The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA Nos.915 & 2015 OF 2016 From the Judgment/Order dated 16.04.2016 passed by the learned 2nd MACT, Northern Division, Sambalpur in MAC Case No.111 of 2010. Nirmal Ku. Mahanta :::: Appellant MACA No.915 OF 2016 -:: VERSUS ::- Akshaya Ku. Mallick & Anr. :::: Respondents MACA No.1015 OF 2016 Divisional Manager, M/s. Oriental Insurance Co. Ltd. :::: Appellant -:: VERSUS ::- Nirmal Ku. Mahanta & Anr. :::: Respondents
Legal Reasoning
For Appellant :::: Mr. P.K. Mishra, Advocate (Appellant-Company) For Respondent :::: Mr. P.K. Mahali, Advocate (Claimant-Respondent) ……… PRESENT : THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ---------------------------------------------------------------------------------- Date of Hearing- 12.12.2024 :: Date of Judgment- 12.12.2024 ---------------------------------------------------------------------------------- B.P.Satapathy, J. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. Page 1 of 5 // 2 // 2. Heard learned counsel appearing for the Parties. 3. Since both the appeals have been filed challenging Judgment
Decision
dtd.16.04.2016, both are heard analogously and disposed of vide the present common order. 4. In support of enhancement of the award, learned counsel for the Appellant-Claimant in MACA No. 915 of 2016 contended that even though disability of the Injured was found at 45% and such disability certificate was exhibited vide Ext. 6 without objection, but the Tribunal by taking the same as 10-15% towards loss of earning capacity awarded compensation of Rs.2,75,000/- with interest @ 6% per annum. 4.1. It is accordingly contended that had the disability certificate so exhibited would have been properly appreciated, Appellant- Claimant would have been entitled to get higher compensation. 5. Mr. Mahali, learned counsel appearing for the Appellant- Company in MACA No. 1015 of 2016 on the other hand contended that the policy taken by the offending vehicle since was cancelled because of dishonour of the cheque so issued by the Owner of the offending vehicle, the Appellant-Company because of such cancellation of the policy, should not have been saddled with the liability and the Owner-Respondent is liable to pay the compensation amount so assessed. It is accordingly contended that the Appellant-Company has been illegally saddled with the liability, which requires no interference of this Court. Page 2 of 5 // 3 // 6. To the aforesaid submission made by Mr. Mahali, Mr. Mishra, learned counsel for the Appellant in MACA No. 915 of 2016 contended that since factum of cancellation was never intimated to the concerned RTO, in view of the decision of the Hon’ble Apex Court in the case of United India Insurance Co. Ltd. Vs. Laxmamma, (2012) 5 SCC 234, the liability has been rightly fixed on the Appellant in MACA No. 1015 of 2016. But in view of the said decision right of recovery should have been allowed by the Tribunal as against the Owner-Respondent. Hon’ble Apex Court in Para 26 of the aforesaid Judgment has held as follows:- "26. In our view, the legal position is this: where the policy of insurance is issued by an authorised insurer on receipt of cheque towards the payment of premium and such a cheque is returned dishonoured, the liability of the authorised insurer to indemnify the third parties in respect of the liability which that policy covered subsists and it has to satisfy the award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the MV Act unless the policy of insurance is cancelled by the authorised insurer and intimation of such cancellation has reached the insured before the accident. In other words, where the policy of insurance is issued by an authorised insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonoured and before the accident of the vehicle occurs, such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance company's liability to indemnify the third parties which that policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof." 7. Mr. Mahali, learned counsel appearing for Respondent No. 2- Company in MACA No. 915 of 2016 does not dispute the contention raised by Mr. Mishra, learned counsel for the Appellant- Company with regard to the ratio decided in the aforesaid case. Page 3 of 5 // 4 // 8. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court is of the view that on the face of the disability certificate exhibited vide Ext. 6, the Tribunal should not have held the compensation at Rs.2,75,000/- with interest payable @ 6%. This Court is also of the view that taking into account the nature of disability, ends of justice will be met, if compensation amount is enhanced to Rs.3,00,000/- with interest payable @ 6% per annum payable from the date of application till its realization. Placing reliance on the decision in the case of Laxmamma as cited (supra), this Court is of the view that the Tribunal should have allowed the right of recovery as against the Owner-Respondent. 8.1. This Court accordingly while holding so, directs the Appellant- Company to deposit compensation amount of Rs.3,00,000/- along with interest @ 6% per annum payable from the date of filing of the claim application till its realization within a period of eight (8) weeks from the date of receipt of this order. On such deposit of the amount, the Tribunal shall disburse the same in favour of the Claimant-Respondent in terms of the Judgment passed on 16.04.2016. 8.2. However, it is observed that if the amount as directed will not be deposited by the Appellant-Company within the aforesaid time period of eight (8) weeks, the compensation amount of Rs.3,00,000/- shall carry interest @ 7% per annum payable for the period starting from the expiry of the period of eight (8) weeks till its payment. On such deposit of the entire amount as directed, Appellant-Company in MACA No. 1015 of 2016 will be permitted Page 4 of 5 // 5 // to take refund of the statutory deposit along with accrued interest if any from the Registry on proper identification. 8.3. It is further observed that if any application is filed by the Appellant in MACA No. 1015 of 2016 to recover the amount from the Owner-Respondent, the Tribunal shall do well to dispose of the application in accordance with law and by giving due opportunity of hearing to the Owner-Respondent. 9. Both the appeals are accordingly disposed of with the aforesaid observation and direction. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack The 12th December, 2024/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Dec-2024 12:31:10 Page 5 of 5