The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1057 of 2017 And MACA No.850 of 2012 MACA No.1057 of 2017 Gayadhar Behera and another …. Appellants Mr.B.Singh, Advocate -versus- M/s.Geo Fast Carriers Pvt. Ltd. and others …. Respondents Mr.P.K.Mahali, Advocate for Respondent No.2 MACA No.850 of 2012 AND Kartik Ch. Mohapatra @ Kartik Mohapatra and others Appellant Mr.K.K.Das, Advocate …. -versus- M/s.Geo Fast Carriers Pvt. Ltd. and others …. Respondents Mrs.Prativa Mishra, Advocate for Respondent No.2 CORAM: JUSTICE B. P. ROUTRAY
Decision
ORDER 24.01.2023 Order No. 08. 1. 2. The matter is taken up through Hybrid mode. Heard Mr.Singh and Mr.Das, learned counsels for the claimants and Mr.Mahali and Mrs.Mishra, learned counsels for the Insurers. Page 1 of 8 3. Both the appeals filed by the claimants are arising out of the same accident involving India Car bearing Registration No.OR-01F-7202 and truck bearing Registration No.AP-29T- 6189. In the accident, three persons died and some others were injured. The deceased persons as well as the injured persons were the occupants of the Indica Car. 4. The common case of the claimants, i.e. MAC Case No.112 of 2006 in respect of death of Tapas Kumar Mohapatra and MAC Case No.52/136 of 2010/2006 in respect of death of Anil Kumar Behera, are that the deceased persons while going as occupants in the Indica Car, the truck was going in its front in the same direction on the National Highway. The truck all of a sudden applied its brake on right side of the road and as a result of the same, the Indica Car that was going it’s behind dashed the truck from behind resulting the accident. 5. The claim application was seriously contested by the Insurance Company. According to the Insurance Company, application of sudden brake by the driver of the truck as contended by the claimants is completely false and the fact remains that the truck was parked on the left side of the road near to check gate to pay the toll fee when the Indica Car, which was last member of carcade of the Barat Party of local MLA’s son, coming in a rash and negligent manner with high speed dashed behind the truck abruptly resulting the accident. 6. One eyewitness was examined from the side of the Insurer Company and two eyewitnesses were examined from the side of the claimants in both the cases to support their respective Page 2 of 8 contentions. One Basanta Kumar Jena (O.P.W.3) was examined in MAC Case No.112 of 2006 by the Insurance Company and one Baburam Nayak (P.W.2) was examined by the claimants in MAC Case No.52/136 of 2010/2006. Besides these eyewitnesses, the M.V.I. was examined as O.P.W.1 by the Insurance Company in MAC Case No.112 of 2006 and his report has been adduced in evidences in both the claim applications. Similarly, the copies of F.I.R. and investigation report of police have been relied on by the claimants in both the cases to support their contentions. 7. Learned Tribunal, in the impugned judgment dated 30th June, 2011 in MAC Case No.112 of 2006, has refused to grant any compensation by observing that the claim application is not maintainable and the claimants are not entitled to get any compensation from the Insurer of the truck. It needs to be mentioned here that in MAC Case No.112 of 2006, neither the owner of the Indica Car nor its driver were arrayed as parties and the claim application was filed against the owner and Insurer of the truck only. In MAC Case No.52/136 of 2010/2006, the Tribunal has directed the owner of the Indica Car to pay the compensation amount of Rs.8,76,000/- along with interest to the claimants on the ground that the driver of the Indica Car was solely negligent in causing the accident. 8. In other words, as per the observations of the Tribunal in both the applications, the driver of the truck was not negligent Page 3 of 8 in causing the accident but the driver of the Indica Car was solely negligent. 9. Mr.Das and Mr.Singh, both contends in same voice that there are ample materials to fix the negligence on the driver of the truck which is clearly evident from the police investigation report as well as from the oral evidence adduced by such eyewitnesses examined from the side of the claimants in both the cases. 10. Conversely, Mr.Mahali and Mrs.Mishra submit that report of the M.V.I., his evidence and the evidence of the independent eyewitness, namely, Basanta Kumar Jena are clearly suggestive of the fact of negligence on the driver of the Indica Car and thus, the Tribunal in both the claim applications has rightly concluded to fix the burden on the owner of the Indica Car. 11. MACA No.1057 of 2017 is arising out of the judgment passed in MAC Case No.52/136 of 2010/2006 and MACA Case No.850 of 2012 is arising out of MAC Case No.112 of 2006. As the cause of action in both the appeals, corresponding to both the claim applications are same, they are heard together and accordingly, the evidences adduced in both the claim applications are read cumulatively in order to appreciate the case of the parties. 