Orissa High Court

M/S. Bajaj Allianz General vs Sasmita Mohanty And Ors. .... Opposite ... on 9 May, 2025

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                                                      Signature Not Verified
                                                                      Digitally Signed
                                                                      Signed by: BHABAGRAHI JHANKAR
                                                                      Reason: Authentication
                                                                      Location: ORISSA HIGH COURT, CUTTACK
                                                                      Date: 29-May-2025 16:37:05




                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No. 10525 of 2024

       (In the matter of an application under Articles 226 and 227 of the
       Constitution of India, 1950).

       M/s. Bajaj Allianz General                   ....                Petitioner(s)
       Insurance Company Ltd.,
       Bhubaneswar
                                         -versus-

       Sasmita Mohanty and Ors.                     ....         Opposite Party (s)


     Advocates appeared in the case throughHybrid Mode:

       For Petitioner(s)             :                    Mr. Adam Ali Khan, Adv.



       For Opposite Party (s)        :                   Mr. Debasish Patnaik, Adv.


                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI

                      DATE OF HEARING:-05.03.2025
                     DATE OF JUDGMENT:-09.05.2025
     Dr. S.K. Panigrahi, J.

1. In this Writ Petition, the Petitioner seeks a direction from this Court to

set aside the order dated 15.02.2024 passed by the learned MACT,

Cuttack, and to summon specific documents from third parties, which

the Petitioner claims are essential to establish contributory negligence

and accurately determine the quantum of compensation.

Location: ORISSA HIGH COURT, CUTTACK

I. FACTUAL MATRIX OF THE CASE:

2. The brief facts of the caseare asfollows:

(i) The petitioner is a registered General Insurance Company with its Head

Office at Pune, Maharashtra, carrying out business operations across

India, including within the jurisdiction of this Court. The present writ

petition arises out of proceedings relating to MAC Case No. 403 of 2020,

pending before the learned 2nd 1st ADJ-cum-5th MACT, Cuttack.

(ii) The opposite parties filed a compensation application under Section 166

of the Motor Vehicles Act, 1988, claiming ₹1,20,00,000 on account of the

death of Late Binayak Mohanty in a road accident. At the time of the

accident, the deceased was 48 years old and was serving as a Deputy

General Manager under SSNR Project Pvt. Ltd., drawing a salary of

₹60,100 per month.

(iii) The case of the claimants is that on 27.02.2020, while the deceased was

traveling towards his company in a Bolero vehicle bearing registration

No. OD-10-F-7979, a container truck bearing registration No. HR-55-Q-

9767, driven rashly and negligently, dashed into the Bolero, causing

fatal injuries to the deceased. An FIR was lodged at Sector-1, Pithampur

Police Station, Madhya Pradesh, leading to a charge sheet against the

driver of the container truck after investigation.

(iv) The claimants, to substantiate their case, examined the wife of the

deceased as P.W.-1 and the employer of the deceased as P.W.-2,

producing appointment letters, appraisal certificates, salary slips, Form-

16, and a vehicle allotment letter. An independent eyewitness was also

Location: ORISSA HIGH COURT, CUTTACK

examined to corroborate the manner of the accident and the

involvement of the container truck.

(v) The petitioner-insurance company, while contesting the claim, filed

applications before the MACT seeking production of the deceased's

bank statement from Axis Bank, Sector-6, CDA, Cuttack, and seeking

production of own damage claim documents relating to the Bolero

vehicle from United India Insurance Company, to establish contributory

negligence and verify the actual income of the deceased.

(vi) The petitioner contended that their independent investigation revealed

that the deceased was allegedly driving under the influence of alcohol

and had dashed into the container truck from behind. It was further

contended that the deceased's income had not been adequately

established as there was no NEFT evidence or bank transaction proof

produced by the claimants.

(vii) The learned MACT rejected both applications filed by the petitioner on

15.02.2024, holding that the salary documents produced by the

employer sufficiently established the income of the deceased and that

the bank account being sought was not at the Cuttack branch but at the

Indore branch. It also held that the police investigation and the

eyewitness testimony had already confirmed the involvement of the

container truck.

(viii) Aggrieved by the rejection of their applications, the petitioner has

approached this Court, seeking quashing of the order dated 15.02.2024

and issuance of directions to summon the concerned documents,

claiming that denial of opportunity to produce such evidence amounts

Location: ORISSA HIGH COURT, CUTTACK

to violation of principles of natural justice and may lead to grave

prejudice.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

3. Learned counsel for the Petitioner earnestly made the following

submissions in support of his contentions:

(i) The learned Tribunal rejected the petitioner's applications without

properly appreciating that the documents sought were crucial for a fair

adjudication of the claim and the petitioner's defense.

(ii) Since the claimants failed to file sufficient documents like bank

statements, IT Returns, and proper NEFT records showing salary

transfer, it was necessary to summon Axis Bank for verification of the

deceased's actual income, which directly impacts the quantum of

compensation.

(iii) The petitioner asserts that the deceased's negligence in driving the

Bolero vehicle under intoxication was the real cause of the accident. The

own damage claim documents of United India Insurance Company are

vital to prove contributory negligence, which could substantially reduce

or nullify the compensation claim.

(iv) The rejection of applications deprived the petitioner of an opportunity

to substantiate its defense that the accident occurred due to the

deceased's fault, thereby exposing the insurer to unjustified liability.

(v) If the Tribunal's order is not set aside and the documents are not

summoned, the petitioner stands to suffer irreparable financial loss by

being made to compensate for an accident allegedly caused by the

negligence of the deceased himself.

