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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK M.A.C.A. No.779 of 2010 (In the matter of an appeal under Section 173 of the Motor Vehicles Act, 1988) Rahas Bihari Pradhan …. Appellant -versus- Kunti Mahanta and others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr. S.K. Singh, Advocate. appearing on behalf of Mr. B.K. Sharma, Advocate. For Respondents - Mr. Anjan Kumar Biswal, Advocate. (for respondent Nos.1 to 4) CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :25.09.2024 :: Date of Judgment :30.09.2024 A.C. Behera, J. This appeal under Section 173 of the M.V. Act, 1988 preferred by the appellant (owner of the offending vehicle, opposite party No.1 before the learned Tribunal in M.A.C.T. Misc. Case No.277 of 2003) challenging the liabilities fixed upon the appellant (owner of the offending vehicle) in the impugned award dated 11.02.2010 is taken up for its final disposal after hearing from learned counsel for the appellant and learned counsel for the respondent Nos.1 to 4. Page 1 of 6 2. As, the learned Tribunal in the impugned award of M.A.C.T. Misc. Case No.277 of 2003 has fixed the entire liability upon the appellant (owner of the offending vehicle) assigning the reasons that, at the time of accidental death of the deceased on dated 12/13.03.2003 at about 2.30 A.M. in the night, the deceased was moving in a goods carriage offending vehicle i.e. mini truck bearing registration No.OR-09-A-1937 on NH-6 as a gratuitous passenger, for which, the appellant (owner) is solely liable for bearing the accidental liabilities for the death of the deceased, because at that time, the offending mini truck of the appellant was moving on the road violating the insurance policy conditions of his offending mini truck, but to which, the appellant has challenged on the ground that, when at the time of the accident, his offending mini truck was covered with valid insurance policy before the opposite party No.2 (respondent No.5- Insurance Company), for which, he (appellant) should not have been made liable. So, for the exoneration of the appellant (owner of the offending vehicle) from its liability on the above ground, his learned counsel relied upon the decision of the Hon’ble Courts between Guru Charan Pattnaik & Ors. Vrs. Bijay Kumar Pattnaik in M.A. No.245 of 2000. 3. It is the settled propositions of law that, when any offending vehicle is covered with the statutory insurance policy at the time of accident of the deceased or injured through the use of the insured Page 2 of 6 offending vehicle, even if there is violation of policy conditions of the said offending vehicle by the insured (owner), still then the insurer (Insurance Company) shall indemnify the losses of the third parties caused through the accident by the use of that vehicle first, then to recover the same from the owner of the offending vehicle. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) 2009 (I) OLR—424—M/s. National Insurance Co. Ltd. Vrs. Baby Tabbassum and others—(Paras 6 & 7)— M.V. Act, 1998—Section 173—Motor vehicular accident— Tribunal awarded compensation—Award assailed mainly on the ground that, the deceased persons being passengers in a goods vehicle the Tribunal committed manifest error in holding that, the Insurance Company was liable to pay the compensation and the Insurance Policy was not valid— Discussing the facts, contention and the ratio laid down by Apex Court held, Tribunal rightly arrived at a conclusion that, the appellant-Insurance Company was liable to pay the compensation and recover the same. (ii) 2021(II) ILR-Cuttack—434—New India Assurance Co. Ltd. Vrs. Matha Bewa & Ors.—M.V.Act, 1988—For a smooth and hassle free remittance of the compensation to the victim of a vehicular accident, which is the aim and object of the act, the insurance company should satisfy the impugned award and would be at liberty to recover the same from the owner of the offending vehicle. (iii) AIR 2017 (S.C.) 1204—Manuara Khatun and Ors. Vrs. Rajesh Kumar Singh and Ors.—Deceased travelling as gratuitous passenger—Insurer directed to pay amount of compensation to claimants and recover same from insured. (iv) 2022 LiveLaw (SC) 932—Balu Krishna Chavan Vrs. The Reliance General Insurance Co. Ltd. and Ors.— (Para 12)—In all cases an order for “pay and recover” would not arise when the Insurance Company is not liable but would, in the facts and circumstances, be considered by this Court to meet the ends of justice, for no other reasons, Page 3 of 6 but for non-prejudicing the claimant, an order for pay and recover can be passed. AIR 2001 (S.C.) 1419—New India Assurance Co., (v) Shimla Vrs. Kamla and others—M.V.Act, 1988— Insurer made statutorily liable to pay compensation to third parties can recover from insured vehicle owner, amount paid to third parties. (vi) 2017 (1) O.J.R. (897)—M/s. New India Assurance Co. Ltd. Vrs. Sriram Hemram alias Sriram Munda and others—M.V.Act,1988—Sections a gratuitous passenger in a goods carriage for whom no premium is paid, is a fundamental breach of condition of the insurance policy—Insurance Company shall deposit the awarded amount within a period of six weeks—Insurance Company is at liberty to recover the same from the owner. 166—Carrying In view of the principles of law enunciated in the ratio of the aforesaid decisions, the learned Tribunal should have directed the insurer of the offending truck (opposite party No.2-respondent No.5 in this appeal) to satisfy the awarded compensation amount in favour of the third party petitioners first, then to recover the same from the insured (owner of the offending mini truck), for no other reasons, but for non-prejudicing the poor claimants. But, the learned Tribunal has not done so. For which, there is justification under law for making interference with the same through this appeal preferred by the appellant. Therefore, the appeal preferred by the appellant (owner of the offending vehicle) shall be allowed in part. 4. In result, the appeal preferred by the appellant (owner of the offending vehicle) is allowed in part on contest. Page 4 of 6 The directions given by the learned 1st M.A.C.T., Mayurbhanj, Baripada on dated 11.02.2010 in M.A.C.T. Misc. Case No.277 of 2003 directing opposite party No.1 (appellant in this appeal) for payment of the awarded compensation amount to the petitioners of that M.A.C.T. Misc. Case No.277 of 2003 in dismissing the said case against the opposite party No.2 (respondent No.5 in this appeal) are modified as follows i.e.:- The awarded amount with interest thereon passed in M.A.C.T. Misc. Case No.277 of 2003 by the learned 1st M.A.C.T., Mayurbhanj, Baripada on dated 11.02.2010 in favour of the petitioners thereof with effect from 01.01.2009 shall be paid by the opposite party No.2 (Insurance Company) first to the petitioners and then to recover the said amount from the owner of the offending mini truck bearing registration No.OR-09-A-1937 i.e. from the opposite party No.1 (appellant in this appeal) as per law. 5. Therefore, with the aforesaid modifications of the impugned
Decision
award, the appeal is disposed of finally. Registry is directed to transmit the copy of this judgment to the learned Tribunal in reference to M.A.C.T. Misc. Case No.277 of 2003 for early payment of the awarded compensation amount. The statutory deposited amount, if any, deposited by the appellant, the same shall be refunded to the opposite party No.2 (Insurance Company) on production of receipt regarding the deposit of the awarded Page 5 of 6 compensation amount with interest thereon before learned 1st M.A.C.T., Mayurbhanj, Baripada in reference to M.A.C.T. Misc. Case No.277 of 2003. 6. Accordingly, the appeal is disposed of finally. Orissa High Court, Cuttack. 30.09.2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Sep-2024 16:12:17 Page 6 of 6