The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.335 of 2009 (In the matter of an appeal under Section 173 of the Motor Vehicles Act, 1988) The Oriental Insurance Co. Ltd. represented its Regional through Manager, Regional Office, Alok Bharati Tower, Saheed Nagar, Bhubaneswar -versus- …. Appellant Tulei Sahu and another …. Respondents Appeared in this case:- For Appellant For Respondents : : Ms. Prativa Mishra, Advocate
Legal Reasoning
Mr. C.R. Satapathy, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 13.09.2024 / date of judgment :20.09.2024 A.C. Behera, J. This appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (in short ‘the M.V. Act, 1988’) by the appellant- Insurance Company challenging an award passed on dated 29.11.2008 in MAC Case No.284 of 2005 by the learned 1st MACT, Keonjhar has been taken up for its final disposal at the stage of admission after hearing from the learned counsels of both the sides. // 2 // 2. The factual backgrounds of this appeal is that, while, on 05.11.2005 at about 5.00 P.M., the husband of the petitioner, i.e., Dolagovinda @ Dolia Sahu was travelling through a Commander Jeep bearing Registration No.OR-09-F-2591 of the Opposite Party No.1, and while the said Commander Jeep reached near Banabiharipur Chhak, at that time, due to rash and negligent driving of the driver of the said offending Commander Jeep, the same met with an accident, by the result of which, the husband of the petitioner sustained injuries and expired. 3. After the death of the husband of the petitioner/claimant, she (claimant) approached the learned tribunal by filing MAC Case No.284 of 2005 praying for compensation of Rs.3,00,000/-(rupees three lakhs) for the said motor vehicular accidental death of her husband, as his legal representative. 4. In the said MAC Case No.284 of 2005, the Opposite Party No.1(the owner of the offending Commander Jeep) was set ex parte, but, the Opposite Party No.2-Insurance Company challenged the same for its exoneration by filing its written statement taking the plea that, at the time of the accident, the driver of the offending vehicle had no valid and effective driving license and as such, the offending Commander Jeep was moving on the road at the time of accident violating the terms and conditions of the insurance policy, for which, the Insurance Page 2 of 9 // 3 // Company(Opposite Party No.2) cannot be made liable for such motor vehicular accidental death of the deceased with the further pleas that, the amount claimed by the petitioner as compensation is high and excessive, for which, the MAC Case No.284 of 2005 filed by the claimant/petitioner is liable to be dismissed. 5. During hearing of the MAC Case No.284 of 2005, two witnesses were examined on behalf of the claimant/petitioner and the documents vide Exts.1 to 10 were marked on her behalf. Neither any witness was examined nor any document was filed or proved on behalf of any of the Opposite Parties including Opposite Party No.2(Insurance Company). 6. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the learned 1st MACT, Keonjhar allowed that MAC Case No.284 of 2005 of the petitioner/claimant on dated 29.11.2008 on contest against the Opposite Party No.2 (Insurance Company) and ex parte against the Opposite Party No.1 with cost of Rs.300/- to be paid by the Opposite Party No.2 to the petitioner and also directed the Opposite Party No.2(Insurance Company) to pay compensation of Rs.90,200/-(rupees ninety thousand two hundred) only with cost and interest at the rate of 9% per annum thereon since the Page 3 of 9 // 4 // date of application till the date of payment to the petitioner indicating the percentage of fixed deposit and release in cash of the same. 7. On being aggrieved with the aforesaid award dated 29.11.2008 passed by the learned 1st MACT, Keonjhar in MAC Case No.284 of 2005 against the Opposite Party No.2-Insurance Company, the Opposite Party No.2-Insurance company challenged the same by preferring this appeal on the grounds that, (i) at the time of accident, the driver of the offending Commander Jeep had no valid and effective license and the same was fake and (ii) the awarded amount as well as the interest thereon is high and excessive. 8. In order to assail the impugned award passed against the Insurance Company, the learned counsel for the Insurance Company (appellant) relied upon the ratio of the decision reported in Civil Appeal No.231 of 2012 between United India Insurance Company Ltd. vrs. Sujata Arora and others wherein, it has been held that, in case of violation of insurance policy condition by the insured, no liability could be fastened on the Insurance Company. 9. During enquiry/trial of MAC No.284 of 2005 before the learned Tribunal, the documents, i.e., certified copy of the F.I.R., charge-sheet, seizure list, zimanama, xerox copy of the insurance policy, R.C. Book, Page 4 of 9 // 5 // driving license, tax receipt and fitness certificate of the offending vehicle have been marked as Exts.1 to 10 on behalf of the petitioner/claimant. It appears from the said Ext. Nos.1 to 10 that, the driver of the offending Commander Jeep was arrested and charge-sheeted for such accident on the allegation of rash and negligent driving, but, he had possessed valid driving license at the time of such accident. The Opposite Party No.2-Insurance Company(appellant in this MACA) has neither adduced any oral nor any documentary evidence from its side to prove that, the D.L., which was marked as Ext.8 on behalf of the claimant was either fake or the same was invalid for some reason, though, it was its duty and obligation to prove the same, as the plea has been taken on its behalf in its written statement that, the driver of the offending Commander Jeep had no valid and effective D.L. at the time of accident. 10. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision:- (i) (2016) 65 OCR (S.C.)-199 : Rakesh Kumar and Etc. Etc. vrs. United India Insurance Company Limited and others (Paras-19 and 20)—M.V. Act, 1988— Sections 147 and 166—Accident Claim—Liability of Insurance Company—Validity of the D.L. of the driver of the offending vehicle was challenged by the Insurance Company—Held, once the D.L. is proved and marked in evidence without there being any Page 5 of 9 // 6 // objection by the Insurance Company, the Insurance Company has no right to raise any objection about the admissibility and manner of proving of the driving license at a later stage, That too, when the Insurance Company failed to adduce any evidence to prove that, the driving license (Ext.R1) was either fake or invalid for some reason, the Insurance Company cannot get exoneration from its liability. 11. Here, in this case at hand, though, in the written statement, the Opposite Party No.2(Insurance Company/appellant) has taken the plea for exoneration of its liability on the ground that, the driver of the offending Commander Jeep had no valid and effective license, but, during enquiry/trial of the case, the Insurance Company(Opposite Party No.2/appellant) neither has adduced any oral nor any documentary evidence on its behalf to prove that, the so-called D.L.(Ext.8) of the driver of the offending Commander Jeep(who was charge-sheeted as per Ext.2 and whose D.L. was seized by the police as per Ext.3) was either fake or invalid for some reasons, then, at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decision of the Apex Court reported in (2016) 65 OCR (S.C.)-199(Para Nos.19 and 20), it is held that, the plea of the Insurance Company for its exoneration on the ground that, the driving license of the driver of the offending Commander Jeep at the time of accident was not valid and effective cannot be sustainable under law. Page 6 of 9 // 7 // 12. In view of the principles of law enunciated by the Apex Court in (2016) 65 OCR (S.C.)-199, the decision relied upon by the appellant- Insurance Company has become inapplicable to this appeal, at hand on facts. When, there is no material in the record on behalf of the appellant(Insurance Company) to show that, in spite of exercising its due diligence, the documents, to which, the appellant (Insurance Company) has prayed for adducing as an additional evidence at this appellate stage were not within its knowledge or even after exercise of its due diligence, it was not possible on the part of the appellant-Insurance Company to procure and produce the same during enquiry before the Tribunal, then, at this juncture, the petition of the appellant under Order-41, Rule-27 of the C.P.C. vide Misc. Case No.658 of 2009 stands rejected the said Misc.
Decision
Case No.658 of 2009 is disposed of finally. 13. So far as the second ground raised on behalf of the appellant(Insurance Company) concerning the award made by the learned Tribunal was high and excessive is concerned; the said award has been made in a death claim case. The claimant had prayed for Rs.3,00,000/-(rupees three lakhs), but, an award has been passed for Rs.90,200/-(rupees ninety thousand two Page 7 of 9 // 8 // hundred) along with cost of Rs.300/-(rupees three hundred) holding the deceased an unskilled person having his daily wage as Rs.50/-(rupees fifty) at the time of accident. So, it cannot at all be held that, the above award passed by the learned Tribunal in the death claim case vide MAC Case No.284 of 2005 in favour of the claimant/petitioner is high and excessive. 14. As, the learned Tribunal has awarded interest at the rate of 9% per annum on the awarded amount since the date of application till the date of payment, for which, by taking the prevailing rates of Bank interest of that time into account, it is felt proper to reduce the awarded rate of interest on the awarded amount from 9% to 7% per annum without changing / modifying any other findings of the learned Tribunal. Therefore, there is some merit in the appeal of the appellant and the same is to be allowed in part. 15. In result, the appeal filed by the appellant-Insurance Company is allowed in part on contest. The impugned judgment/award passed by the learned 1st MACT, Keonjhar in MAC Case No.284 of 2005 on dated 29.11.2008 is maintained / confirmed in its all respect subject to the modification / Page 8 of 9 // 9 // reduction of the rate of interest on the awarded amount, from 9% to 7% per annum. The Opposite Party No.2-Insurance Company is directed to pay the awarded compensation amount with cost as passed by the learned 1st MACT, Keonjhar in MAC Case No.284 of 2005 to the petitioner(claimant) within one month hence along with interest thereon at the rate of 7% per annum since the date of application till the date of payment. 16. Out of the awarded amount, a sum of Rs.40,000/- shall be kept in fixed deposit in the name of the petitioner/claimant for a period of one year and the rest awarded amount along with cost and accrued interest thereon shall be paid in cash to the petitioner/claimant. The petitioner/claimant is directed to receive the same on depositing the required court fees for the same before the learned 1st MACT, Keonjhar. 17. Accordingly, the MACA No.335 of 2009 is disposed of finally. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 20-Sep-2024 20:57:11 Judge Orissa High Court, Cuttack The 20th of September, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Page 9 of 9