Orissa High Court
The Divisional Manager vs Asit Chandra Barik on 8 April, 2025
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.889 of 2010
In the matter of an application under Section 173(1) of the
Motor Vehicles Act, 1988.
The Divisional Manager
Oriental Insurance
Company Ltd. .... Appellant
-versus-
1. Asit Chandra Barik
2.Rabindra Kumar Patra .... Respondents
For Appellant : Mr. P.K. Panda, Advocate
For Respondents : Mr. R.P. Bhagat, Advocate
CORAM: JUSTICE V. NARASINGH
Date of hearing : 28.03.2025
Date of Judgment : 08.04.2025
V. Narasingh, J. Assailing the award dated 06.09.2010
passed by the learned 3rd M.A.C.T., Bhubaneswar in
MACT Case No.2165 of 1992 directing the
Appellant-Insurance Company to pay a
compensation of Rs.45,700/- with simple interest at
the rate of 9% both pendentelite and future from
the date of filing of the claim petition i.e. 9.3.1992
till the date of payment on account of injuries
suffered by one Rabindra Kumar Patra-Respondent
No.2 herein against a claim of Rs.1,50,000/-, the
present appeal is preferred by the Insurance
Company.
2. The owner of the offending vehicle a Bullet
Motor Cycle bearing registration number OR-5-2886
was cited as Opposite Party No.1 before the learned
Tribunal and Respondent No.1 before this Court.
There is no appearance on behalf of the owner of
the offending vehicle before this Court.
It is the case of the Claimant (Respondent
No.2 herein) that he suffered injuries on account of
rash and negligent driving of the driver of the Bullet
Motor Cycle bearing registration number OR-5-2886
in an accident which occurred on 26.01.1992 at
about 10 A.M near Palasuni when the offending
vehicle being driven in a rash and negligent manner
dashed against the Claimant. It was stated that the
Claimant was shifted to the hospital for treatment
and was admitted as an indoor patient from
26.1.1992 to 1.2.1992 with suspected fracture of
tibia and fibula.
In response to the notice received owner
(Respondent No.1 herein) and the present
Appellant Insurance Company appeared before the
learned Tribunal and resisted the claim and on the
pleadings of the parties, the following issues were
framed:
"1. Whether the injured Rabindra Kumar
Patra sustained injuries due to motor
2886 (Motor Cycle) ?
2. Whether the driver of the offending
vehicle was rash and/or negligent in causing
the accident ?
3. Whether the petitioner is entitled to get
compensation ? and if so to what extent and
from which O.Ps?"
Injured Claimant examined himself as
P.W.1. There is no oral evidence adduced on behalf
of the Insurance Company but the documents were
admitted as evidence and marked as exhibits by the
Claimant and the Insurance Company. The material
ones being the driving licence and the insurance
policy were marked as Exts.A and B respectively.
On an analysis of the evidence on record,
learned Tribunal quantified the compensation on
different counts which runs thus:
"1. Medical expenses Rs.5000/-
incurred by the
Petitioner
2. Charges towards Rs.700/-
engagement of
bystander
3. Special damages Rs.20,000/-
towards pain and
suffering
4. Inconvenience and Rs.20,000/-
discomfort and mental
stress
Total : Rs.45,700/-"
Accordingly, learned Tribunal awarded a
compensation of Rs.45,700/- with simple interest at
the rate of 9% both pendentelite and future from
the date of filing of the claim petition i.e. 9.3.1992
till the date of payment.
3. Mr. Panda, learned counsel for the
Appellant-Insurance Company urged with
vehemence that it was a case of no insurance policy
involving the offending vehicle. Hence, the
Appellant-Insurance Company cannot be saddled
with liability.
It is the further submission of the learned
counsel for the Insurance Company that the specific
stand in this regard was taken for which
amendment of the written statement was sought
for before the learned Tribunal and the learned
Tribunal allowed such amendment. In the face of
such stand Insurance Company cannot be held
liable.
4. Mr. Bhagat, learned counsel for the
Respondent No.1-Claimant, supported the
impugned award and submitted that since there is
no illegality or infirmity in the impugned award, the
Appeal is liable to be dismissed.
5. Taking into account the specific stand of the
Insurance Company, the LCR was called for and
perused.
6. Lack of contractual obligation being the
primary ground of challenge this Court proceeded
to examine the materials on record. On such
examination it comes to fore that the learned
Tribunal in Paragraph-7 of the impugned award
dealt with the same in the light of the specific plea
of the offending vehicle, not being insured.
On such perusal of LCR, it is seen that the
FIR vide Ext.1 contains the number of the offending
vehicle as OR 05 2886 so also in the charge sheet
Ext.2 under the heading Column No.7 it is stated
"......That on 26.1.92 at 10 A.M the accd. noted in
col.4 drove Bullet motor cycle no.OR-05-2886 in
rash and negligent manner on N.H.5 near Palasuni
and caused grievous injury to the P.W.3".
Ext.3 is the seizure list and the Column
No.4 under the heading Articles Seized clearly
refers to the offending vehicle and its colour being
"Black" and the insurance policy with cover note of
A3/113566 valid upto 22.11.92, covering the date
of accident i.e. 26.01.1992.
7. It is apt to note here that in the charge
sheet there is a reference to "PBK 352" without any
further details and referring to the same, it is
submitted by the learned counsel for the Insurance
Company Mr. Panda that the vehicle bearing
registration number OR 05 2886 was not at all
involved and has been introduced just to claim
compensation.
It is also submitted that the award of
compensation is otherwise on the higher side.
8. On perusal of the documentary evidence on
record, in the light of the written statement on
behalf of the owner that the vehicle in question i.e
OR 05 2886 is involved in the accident, the stand of
the Insurance Company of manipulation of the
record regarding involvement of the offending
vehicle in the accident is untenable.
8-A. It is also apt to note that the Appellant
Insurance Company did not adduce any evidence to
fortify its aforementioned stand.
9. In the light of the above, this Court is
persuaded to hold that there is no illegality or
arbitrariness in the adjudication of the claim
application culminating in award of Rs.45,700/- for
the injuries suffered along with interest of 9% as
awarded.
10. Within six weeks of production of proof
regarding deposit of the modified amount before
the Tribunal, the statutory deposit along with
accrued interest shall be refunded to the Insurance
Company on proper application.
11. The MACA being devoid of merit stands
dismissed.
(V. NARASINGH)
Judge
Orissa High Court, Cuttack
Dated the 8th April, 2025/Pradeep
Signed by: PRADEEP KUMAR SWAIN
Location: Orissa High Court, Cuttack
Date: 17-Apr-2025 16:40:35
