The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Aug-2023 17:46:57 IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.933 of 2014 (From the judgment dated 22nd August, 2014 passed by the learned 3rd M.A.C.T., Bhubaneswar in MACT Case No.569 of 2004) Manoranjan Behura since dead through LRs …. Appellants -versus- Pravakar Swain and another …. Respondents Advocate(s) appeared in this case:- For Appellants
Legal Reasoning
: Mr. P.K. Mishra, Advocate For Respondents : Mr. R.C. Sahoo-1, Advocate For Respondent No.2 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 17th August, 2023 B.P. Routray, J. 1. Heard Mr. P.K. Mishra, learned counsel for the Appellants- claimants as well as Mr. R.C. Sahoo-1, learned counsel for Respondent No.2-Insurance Company. 2. Present appeal by the claimants is directed against the judgment dated 22.08.2014 of learned 3rd M.A.C.T., Bhubaneswar in MACT Case No.569 of 2004, wherein compensation to the tune of Rs.2,01,940/- has been granted along with simple interest @7% per MACA No.933 of 2014 Page 1 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Aug-2023 17:46:57 annum both pendentelite and future to the original claimant from the date of filing of the claim application, i.e. 6.12.2004 on account of injury sustained by him in the motor vehicular accident dated 5.3.2004. 3. Mr. P.K. Mishra, learned counsel for the Appellants-claimants submits that, the injured sustained permanent disability to the extent of 40% as per the opinion of the Doctor which affects 50% of his functionality, and prays to enhance the compensation amount on this score. 4. Admittedly, the injured-claimant did not file any physical disability certificate granted by the appropriate authority. On the other hand, he examined P.W.3, the alleged treating Doctor, who spoke about the extent of physical disability of the injured. The learned Tribunal has taken functional disability to the extent of 15%. The nature of injuries as per the injury report under Ext.3 is three fractures and according to the opinion of P.W.3, the injured is not conformable for sitting on the ground with folded legs. So, considering the avocation of injured as a businessman of ornaments, though no document is produced, I agree with the conclusion arrived by learned Tribunal to count functional disability up-to the extent of 15%, keeping in view the opinion of P.W.3 and the injuries. However, on the count of addition of future prospect to the extent of 40%, the loss of future income is enhanced by Rs.51,840/-. 5. The claimant-injured died during pendency of the appeal and his LRs have been substituted accordingly. Therefore, the present MACA No.933 of 2014 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Aug-2023 17:46:57 Appellants, being the LRs of original claimant, are not entitled for any amount towards non-pecuniary loss. Accordingly, the compensation amount is recomputed at Rs.2,48,780/-. 6. On the question of liability, Mr. Mishra submits that the same should be saddled on the insurer-Respondent No.2 since the cover note seized by the Police, as produced by the claimant before the Tribunal, satisfies about coverage of insurance on the date of accident. 7. Learned Tribunal has absolved the insurer from liability on the ground that the claimant has failed to prove beyond reasonable doubt that the offending vehicle was insured with Respondent No.2 on the date of accident. The Tribunal has though stated that the insurer- Respondent No.2 has produced the Cover Note Issue Register and Premium Collection Register, but the same are not found accepted on record or marked in evidence. The Tribunal accordingly doubted validity of insurance coverage of the offending vehicle on the date of accident. 8. It needs to be observed at the outset that, in a claim application, the claimant need not prove the validity of insurance coverage beyond reasonable doubts, but on the touchstone of preponderance of probability. Here in the instant case, the owner did not appear and remained ex-parte. The claimants have produced the Police seizure list and copy of the cover note seized by Police. Thus the claimant has discharged the onus on his part. The insurer, in absence of owner, was required to adduce positive evidence to deny their liability since the MACA No.933 of 2014 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Aug-2023 17:46:57 benefit under section 170 of the M.V. Act has been availed. Perusal of evidence of OPW-1, the Assistant Manager of Insurance Company, reveals that they have produced Photostat copies of extract of Premium Collection Register and Cover Note Issue Register for the month of February and March, 2004 instead of producing originals or authenticated copies thereof. This OPW-1 has not stated anything in explanation for not producing the original registers nor did he say anything in his evidence regarding non-issuance of any Insurance Policy by their Office in respect of the offending vehicle. The offending vehicle is the Bus bearing Registration No.OR-04-7714. OPW-1 has admitted in his cross-examination that he was not dealing with the subject of issue of policy in respect of any motor vehicle. The cover note was issued by the Regional Office in the year 2004. The relevant extracts of his deposition in the cross-examination are reproduced below: “I cannot say who was in charge of printing cover notes in Regional Office in the year 2004. I have not filed original register. It is not a fact that I have not filed the original register in order to suppress the truth. It is not a fact that I am deposing falsehood. It is a fact that our branch office has issued insurance policy in favour of the offending bus.” 9. Perusal of the evidence of OPW-1 and his admission made in the cross-examination to the effect that the Branch Office has issued the insurance policy in favour of the offending Bus, it can safely be concluded that the offending Bus had valid insurance coverage on the date of accident. This Court accordingly concludes as such and holds MACA No.933 of 2014 Page 4 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Aug-2023 17:46:57 that the insurer-Respondent No.2 is liable to indemnify the compensation amount on behalf of the owner. 10.
Decision
In the result, the appeal is allowed to above extent. The insurer- Respondent No.2 is directed to deposit the compensation amount of Rs.2,48,780/- (rupees two lakhs forty-eight thousand seven hundred eighty) before the Tribunal along with interest @6% per annum from the date of filing of the claim application, i.e. 06.12.2004, within a period of two months from today; where-after the same shall be disbursed in favour of the present Appellant Nos.1(a) to 1(d), who are the LRs of the original claimant, on such terms and proportion to be fixed by the Tribunal. 11. The copies of depositions and exhibits produced by Mr. P.K. Mishra, learned counsel for the Appellants, in course of hearing are kept on record. (B.P. Routray) Judge B.K. Barik/Secretary MACA No.933 of 2014 Page 5 of 5