Orissa High Court
D.M vs Chinmayee Kumari Patra on 14 May, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.420 of 2024
D.M., Oriental Insurance .... Appellant
Company Ltd., BBSR Mr. A.A. Khan, Adv.
.
-versus-
Chinmayee Kumari Patra .... Respondents
& Others
Mr. B.N. Rath, Adv.
(for Res. NO.1 & 2)
None(for Res. No.3)
Mr. D. Deo, Adv.
(for Res. NO.5))
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
Order No. 14.05.2025
7. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard learned counsel appearing for the parties.
3. This appeal has been filed by the appellant-company
challenging the compensation so awarded by the learned 3 rd
M.A.C.T, Nayagarh vide judgment dt.30.11.2023 in MAC Case
No.89 of 2018. Vide the said judgment, the Tribunal awarded
compensation amount of Rs.1,18,00,000/- along with
interest @ 6 % per annum payable from the date of filing of the
claim application till its realization.
// 2 //
4. It is the main contention of the learned counsel appearing
for the appellant-company that the offending vehicle since was
not having valid permit which was a primary requirement to
run a vehicle in the public road, in view of a decision in the
case of Amrit Paul Singh and Another Vs. TATA AIG
General Insurance Co. Ltd. And Others, 2018(3) T.A.C 1
(S.C), right of recovery should have been allowed while
allowing the compensation with a direction on the appellant to
pay the same. Hon'ble Apex Court in para 23 of the judgment
in the case of Amrit Paul Singh has held as follows:
23. In the case at hand, it is clearly demonstrable from
the materials brought on record that the vehicle at the
time of the accident did not have a permit. The
appellants had taken the stand that the vehicle was not
involved in the accident. That apart, they had not stated
whether the vehicle had temporary permit or any other
kind of permit. The exceptions that have been carved out
under Section 66 of the Act, needless to emphasise, are
to be pleaded and proved. The exceptions cannot be
taken aid of in the course of an argument to seek
absolution from liability. Use of a vehicle in a public
place without a permit is a fundamental statutory
infraction. We are disposed to think so in view of the
series of exceptions carved out in Section 66. The said
situations cannot be equated with absence of licence or
a fake licence or a licence for different kind of vehicle,
or, for that matter, violation of a condition of carrying
more number of passengers. Therefore, the principles
laid down in Swaran Singh (supra) and Lakhmi Chand
(supra) in that regard would not be applicable to the
case at hand. That apart, the insurer had taken the plea
that the vehicle in question had no permit. It does not
require the wisdom of the "Tripitaka", that the existence
of a permit of any nature is a matter of documentary
evidence. Nothing has been brought on record by the
insured to prove that he had a permit of the vehicle. In
such a situation, the onus cannot be cast on the insurer.
Therefore, the tribunal as well as the High Court had
directed the insurer was required to pay the
compensation amount to the claimants with interest
with the stipulation that the insurer shall be entitled to
// 3 //
recover the same from the owner and the driver. The
said directions are in consonance with the principles
stated in Swaran Singh (supra) and other cases
pertaining to pay and recover principle.
4.1. It is contended that since neither the permit of the
offending vehicle was seized by the I.O. nor it was produced by
the owner-Respondent No.3 as Respondent No.3 was set ex
parte in spite of due appearance before the Tribunal, while
holding the appellant liable to pay the compensation so
assessed, right of recovery should have been allowed in favour
of Respondent No.3. It is also contended that since the accident
occurred due to negligence on the part of the rider of the motor-
cycle, on the ground of contributory negligence, the
compensation amount should have been assessed accordingly.
4.2. Making all these submissions, learned counsel
appearing for the appellant-company contended that the
impugned award needs interference of this Court and right of
recovery be allowed against owner-Respondent No.3.
5. Even though B.N.Rath, learned counsel appearing for the
Claimants-Respondents No.1 & 2 and Mr. D.Deo, learned
counsel appearing for Respondent No.5 supported the impugned
judgment, but in course of hearing contended that claimants-
Respondents will be fully satisfied, if this Court will reduce the
compensation to the tune of Rs.80,00,000/- along with interest
@6% per annum payable from the date of filing of claim
application till its realisation. However, it is contended that
since Respondent No.4 who is also a claimant to the award has
died during pendency of this appeal, her share be exclusively
disbursed in favour of Respondent No.5 along with the
individual share of Respondent No.5.
// 4 //
6. Learned counsel appearing for the Appellant-Company to
the aforesaid proposition so laid by the learned counsel for
the Claimants-Respondents leave it to the discretion of this
Court.
7. Since nobody is present in spite of due appearance on
behalf of Respondent No.3, this Court is unable to appreciate
as to whether the offending vehicle was having valid permit or
not. In absence of the owner-respondent before this Court
and taking into account the grounds taken by the appellant
that the vehicle was not having the valid permit, this Court
while interfering with the impugned judgment held the
claimants-respondents entitled to get compensation amount
of Rs.80,00,000/- with interest @6% per annul payable from
the date of filing of claim application till its realization. This
Court however is inclined to grant right of recovery as from
the impugned judgment nowhere it is found that the offending
vehicle was having valid permit.
7.1. This Court accordingly directs the Appellant-Company to
deposit compensation amount of Rs.80,00,000/- along with
interest @6% per annum payable from the date of application
till its realisation within a period of eight (8) weeks from the
date of receipt of this order.
7.2. It is observed that on such deposit of the amount,
the Tribunal shall do well to disburse the same in favour of
the Claimants-Respondents proportionately in terms of the
judgement passed on 30.11.2023.
7.3. Since Respondent No.4 has died during pendency of
the appeal, her share of compensation amount be disbursed
in favour of Respondent No.5 along with his own share.
// 5 //
7.4. It is further observed that if the Appellant-Company
will fail to deposit the compensation amount within the time
stipulated here-in-above, the compensation amount of
Rs.80,00,000/- shall carry interest @7% per annum payable
from the date of expiry of the period of 8 (eight) weeks till it is
so deposited.
7.5. It is further observed that since this Court is allowing
right of recovery as against owner-respondent No.3, in the
event of any application being filed by the Appellant-
Company seeking recovery of the amount from the
Respondent No.3-Owner, the Tribunal shall do well to give
due opportunity of hearing to the Respondent No.3-Owner in
that regard and decide the same in accordance with law.
7.6. It is observed that only after deposit of the amount as
directed, Appellant-Company shall be permitted to take
refund of the statutory deposit along with accrued interest, if
any, on proper identification.
7.7. The M.A.C.A accordingly stands disposed of.
(Biraja Prasanna Satapathy)
Judge
sangita
Reason: authentication of order
Location: high court of orissa, cuttack
Date: 27-May-2025 11:35:37
