The Div. Manager vs Kodanda Dhangadamajhi
2025 Latest Caselaw 4636 Ori

Orissa High Court

The Div. Manager vs Kodanda Dhangadamajhi on 5 March, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          MACA No.398 of 2022

In the matter of an appeal under Section-173(1) of the Motor
Vehicles Act, 1988.


                                   ..................

   The Div. Manager,                          ....                      Appellant
   Oriental Insurance Co.,
   Ltd.
                                        -versus-

   Kodanda Dhangadamajhi                      ....               Respondents
   & Another

            For Appellant          :       M/s. R. Pati & S.K. Sahoo

            For Respondents :              M/s. D. Mund & P.K. Behera.


   PRESENT:

          THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY


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     Date of Hearing: 05.03.2025 and Date of Judgement:05.03.2025
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     Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties.

3. Memo containing the evidence of the claimants- respondents filed in Court be kept in record.

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4. The present appeal has been filed by the appellant- company challenging the award passed by the learned 3rd MACT, Dharmagarh vide judgment dtd.13.05.2022 in MAC Case No.40 of 2017. Vide the said judgment the Tribunal while allowing the claim of Respondent No.1, held the appellant liable to pay compensation to the tune of Rs.1,14,000/- along with interest @ 6% P.A. payable from the date of application till its realization. It is contended that the very proceeding initiated by the Claimant/Respondent No.1 under Section-166 of the M.V. is not maintainable as claimant-Respondent No.1was himself the driver of the offending vehicle and was charge sheeted by the I.O. of the case.

4.1. It is also contended that in his cross-examination as O.P.W.2, claimant-respondent No. 1 clearly admits that he was the accused driver of the offending vehicle and has been charge sheeted.

4.2. Ms. Pati, accordingly contended that since it is not disputed by the claimant-respondent No. 1 that he was the accused driver of the offending vehicle and has been charge sheeted, the proceeding initiated under Section-166 of the M.V. Act is not maintainable and that should not have been entertained by the Tribunal. However the Tribunal not only entertained the application, but also passed the impugned award. It is accordingly contended that the impugned judgment is not sustainable in the eye of law.

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4.3. In support of her aforesaid submission, reliance was placed in a decision of the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Jhuma Saha (Smt.) & Ors. reported in (2007) 9 SCC 263. The Apex Court in Para 5 and 8 to 13 has held as follows:

"5. The insurer resisted the claim petition when served with a notice, inter alia, contending as under:

"That as per the Motor Vehicles Act and Rules the owner is not entitled to get any compensation if he drives the vehicle and falls in an accident as the insurance policy is a third party in nature. The contract between the insured and the insurer is that if any accident occurred out of the use of motor vehicle then only third party is entitled to get compensation. The insurer and the insured is the first and second party and other than them all are third party. But in this case as per the version of the petition the deceased was the owner of the vehicle and was driving the vehicle and he met with an accident. Though the deceased had valid driving licence still he is not the third party as per the Rules and Act. Hence the petitioners are not entitled to get any compensation...."

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8. Before us a short question has been raised by the learned counsel appearing on behalf of the appellant stating that in view of Section 147 of the Motor Vehicles Act, 1988, the jurisdiction of the Tribunal was confined to a third party claim and, thus, the impugned judgment cannot be sustained.

9. Section 147(1)(b) of the Motor Vehicles Act, with which we are concerned, reads as under :

"147. Requirements of policies and limits of liability :

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section

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(2)- (i) against any liability which may be incurred by him in respect of the death of or bodily (injury to any person, including owner of the goods or his authorised representative carried in the vehicle) or damage to any property of the third party caused by or arising out of the use of the vehicle in a public place."

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place"

Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923(8 of 1923) in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle,

or (c) if it is a goods carriage, being carried in the vehicle, or

(i) to cover any contractual liability. Explanation- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place."

10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving, the question which arises for consideration is that the deceased himself being

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negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable".

11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise.

12. In Dhanraj v. New India Assurance Co. Ltd. (2004) 8 SCC 553: 2005 SCC (Cri) 363) it is stated as follows: (SCC pp. 555-56, paras 8 & 10)

"8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.

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10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs 4989 paid under the heading 'Own damage' is for covering liability towards personal injury. Under the heading 'Own damage', the words 'premium on vehicle and non-electrical accessories' appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance."

13. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case."

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4.4. It is also contended that since question of maintainability of the application is a pure question of law, it can be raised at any stage of the proceeding. In support of the same, reliance was placed in a decision of the Apex Court in the case of K. Lubna & Ors. Vs. Beevi & Ors.. Hon'ble Apex Court in Para 9 to 11 has held as follows:-

"9. On the legal principle, it is trite to say that a pure question of law can be examined at any stage, including before this Court. If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such legal consequences would be a pure question of law (Yeswant Deorao Deshmukh υ. Walchand Ramchand Kothari) (1950 SCR 852).

10. No doubt the legal foundation to raise a case by including it in the grounds of appeal is mandated. Such mandate was fulfilled by moving separate application for permission to urge additional grounds, a course of action, which has already been examined by, and received the imprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna (AIR 1965 SC 1325).

11. We may also usefully refer to what has been observed by Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh in the following words:

".... When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the

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court of ultimate review is placed in a much less advantageous position than the courts below."

5. Mr. D. Mund, learned counsel appearing for the claimants-respondents on the other hand contended that no such charge sheet was ever filed before the Tribunal and accordingly there was no occasion on the part of the Tribunal to know that the claimant- respondent No. 1 was charge sheeted as being the accused driver of the offending vehicle.

5.1. In support of his submission, Mr. Mund, learned counsel appearing for the claimants-respondents relied on the decision of the Hon'ble Apex Court in the case of Geeta Dubey and Others vs. United India Insurance Co., Ltd. & Others, reported in 2024 SCC OnLine SC- 3779. Hon'ble Apex Court in Para-16 of the said judgment has held as follows:-

"16. We are surprised that in a First Appeal filed under Section 173 of the Motor Vehicles Act, 1988, the High Court has made a short shrift of the matter and by a summary order reversed the detailed award passed by the MACT. An appeal under Section 173 of the Motor Vehicles Act is in the nature of the First Appeal. In our considered view, the least that is expected is a careful marshalling of the oral and documentary evidence produced before the MACT. Except for a fleeting reference to the evidence of PW-2, there is no real discussion on the substance of his deposition. What is matter of concern is that there is no reference at all to Exh.P-1 final report, Exh.P-2 the First Information Report, Exh.P-16 the seizure memo of the vehicle after the issuance of Section 133 notice under the Motor Vehicles Act and also no discussion on the findings of the MACT".

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6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the present claim application was filed by the driver of the offending vehicle-Respondent No.1. Since the claimant-Respondent No.1 while being examined as a witness in the claim application as OPW 2 admits that he was the driver of the offending vehicle and has been charge sheeted, in view of such statement made by the claimant himself, and the decision in the case of Jhuma Saha, as per considered view of this Court, maintainability of the application under Section-166 of the MV Act should have been considered, prior to passing of the award in question. The decisions relied on by the learned counsel appearing for the claimant-respondent No. 1 as per considered view of this Court is not applicable to the facts of the present case. It is also the view of the Court that question of maintainability being a pure question of law, it can be raised at any time of the proceeding in view of the decision in the case of K. Lubna as cited (supra).

6.1. In view of the aforesaid analysis, this Court is inclined to set aside the award passed vide judgment dtd. 13.05.2022. While setting aside the judgment, this Court remits the matter to the Tribunal to take a fresh decision as to whether the proceeding under Section-

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166 of the M.V Act is maintainable before him or not prior to proceeding further in the claim application.

7. Accordingly, the MACA stands disposed of.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 5th of March, 2025/Subrat

Location: HIGH COURT OF ORISSA, CUTTACK