons were riding
the motorcycle and they all died in the accident. Section 128 of the
M.V. Act prohibits carrying of more than two persons in a two-wheeler
motorcycle. But to draw the presumption of negligence for violation of
the provision to contribute negligence on the part of the driver,
particularly in absence of any material brought on record, is not
conceivable and with due respect, this Court disagrees with the view
expressed by the learned Single Judge of Hyderabad High Court in the
case of Mamidisetti Satish (supra) relied on by learned counsel for the
Insurance Company. It is important to mention here that to draw a
presumption of fact, materials must be brought on record, and mere
violation of the statutory provision does not authorize the Court to
draw such presumption of negligence. Establishment of negligence,
whether contributory or wholly is a question of fact and the same
cannot be satisfied by drawing presumption for violation of statutory
provision.
8. Thus this Court is in agreement with the view expressed by the
Full Bench of the Madhya Pradesh High Court and declines to draw
any presumption against the deceased driver of the motorcycle in
absence of any material. It is observed that violation of the provisions
contained in Section 128(1) of the M.V. Act, by riding three persons in
a motorcycle, would not per se attract the presumption of contributory
negligence on the part of the driver or pillion rider of the motorcycle.
Accordingly, the contentions raised by Mr. P.K. Mahali in this regard
to contribute negligence on the part of the deceased are rejected.
9. Next coming to the quantum of compensation, it is submitted by
Mr. Mahali that in another case arising out of the same accident, the
Tribunal while granted interest @6%, directed in the present case for
payment of interest @7%, which should be reduced to 6% accordingly.
10. Upon perusal of the impugned judgment, neither any flaw is
seen on the question of liability on the Insurance Company nor any
point is seen to interfere with the amount of compensation directed to
be paid by the Insurer. As such, the direction of the learned Tribunal to
pay the compensation amount of Rs.9,44,800/- is confirmed. However,
the rate of interest is reduced to 6% against 7%.
11. At this stage, Mr. Mahali submits that entire compensation
amount along with interest as directed by the Tribunal has already been
deposited before the Tribunal pending appeal pursuant to the direction
of this Court dated 22.06.2021.
12. In the result, the appeal is disposed of with a direction to learned
Tribunal to disburse the entire compensation amount deposited before
it by calculating the interest @6% on the same, i.e. Rs.9,44,800/- +
interest @6% from 05.11.2018, and refund the balance amount, if any,
to the insurer. The amount shall be disbursed in favour of the
claimants-Respondents No.1 to 3 on such terms and proportion to be
fixed by the learned Tribunal.
13. The statutory deposit made by the Appellant with accrued
interest thereon be refunded to him on proper application.
(B.P. Routray)
Judge
B.K. Barik/Secretary