Location: ORISSA HIGH COURT, CUTTACK

(vi) The petitioner submits that there is no alternative or efficacious remedy

available to redress this grievance except by invoking the extraordinary

writ jurisdiction of this Court.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

4. The Learned Counsel for the Opposite Parties earnestly made the

following submissions in support of his contentions:

(i) The Sector-1 Pithampur Police Station, after proper investigation, filed a

charge sheet against the offending container truck. There is no

ambiguity regarding the offending vehicle's involvement, as also

corroborated by the eyewitness testimony.

(ii) The employer of the deceased has filed all relevant documents

establishing his employment, designation, and monthly salary. The

salary slips, appointment letter, Form-16, and vehicle allotment letter

filed as exhibits (Exhibits 15 to 19) are sufficient proof. Therefore, there

is no necessity to summon additional bank account statements from an

unrelated branch in Cuttack.

(iii) The deceased's salary account was with Axis Bank, Indore Branch,

Madhya Pradesh, not at Sector-6, CDA, Cuttack, Odisha. Thus, the

petitioner's attempt to summon Cuttack branch records is irrelevant and

unnecessary.

(iv) The deceased was travelling in the Bolero at the time of the accident.

However, the FIR and charge sheet clearly establish that the accident

was caused by the rash and negligent driving of the container truck, not

by any fault of the deceased or the Bolero vehicle. Hence, summoning

the Bolero's insurer and owner is unnecessary and misplaced.

Location: ORISSA HIGH COURT, CUTTACK

(v) The claimants contend that the present writ petition filed by the

insurance company against the rejection order of the MACT is not

maintainable. The rejection of applications does not suffer from any

jurisdictional error or violation of principles of natural justice and was

passed after proper consideration of facts and law.

IV. FINDINGS OF THE LEARNED MACT:

5. The Tribunal reasoned that the evidence on record sufficiently proved

both the manner of accident and the income of the deceased, and that

no additional summoning of documents was warranted.

6. It emphasized that the Insurance Company retains the opportunity to

lead its own evidence regarding contributory negligence if it chooses to

do so.

7. Both petitions filed by the Insurance Company were found to be lacking

in merit and were accordingly rejected.

8. The Tribunal concluded that issuing summonses in the manner sought

by the Insurance Company would not materially assist in the

adjudication of the pending claim case and would amount to a fishing

enquiry.

V. COURT'S REASONING AND ANALYSIS:

9. Heard Learned Counsel for parties and perused the documents placed

before this Court.

10. The heart of the dispute lies in the fact that The heart of the dispute lies

in the fact that the Insurance Company, while defending its liability in a

motor accident compensation case, seeks to summon third-party

records to establish contributory negligence on the part of the deceased

Location: ORISSA HIGH COURT, CUTTACK

and to question the quantum of compensation. The rejection of its

applications by the Tribunal is challenged as denying a fair opportunity

to produce relevant evidence, though the Tribunal has found the

existing record sufficient to proceed without further inquiry.

11. The first issue that warrants consideration by this Court is whether the

Insurance Company's assertion of contributory negligence has any legal

foundation. It is a settled principle of law that contributory negligence

must be established affirmatively through clear and convincing

evidence. Mere conjecture or speculative inference cannot suffice to

displace liability or diminish compensation. Suspicion, however strong,

cannot substitute the rigor of proof required in such matters.

12. In this context, it becomes necessary to refer to the decision in Meera

Devi and Another v. HRTC1, where the Supreme Court, while

addressing a comparable issue concerning contributory negligence,

observed as follows:

"To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case."

2014 AIR SCW 1709

Location: ORISSA HIGH COURT, CUTTACK

13. Applying the abovementioned judicial precedent to the case in hand, it

is apparent that the Insurance Company's plea of contributory

negligence is not backed by any prima facie cogent material. The claim

rests on an unsubstantiated allegation that the deceased was under the

influence of alcohol and collided into the truck from behind. No

contemporaneous evidence, medical report, or expert testimony has

been placed on record to support such a contention. Moreover, the

charge sheet filed by the investigating agency attributes culpability

solely to the driver of the container truck, and the version of events has

been corroborated by an independent eyewitness. In such a setting, the

Tribunal's view that summoning documents from a third party insurer

or a branch bank unrelated to the salary transactions would amount to a

fishing inquiry cannot be said to be either arbitrary or in violation of

principles of natural justice.

14. With regard to the summoning of bank records for the purpose of salary

verification, the Tribunal rightly invoked the best evidence rule. Where

primary evidence has already been adduced and remains unrebutted by

credible contradiction, the invocation of secondary evidence becomes

superfluous. Unless the authenticity of the primary documents is

seriously impugned, resorting to further corroboration is unwarranted.

This view was resonated by the Supreme Court in the case of Mohinder

Singh v. Jaswant Kaur2, wherein it observed as follows:

"Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law

Civil appeal No.6706 of 2013.

Location: ORISSA HIGH COURT, CUTTACK

requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence."

15. Likewise, in the present case scenario, it is evident that the salary-

related documents furnished by the claimants, including appointment

letters, monthly salary slips, Form 16, and corroborating oral testimony

from the employer, constitute primary and best evidence within the

meaning of Sections 61 and 62 of the Indian Evidence Act, 1872. These

documents have neither been impeached nor effectively contradicted by

the petitioner during cross examination.

16. The Insurance Company continues to have the liberty to independently

adduce evidence, if any, to establish contributory negligence. However,

compelling third-party entities to produce documents in the absence of

a clear foundational basis poses the risk of diverting the adjudication

process from its core issues. Such an approach runs counter to the object