The Manager vs Khyama Goud
2025 Latest Caselaw 4484 Ori

Orissa High Court

The Manager vs Khyama Goud on 28 February, 2025

Author: V. Narasingh

Bench: V. Narasingh

     IN THE HIGH COURT OF ORISSA AT CUTTACK
               MACA No.1428 of 2015

In the matter of an application under Section 173 of the Motor
Vehicles Act, 1988.

     The Manager, M/s ....              Appellant
     Orienta Insurance
     Co. Ltd., At- Alok
     Bharati Building,
     Saheed Nagar,
     Bhubaneswar,
     Dist.-Khurda

                    -versus-

1.   Khyama Goud
2.   Susila Bhoi         ....       Respondents
3.   Nandini Bhoi
4.   Pinku Bhoi
5.   Purna Bhoi
6.   Rinku Bhoi

        (Respondent Nos.4 & 6 being
        minors are represented through
        their  mother     guardian  at
        Respondent No. 2)

     For Appellant : Ms. M. Jesthi, Advocate
                     Ms. G.R Jena, Advocate
     For Respodents : Mr. D. Mund, Advocate
                       Mr. S. Khan, Advocate
                       Mr. P.K. Behera, Advocate
                       Mr. U. Barik, Advocate
                       Mr. R.N. Mohanty, Advocate
           CORAM: JUSTICE V. NARASINGH



                                                   Page 1 of 7
                    Date of hearing & Judgment : 28.02.2025

V. Narasingh, J.

Heard learned counsel for the Appellant and the learned counsel for the Respondents.

1. This is an appeal under Section 173 of the MV Act, 1988 (in short "the Act") by the appellant- Insurance Company challenging the impugned judgment dated 25.09.2015 passed by the learned District Judge-cum-Member, First Motor Accident Claims Tribunal, Kalahandi, Bhawanipatna in M.A.C Case No.28 of 2013.

2. The Respondent No.1 as the claimant filed M.A.C No.28 of 2003 in the Court of the District Judge- cum-First Motor Accidents Claims Tribunal, Kalahandi, Bhawanipatna claiming a compensation of Rs.3,00,000/- on account of injury suffered by her involving one Marshall Jeep bearing Registration No.OR-08-A-4404 on 10.11.2003. Such amount of compensation was quantified, inter alia, on account that the Petitioner's monthly income was Rs.3000/- from labour work and she had spent Rs.30,000/- towards medicine and Rs.5000/- towards clinical charge. Monetary compensation due to pain and suffering was assessed as Rs.65,000/-.

3. The Insurance Company-the appellant arrayed as Opposite Party No.2 and the owner of the offending

vehicle as Opposite Party No.1. Since Opposite Party No.1 expired during the pendency of the matter before the learned District Judge-cum-Member, First Motor Accident Claims Tribunal, Kalahandi, Bhawanipatna, his L.Rs have been substituted as Opposite Parties 1-A to 1-E before the learned Tribunal. Since they did not respond to the notices were set ex parte.

4. The Appellant-Insurance Company (O.P No.2 before the learned Tribunal) opposed the claim and on the pleadings of the parties, the following issues were framed.

"(i) Whether this claim application is maintainable ?

(ii) Whether on 10.11.2003 at about 7.00.a.m. on the village road of Kusumsila under Sadar Police Station, Bhawanipatna, the claimant-

petitioner sustained injuries on her person in the accident-due to rash & negligent driving of the driver of Marshal bearing registration No. OR/08-A-4404 ?

(iii) Whether the claimant-petitioner is entitled to get compensation & if so, to what extent & from whom ?

(v) Whether the claim application is bad for non-joinder & mis-joinder of parties ?

(vi) To any other relief ?"

5. The claimant-Respondent No. 1 examined herself as P.W.1. Exhibits 1 to 5 were marked on her behalf. Documents were exhibited on behalf of the Insurance Company- the Appellant as well.

6. On evaluation of the oral as well as the documentary evidence, the learned Tribunal negated the contention on behalf of the Insurance Company that the offending vehicle, a Marshall Jeep, is a passenger carrying commercial vehicle and the said vehicle has no valid and effective route permit and fitness certificate. And, it was further urged that the driver does not have valid and effective D.L. Hence, in resisting its liability and to fortify its assertion, the Insurance Company relied on the judgment of the Apex court in the case of National Insurance Company Ltd. Vrs. Kusum Rai & Others, 2006(4) SCC 250.

7. On a detailed analysis of the evidence on record, the learned Tribunal found the contentions of the Insurance Company to be untenable in the absence of any evidence to show that the insured has violated any terms and conditions of the policy.

8. Learned Tribunal also took note of the fact basing on Exhibit-B (Certified copy of D.L. of the driver) that the driver of the offending vehicle had a valid D.L. As such, it saddled the Appellant-Insurance

Company with the liability to pay the compensation, which was quantified as Rs.64,000/- along with interest at the rate of 9% per annum with effect from the date of filing of the claim petition i.e. 24.04.2013, till the date of actual payment.

9. Further the learned Tribunal drew an adverse inference against the Appellant-Insurance Company, in the absence of any evidence led to establish violation of insurance policy as claimed.

10. The Appellant-Insurance Company has assailed the said judgment, inter alia, on the ground that the learned Tribunal has resorted to guess work in quantifying the income of the injured as Rs.3000/- without any evidence on record to the said effect and that the learned Tribunal also did not appreciate the patent violations of policy, in as much as, it failed to take note of the fact that the vehicle was plying without road permit and the driver of the offending vehicle was not holding any effective driving license.

11. As already noticed, the learned Tribunal noted that since the Respondent No.1 (Petitioner before the learned Tribunal) has suffered injury of compression of left vertebral of body and multiple rib fracture of both sides and the evidence of claimant who examined herself as P.W.1, came to the dock by walking with the assistance of her son, has quantified the loss of future income as Rs.9000/- and taking into account the

injury suffered has assessed the medical and clinical charge as Rs.30,000/- and attendant charges towards Rs.5000/- and Rs.20,000/- towards pain and suffering in total quantifying the compensation as Rs.64,000/-. The learned Tribunal drew an adverse inference against the Appellant-Insurance Company, in the absence of any evidence led to establish violation of insurance policy as claimed.

12. Learned counsel for the Respondents-claimant supporting the judgment of the learned Tribunal submits with vehemence that the same does not merit consideration and seeks dismissal thereof.

13. On a cogent analysis of the evidence on record in the absence of any rebuttal of the claimant's evidence, this Court does not find any perversity in the assessment of the compensation in respect of a lady, who suffered multiple injuries including fracture to warrant interference.

But, considering that the accident in question took place on 10.11.2003 and the claim petition was filed on 24.04.2013 and the rate of interest prevailing in 2013, this Court is persuaded to hold that reduction of interest component from 9% to 7% would be just and equitable. Hence, it is so ordered.

14. Accordingly, the MACA stands disposed of, reducing the rate of interest 9% to 7% from the date of application. Quantum of compensation of

Rs.64,000/- remains unaltered. Statutory deposit along with accrued interest be refunded to the Appellant on production of receipt evidencing deposit of the awarded amount as aforesaid before the Tribunal.

(V. NARASINGH) Judge Orissa High Court, Cuttack Dated the 28th Feb, 2025/ Soumya

Signed by: SOUMYA RANJAN SAMAL

Location: High Court of Orissa Date: 20-Mar-2025 18:10:49