Orissa High Court
Iffico-Tokio General Insurance ... vs Bishnu Priya Baral And Others on 5 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.538 of 2020 & MACA No.454 of 2020
(From the order dated 24th February, 2020 passed by the 3rd Motor
Accident Claims Tribunal, Bhubaneswar, in M.A.C. Case No.3289 of
2014)
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MACA No.538 of 2020
IFFICO-TOKIO General Insurance Co. Ltd....... Appellant
Versus
Bishnu Priya Baral and others ....... Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr.A.A.Khan, Advocate
For Respondents : Mr.P.K.Mishra, Advocate
(For Respondent No.1 to 5)
AND
MACA No.454 of 2020
Bishnu Priya Baral and others ...... Appellants
Versus
Manas Ranjan Swain and another ....... Respondents
Advocate(s) appeared in this case:-
For Appellants : Mr.P.K.Mishra, Advocate
Signature Not Verified
Digitally Signed
For Respondents : Mr.A.A.Khan, Advocate
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
(For Respondent No.2)
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 06-Jul-2023 18:30:26
MACA No.538 of 2020 & MACA No.454 of 2020 Page 1 of 5
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
5th July, 2023
B.P. Routray,J.
1. Heard Mr.Khan, learned counsel for the Insurance
Company i.e. IFFCO-TOKIO General Insurance Co. Ltd. and
Mr.Mishra, learned counsel for the Claimants.
2. It is submitted that during pendency of the appeal claimant
no.5, namely Basant Baral in MACA No.454 of 2020 and Respondent
No.6 in MACA No.538 of 2020, died on 7th November 2021 and as
such, it is prayed to delete his name since all other L.Rs are already on
record.
3. Both the appeals arise out of the same judgment dated 24th
February, 2020 passed by the learned 3rd M.A.C.T., Bhubaneswar in
M.A.C. Case No.3289 of 2014, wherein compensation to tune of
Rs.12,04,000/- along with interest @7% per annum has been granted
from the date of filing of the claim application on account of death of
the deceased in the motor vehicular accident dated 15th April, 2014.
4. It is submitted by Mr.Khan on behalf of the Insurer that
legal liability for the deceased is not covered as per the terms of
Insurance Policy and so, the Insurer is not liable to indemnify the
compensation amount. It is further submitted that the deceased, namely,
Trinath Baral was travelling in the offending Eichar Van bearing
Signature Not Verified
Digitally Signed
Registration No.OD-07B-7752 as an additional driver in addition to one
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Manas Chandra Jena, the driver of the said vehicle, who also died in the
Location: Orissa High Court, Cuttack
Date: 06-Jul-2023 18:30:26
same accident. The Workmen Compensation Case was filed by the L.Rs
of said Manas Chandra Jena and award was made in their favour.
5. On the other hand, MACA No.454 of 2020 has been filed
by the claimants praying for enhancement of the compensation amount
on the ground that no amount towards parental consortium has been
granted to the children.
6. First dealing with the objection raised on behalf of the
Insurer, it is relevant to refer the conditions of the policy. As per the
copy of the policy under Ext.B, premium for legal liability, as per IMT
28, has been paid for three persons @Rs.50/- for one person. IMT 28
specifies legal liability for the driver, conductor and cleaner employed in
connection with operation of the vehicle, in respect of personal injury or
death.
7. In the instant case, the admitted position remains that the
deceased Trinath Baral was employed as an additional driver in the
offending vehicle along with other deceased, namely, Manas Chandra
Jena. It also remains admitted that at the time of accident Manas
Chandra Jena was on wheels and Trinath Baral was in the cabin.
Admittedly, the Insurance Company has received premium of Rs.150
for three persons towards legal liability. The status of the deceased as an
additional driver is admitted and he was inside the vehicle though
Manas Chandra Jena was on the driver seat. No other person except two
deceased persons was present in the vehicle. So as an employee of the
Signature Not Verified
vehicle, legal liability in respect of the deceased is covered in terms of
Digitally Signed
the Insurance Policy since the premium for three persons employed in
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
connection with the vehicle has been accepted. The vehicle is a goods
Location: Orissa High Court, Cuttack
Date: 06-Jul-2023 18:30:26
carriage vehicle, where engagement of conductor and cleaner is
insignificant. Moreover, engagement of additional driver in long-run
goods carriage vehicles is very common. Therefore, the words
"Conductor & Cleaner" specified in IMT 28 can be interpreted to
include one additional driver employed in connection with the use of
vehicle. Thus, the submissions made on behalf of the Insurer that the
deceased cannot be treated either as a driver or conductor or cleaner is
found unacceptable. Since the legal liability is within the permissible
limit of three persons, the employment of the deceased as the additional
driver in the vehicle cannot be said as beyond the liability under IMT
28. Hence, the finding of the Tribunal to saddle the liability on the
Insurance Company is confirmed.
8. Next on the question of quantification of compensation
amount, no reason is seen in favour of the Insurance Company to reduce
the same, but on the other hand, it is seen that the Tribunal has failed to
grant adequate amount towards general damages skipping the amount
liable to be added towards loss of parental consortium. There are three
minor children of the deceased, who are certainly entitled for parental
consortium. Adding Rs.1,20,000/- on that count, the compensation
amount is enhanced to Rs.13,24,000/-, payable along with interest @6%
per annum.
9. In the result, the appeals are disposed of with a direction to
the Insurer i.e. IFFCO-TOKIO General Insurance Co. Ltd. to deposit the
compensation amount of Rs.13,24,000/-(Thirteen lakh twenty four
Signature Not Verified
Digitally Signed thousand) along with interest @6% per annum from the date of filing of
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication the claim application within a period of two months from today, which
Location: Orissa High Court, Cuttack
Date: 06-Jul-2023 18:30:26
shall be disbursed in favour of the claimants, except claimant-Appellant
No.5, in MACA No.454 of 2020. The direction for payment of penal
interest @8% is waived.
10. The statutory deposit made by the Appellant in MACA
No.538 of 2020 along 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.
11. The copies of policy as produced by in course of hearing
are kept on record.
12. Urgent certified copy of this order be granted on proper
application.
(B.P. Routray)
Judge
C.R.Biswal, Secy.
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 06-Jul-2023 18:30:26
