Orissa High Court
The Manager Claims vs Basanti Swain And Others on 15 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.714 of 2018
The Manager Claims,
M/s.Bajaj Allianz General Insurance
Company Limited. .... Appellant
Mr.A.A.Khan, Advocate
-versus-
Basanti Swain and others .... Respondents
Mr.K.Panigrahi, Advocate for Respondent Nos.1 & 2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
15.3.2023
Order No.
8. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Khan, learned counsel for the Appellant-
Insurer and Mr.Panigrahi, learned counsel for claimants-
Respondent Nos.1 & 2.
3. Present appeal by the Insurer is directed against the
judgment dated 20th March, 2018 of the IIIrd M.A.C.T.,
Bhanjanagar in M.A.C. Case No.53 of 2017, wherein
compensation to the tune of Rs.10,06,000/- has been granted
along with interest @7% per annum with effect from the date of
filing of the claim application on account of death of the deceased
in the motor vehicular accident on 19th January, 2017.
4. Mr.Khan submits that the deceased was travelling in
the offending vehicle i.e., Tractor and trailer bearing registration
no.OD-32A-0587 & OD-32A-0594 as a gratuitous passenger and
therefore, the Insurer is not liable to indemnify the compensation
amount.
5. It is seen that two witnesses viz. P.Ws.1 & 2 were
examined from the side of the claimants and one witness viz.
O.P.W.1 was examined from the side of the Insurer. The owner
though filed his written statement but did not adduce any
evidence.
6. According to P.Ws.1 & 2, the deceased was working as
a labourer in the offending vehicle and travelling as such at the
time of accident. The contention raised by the Insurer to dispute
his status as a labourer is based on the evidence of O.P.W.1, an
Officer of the Insurance Company. P.W.1 is the wife of the
deceased and P.W.2 is an independent eye-witness to the
accident. The statements of those two witnesses regarding status
of the deceased as a labourer has been confirmed in their cross-
examination and nothing substantial could be elicited by the
Insurer to rebut the same. On the other hand, O.P.W.1 has no
direct knowledge either on the accident or on the avocation of the
deceased. Therefore the contention of the claimants describing
the deceased as the labourer is fully substantiated by the evidence
adduced from the side of the claimants and also found supportive
from the police papers. Thus, the finding of the Tribunal to accept
the deceased as a labourer of the offending vehicle is confirmed.
The contention of the Appellant-Insurer to the contrary is thus
rejected.
7. With regard to quantum of compensation, considering
all such grounds of challenge advanced by Mr.Khan, a reduced
compensation of Rs.9,70,000/- along with interest @6% per
annum is proposed to the parties in course of hearing. This is
agreed by Mr.Panigrahi, learned counsel for the claimants.
Mr.Khan, learned counsel for the Insurer leaves it to the
discretion of the Court. As such, the amount is fixed to that
extent.
8. The Insurer-Appellant is directed to deposit the
reduced compensation of Rs.9,70,000/-(Nine lakhs seventy
thousand) before the Tribunal along with interest @6% per
annum from the date of filing of the claim application within a
period of two months from today; where-after the same shall be
disbursed in favour of the claimants on such terms and proportion
to be fixed by the Tribunal. However, the penal interest of 9%, as
directed by the Tribunal, is waived.
9. With aforesaid modification in the compensation
amount, the appeal is disposed of.
10. 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.
11. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal
