Divisional Manager vs Brajeswari Bhosagar & Ors
2023 Latest Caselaw 11610 Ori

Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 27-Sep-2023 18:13:18




                                          IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                       MACA No.105 of 2023

                                 Divisional Manager, M/S. Oriental          ....         Appellant
                                 Insurance Co.Ltd.
                                                                        Mr.P.K.Mahali, Advocate

                                                             -versus-

                                 Brajeswari Bhosagar & Ors.             ....      Respondents
                                           Mr. A.C.Behera, Advocate for Respondent Nos. 1& 2
                                             Mr.S.Sahoo, Advocate for owner-Respondent No.3

                                            CORAM:
                                            JUSTICE B. P. ROUTRAY
                                                           ORDER

25.09.2023 Order No.

04. 1. The matter is taken up through Hybrid mode.

2. Heard Mr.Mahali, learned counsel for the Appellant, Mr.Behera, learned counsel for Respondent Nos. 1 & 2 and Mr. Sahoo, learned counsel for the owner-Respondent No.3.

3. Present appeal by the Insurer is directed against judgment dated 23rd November, 2022 of Additional District Judge-cum-3rd MACT, Bargarh passed in M.A.C. Case No.129/02 of 2015-21, wherein compensation to the tune of Rs.5,00,000/- 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 27th February, 2015.

4. Entire contention advanced by Mr.Mahali, learned counsel for the Insurer is that the owner himself was driving the

Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Sep-2023 18:13:18

offending vehicle at the time of accident without having a valid driving license.

5. It is seen that the police upon completion of investigation has submitted the charge-sheet against the owner of the vehicle namely, Lalit Bhosagar as the driver of the vehicle at the time of accident. The offending vehicle is the Indica Car bearing registration No.OD-17-C-9900. But the owner- Respondent denied the same and contested the case by adducing evidence. As per the owner, he was not driving the offending vehicle at the time of accident, but his driver namely, Kshitipati Kandher was driving the offending vehicle. The owner examined himself as O.P.W.1 and his driver as O.P.W.2.

6. The deceased was a minor girl child. At the time of accident she was going with her mother, P.W.2. P.W.2 in her evidence has stated that though initially she did not had any idea as to who was driving the vehicle, but subsequently she ascertained that it was driven by Lalit Bhosagar, who is her fellow villager. On the other hand, it is the consistent evidence of O.P.W.1 & 2 that Kshitipati Kandher (O.P.W.2) was driving the offending vehicle at the time of accident. A thorough perusal of the evidences of P.W.2, O.P.W.1 & O.P.W.2 gives the inference that P.W.2 was not sure about the driver of the vehicle and she ascertained about the same from other persons, whereas it is the admission of O.P.W.2 that he himself was driving the vehicle at the time of accident. The admission of O.P.W.2 is supported by the statements of O.P.W.1. Thus, weighing the materials on the principles of preponderance of probability, what is stated by

Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Sep-2023 18:13:18

O.P.W.2 is found more probable against the statement of P.W.2 and the findings of police in the investigation report.

7. As such, the conclusion of the Tribunal that the owner namely, Lalit Bhosagar was not the driver but Kshitipati Kandher was driving the offending vehicle at the time of accident, is confirmed being found without any infirmity. Accordingly, no merit is seen in the contention of Mr. Mahali to hold that the owner was the driver of the offending vehicle.

8. On the question of quantum of compensation, no merit is seen in favour of the Insurer to reduce the same.

9. In the result, the appeal is dismissed and the Insurer- Appellant is directed to deposit entire compensation amount along with interest as per direction of the Tribunal 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.

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. The copies of depositions as produced in course of hearing are kept on record.

12. Urgent certified copy of this order be granted on proper application.

( B.P. Routray) Judge S.Das