The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.31 of 2007 Joshna Behera & Ors. …. Appellants Mr.S.Bahadur, Advocate -versus- Tusar Ranjan Panigrahi & Ors. Respondents Mr.S.K.Purohit, Advocate for Respondent No. 1 Mr.S.Satapathy, Advocate for Respondent No.2 …. Order No. 06. CORAM: JUSTICE B. P. ROUTRAY
Decision
ORDER 01.03.2023 1. 2. The matter is taken up through Hybrid mode. Heard Mr.Bahadur, learned counsel for the Appellant, Mr.Purohit, learned counsel for the Owner-Respondent No.1 and Mr.Satapathy, learned counsel for the Insurer-Respondent No.2 3. Present appeal by the Claimants is directed against judgment dated 23rd September, 2006 of Additional District Judge – cum –M.A.C.T., Sambalpur in Misc. (Accident) No.204/30 of 2002/04, wherein the learned Tribunal has refused to grant any compensation by disbelieving the case of the Applicants. 4. According to the Claimants, the deceased namely, Kishore Chandra Behera died being crushed by a Truck while crossing the road at Dhama under Dhannupali P.S. Page 1 of 6 5. Respondent No.1 is the admitted owner of two Trucks bearing registration No.ORS 8936 & CPK 975. Truck bearing registration No. ORS 8936 was validly insured with Oriental Insurance Co. Ltd. (Respondent No.2) on the date of accident. Truck bearing registration No. CPK 975 was uninsured one. 6. In the claim application, the Claimants initially pleaded that the deceased died due to involvement of Truck bearing registration No.CPK 975. Subsequently, the claim application was amended to the effect that Truck bearing registration No. OR 8936 is involved in the accident. 7. The owner also contested the case and according to him Truck bearing registration No. ORS 8936 is involved in the accident, but the driver was not negligent since the deceased, who is a mentally sick person, deliberately came under the wheels of the Truck. 8. The FIR was loged before Dhanupali P.S. under Ext.B stating that the Truck bearing registration No. CPK 975 caused the accident. The police seized said vehicle bearing registration No. CPK 975 and submitted the charge-sheet against its’ driver for commission of offences under Sections 279/304-A IPC. The police also seized truck – CPK 975 and the same was taken on Zima by the owner. 9. Two witnesses were examined from the side of the Claimant and one witness from the side of the owner. One witness was also examined by the Insurer and the copies of those police papers including FIR, seizure list, charge-sheet etc, were relied on by the Insurer. 10. P.W.2 is stated to the eye witness of the accident. As per his version, Truck bearing registration No. ORS 8936 caused Page 2 of 6 the accident being driven in a rash and negligence manner. The owner as O.P.W.1 supported the version of P.W.2 stating involvement of Truck bearing registration No. ORS 8936. 11. The Tribunal disbelieved the oral evidences of P.W.2 and O.P.W.1 and held that Truck bearing registration No. ORS 8936 is not involved in the accident but it was CPK 975 and accordingly refused to grant any compensation. 12. It is seen that except the oral statement of P.W.2 (as the eye witness of the accident), which is supported by the evidence of the owner, no other material has been produced to reveal involvement of truck bearing registration No. ORS 8936. But the circumstances speak against the oral evidences so adduced by P.W.2 and O.P.W.1. Admittedly the FIR was lodged stating involvement of the truck bearing registration No. CPK 9775 and police have submitted the charge-sheet against the driver of CPK 975. It is seen that the submission of charge-sheet by police against truck – CPK 975 and its driver is neither opposed by the owner nor the accused driver. The contents of the FIR are also not disputed by O.P.W.1 in his evidence. It is further seen that initially the claim application was filed stating involvement of the vehicle bearing registration No. CPK 975. But it is subsequently amended to mention ORS 8936. So all such circumstances and the conduct of the parties viz. the Claimant and the owner are seen doubtful and the observation of the Tribunal in this regard disbelieving involvement of Truck bearing registration No. ORS 8936 in the accident is found justified. The finding of the Tribunal is thus confirmed that the Claimant have failed to Page 3 of 6 establish involvement of Truck bearing registration No. ORS 8936 in the accident is confirmed. 13. Here it is submitted by Mr.Bahadur, learned counsel for the Appellant that even if the involvement of Truck bearing registration No. ORS 8936 is disbelieved, then also the owner- Respondent No.1 cannot escape from his liability since the involvement of Truck bearing registration No.CPK 975 is established as per the finding of the Tribunal. Therefore, at any circumstance, the owner- Respondent No.1 is liable to pay the compensation. 14. It is seen that admittedly the involvement of any other vehicle than those two Trucks belonging to Respondent No.1 is ruled out. As per the circumstances analyzed above the involvement of Truck bearing registration No. CPK 975 cannot be ruled out. So the question arises that, whether Respondent No.1 being the owner of Truck bearing registration No. CPK 975 be directed to pay the compensation? 15. It is seen that though involvement of the vehicle bearing registration No. CPK 975 is not ruled out, but negligence on the part of it’s driver must be established for saddling the liability. Here the other contention of the owner that the deceased being a mentally sick person had deliberately come under the rear wheels of the Truck has not been dealt with. In this regard the evidence of O.P.W.1 speaks that the deceased suddenly jumped under rear wheels of the Truck. It is seen that the Claimants while cross-examining this O.P.W.1 has not rebutted such statement of O.P.W.1 and as such, said part of the statement of O.P.W.1 has been left unassailed. Page 4 of 6 16. Mr.Purohit, learned counsel for the Owner-Respondent No.1 submits that when it is the specific case of the Claimants that the accident took place due to involvement of Truck bearing registration No. ORS 8936, then no liability can be fixed on the owner for any negligence in respect of vehicle bearing registration No. CPK 975. According to Mr.Purohit, taking benefit of the ownership of Respondent No.1 in respect of the vehicle bearing registration No. CPK 975 no liability can be saddled beyond the pleadings of the Claimants. 17. It is true that as per the pleadings of the Claimants the vehicle bearing registration No. ORS 8936 is involved in the accident. They have not said anything regarding involvement of the vehicle bearing registration No. CPK 975, though the fact remains that initially they have named truck – CPK 975 as the offending vehicle. But subsequently they amended their pleading saying involvement of vehicle bearing registration No. ORS 8936 in place of CPK 975. Under such situation, the submission of Mr.Purohit is seen with substance. Since it is not the case of the Claimants regarding involvement of vehicle bearing registration No. CPK 975 and they have not pleaded anything regarding said vehicle, now they cannot claim compensation from the same owner in respect of another vehicle by taking advantage of common ownership of both vehicles. As such, it is held that the Claimants are not entitled for compensation as they have failed to establish their case regarding the involvement of vehicle bearing registration No. ORS 8936 in the accident. 18. The appeal is accordingly disposed of. Page 5 of 6 19. The copies of evidences produced in course of hearing are kept on record. 20. Urgent certified copy of this order be granted on proper application. Judge ( B.P. Routray) S.Das Page 6 of 6