12. As stated above, the entire dispute is on the question of negligence, whether to be attributable on the part of the driver of the Indica Car or the driver of the truck. Page 4 of 8 13. Undisputedly, the F.I.R. was lodged stating negligence of the truck driver and the police upon completion of investigation has submitted the charge-sheet for commission of offences under Sections 279/337/338/304-A against the driver of the truck, namely, Md.Allaudin. In order to deal with the evidences adduced by the eyewitness examined from the side of the claimants, namely, Baburam Nayak and Anirudha Behera, it is seen that, as per them the truck was going in front of the car and both the vehicles were in moving conditions. The truck driver applied sudden brake on the wrong side of the road and the driver of the Indica Car losing his control dashed it from behind. 14. Now looking to the oral evidence of the eyewitness adduced from the side of the Insurance Company, namely, Basant Kumar Jena, the truck was parked on the left side of the road when Indica car being driven in rash and negligent manner with high speed, dashed it from behind resulting the accident. Here, in order to know the truth, relevant circumstances are to be looked into. The informant, who lodged the F.I.R., has not been examined in either case. The M.V.I. has been examined as O.P.W.1 in MAC Case No.112 of 2006 and has stated that, he found upon examination of both the vehicles after the accident that the truck as well as the car were moving at the time of accident in the same direction. Here it is mentioned at the outset that evidence of the M.V.I. (Motor Vehicle Inspector) has the status of expert evidence. His opinion is relevant under Section 45 of the Indian Evidence Act as an expert. At the same time the investigation report submitted by the police does not carry such Page 5 of 8 benefit and the report submitted under Section 173(2) of the Cr.P.C. is mere opinion of the Investigating Officer who did not have any direct knowledge of the occurrence. At the same time it also needs to be mentioned here that the evidentiary value of the F.I.R. is for the purpose of corroboration or contradiction only. 15. In the instant case, when the author of the F.I.R. has not been examined in the witness box to testify the contents of the F.I.R., the same lost its evidentiary value to substantial extent. 16. What remains to be seen from the oral evidence adduced from both sides, vis-à-vis the expert opinion given through the M.V.I., is that, the balance point to be rested where ? Whether the offending truck was moving at the time of accident or it was in standing position. The report of the M.V.I. prepared under Ext.A as well as Ext.E is suggestive of the fact that the truck was moving at the time of accident. The status of the Indica Car as a moving object at the time of accident remains unquestioned. So, if the front vehicle was moving at that time when the rear vehicle dashed to it from behind, the negligence is on the driver of the rear vehicle. The spot of accident is a four- lane road, divided by road-divider. The spot map attached in the M.V.I. report as well as oral evidences of all those eyewitnesses do not reveal that much of crowd at the spot during that relevant time. When the technical report is confirmed in the evidence of the expert that the truck was moving at the time of accident, and the Indica Car dashed it from behind to cause the accident, negligence is established on the part of the driver of the car. So by weighing all such oral evidences along with police investigation report and M.V.I. report, the probability of possibilities is seen Page 6 of 8 higher with the negligence of driver of the Indica Car. Accordingly, this Court concludes that the driver of the car is negligent for the cause of accident entirely. Accordingly, the negligence aspect is answered. 17. So far as MAC Case No.112 of 2006 is concerned, admittedly neither the driver of the Indica Car nor its owner have been arrayed as parties. But only the truck owner and its Insurer have been arrayed as parties. Thus, in absence of any negligence on the part of the truck driver and consequently in absence of liability on the part of its owner and Insurer, the claim application, as opined by the Tribunal, is not maintainable in absence of its owner, and the finding of the Tribunal in this regard is confirmed. So, this Court does find any reason to interfere with the impugned judgment dated 30th June, 2011 passed in MAC Case No.112 of 2006, i.e. corresponding to MACA No.850 of 2012. 18. For the same reason, as discussed above, the finding of judgment dated 20th impugned the in the Tribunal held September, 2017 in MAC Case No.52/136 of 2010/2006 to saddle the owner of the Indica Car to pay the compensation to the claimants is confirmed, and no reason is seen to interfere with the same on such aspect. 19. In the result, both the appeals are dismissed. 20. Copies of the exhibits and evidences produced in course of hearing, by respective parties, are kept on record. Page 7 of 8 21. Urgent certified copy of this order be granted on proper application. Judge ( B.P. Routray) C.R.Biswal Page 8 of 8