The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.86 of 2020 MACA No.86 & 85 of 2020 National Insurance Co. Ltd., represented by its Divisional Manager, Cuttack DO-1, Cuttack …. Appellant in both the appeals Mr. P.K. Mahali, Advocate -versus- Santanu Naik and Others …. Respondents in both the appeals
Legal Reasoning
Mr. P.K. Mishra, counsel for Respondents 1 to 3 CORAM: SHRI JUSTICE B. P. ROUTRAY
Decision
ORDER 11.8.2023 Order No. 08. 1. The matters are taken up through hybrid mode. 2. Heard Mr. P.K. Mahali, learned counsel for the insurer – Appellant and Mr. P.K. Mishra, learned counsel for the claimant – Respondents. 3. Both the appeals being arise out of same accident dated 28th October, 2012 involving same offending vehicle, are heard together and disposed of by this common order. 4. MACA No.85 of 2020 is corresponding to MAC Case No.27/235 of 2015-12 and MACA No.86 of 2020 is corresponding to MAC Case No.28/236 of 2015-12, both on the file of learned Page 1 of 5 Additional District Judge-cum-4th MACT, Keonjhar relating to death of two persons, namely Srikanta Naik and Kuni Naik respectively. 5. The facts of the case are that, deceased Srikanta and Kuni are husband and wife and the common claimants are their children. On 28th October 2012 the offending vehicle, i.e. tractor – trolley bearing registration number OR-09-P-0930 and OR-09-P-0931 dashed and run over both the deceased persons causing their death. Accordingly Champua P.S. Case No.120 dated 28th October 2012 was registered for commission of offences under Sections 279/337/338/304-A I.P.C. In course of investigation, it came to light that the driver of the offending vehicle, namely Gandhi Munda, had some earlier dispute with the son of the deceased persons on 22nd October 2012. On 28th October 2012 the deceased persons had sold Tiffin near the foot ball ground of their village in their push-cart. At that time, the driver (accused) had been there and ate snacks from the deceased persons and did not pay money. When the deceased persons and their son demanded money from Gandhi Munda, a quarrel ensued and there was hot altercations of words. The accused – driver Gandhi Munda left the place with threatening to see their end. Subsequently when both the deceased persons returned after selling Tiffin at around 6.30pm, the accused driver ran over the offending vehicle on them causing their death. Srikanta died at the spot and Kuni died at the Hospital. Accordingly, the case was turned to offence under section 302 I.P.C. and charge-sheet was submitted against the accused driver, Gandhi Munda. It is submitted that the trial is still pending before the concerned Sessions court. Page 2 of 5 6. Mr. Mahali, learned counsel for the insurer submits that since the case has now been turned as a case of murder and charge-sheet has already been filed and charge has been framed by the learned Additional Sessions Judge, Champua in S.T. Case No.40 of 2013, the claimants are not entitled for compensation under Section 166 of the MV Act. 7. Before delving into the submissions of Mr. Mahali, it needs to be mentioned here that admittedly the trial in the criminal case is still pending. Further the involvement of the offending vehicle in the occurrence and validity of its insurance policy remains undisputed. It is well settled that the evidences brought in a criminal case arising out the same accident is for a different purpose and cannot be relied on in the claim application filed for the purpose of compensation. Hon’ble Supreme Court in Smt. Rita Devi and Others v. New India Assurance Co. Ltd. and Another, 2000(2) T.A.C. 213 (SC) have observed that, the difference between a murder which is not an accident and a murder which is an accident depends on the proximity of the cause of such murder. 8. In the instant case when the trial on the charge of murder is pending before learned Additional Sessions Judge in the criminal proceeding, it is difficult to accept the contentions of the insurer to accept the death of the deceased as a murder simplicitor. To see otherwise, even if the contention of the insurer is accepted that this is a case of murder, then also rash and negligent driving on the part of the accused driver cannot be separated from the act. Whether it is a murder simplicitor or accidental murder or accident simplicitor, the essential requirement of negligence in use of motor vehicle would Page 3 of 5 remain present in every case. Therefore, the contention of Mr. Mahali that the claim for compensation is not entertainable under Section 166 of the MV Act is found unacceptable from any angle. The language used in Section 147 of the M.V. Act is clear and specific that “by use of or arising out of the use of the vehicle”. Further, the word ‘accident’ is not defined in the MV Act. When the use of the offending vehicle in the accident (or to say the occurrence) is not disputed and the validity of the insurance policy is admitted, the liability on the part of the owner and corresponding insurance company cannot be denied. Thus, this court agrees with the conclusion arrived by the tribunal to fix the liability on the insurance company to pay the compensation amount. 9. Next coming on the question of quantum of compensation, no substantial dispute could be raised by the insurer to disturb the amount in favour of the insurer. On perusal of the computation, the same is found without any infirmity in absence of any appeal from the side of the claimants. Accordingly, the same is confirmed. 10. In the result both the appeals are dismissed by confirming the direction of the tribunal in the impugned judgment and the Appellant – insurer is directed to deposit the respective amount of compensation in both the cases including interest before the tribunal as per its direction, within a period of two months from today, where-after the same shall be disbursed in favour of the claimants on same terms and proportion as contained in the impugned judgment. 11. It is made clear that this court has not disturbed the right of recovery granted in favour of the insurer by the tribunal. Page 4 of 5 12. The statutory deposit made by the insurer - Appellant in both the appeals before this court along with accrued interest be refunded on proper application and on production of proof of deposit of the award amount before the tribunal. 13. The copies of F.I.R. and charge-sheet as produced by Mr. Mishra in course of hearing are kept on record. 14. An urgent certified copy of this order be issued as per rules. Judge M.K.Panda ( B.P. Routray) Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Senior Steno Reason: Authentication Location: OHC, Cuttack Date: 11-Aug-2023 15:24:33 Page 5 of 5