The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1170 of 2017 & MACA No.722 of 2017 MACA No. 1170 of 2017 Belamani Mahanta & Ors. …. Appellants Mr. P.K.Mishra, Advocate -versus- Birakishore Behera & Anr. …. Respondents
Legal Reasoning
Mr. S.Roy, Advocate for Respondents MACA No.722 of 2017 Divisional Manager, Oriental Insurance Co.Ltd. …. Appellant Mr. S.Roy, Advocate -versus- Belamani Mahanta & Ors. …. Respondents Mr. P.K.Mishra, Advocate CORAM: SHRI JUSTICE B. P. ROUTRAY
Decision
ORDER 21.03.2023 Order No. 6. 1. The matter is taken up through hybrid mode. 2. Heard Mr. Mishra, learned counsel for the Appellant and Mr. Roy, learned counsel for the Insurer-Respondents. 3. Both the appeals being arise out of the same judgment dated 16th May, 2017 passed by Additional District Judge-cum-4th Motor Accident Claims Tribunal, Keonjhar in MAC Case No. 15/66 of 2017-16, wherein compensation to the tune of Rs.7,61,020/- has Page 1 of 5 been granted along with interest @ 6 % per annum to the claimants from the date of filing of the claim application on account of death of the deceased in the motor vehicular accident on 16th November 2015, are heard together and disposed of by this common order. 4. The case of the Claimants is that the deceased while returning in his motor-cycle, parked the same on road side and standing nearby. At that time the offending Tractor Trolley bearing registration No. OR-09-N-2403 and OR-09-N-2404 being driven rash and negligently with high speed dashed the deceased as well as his motor-cycle. As a result of the accident, the deceased died and the motor-cycle was damaged. 5. The Claimants examined three witnesses on their behalf including P.W.2, the eye witness. No witness was examined from the side of the Insurance Company. But copies of some statements recorded by police under Section 161 Cr.P.C. in course investigation are produced and marked as exhibits on behalf of the insurer. The Insurer contention of the insurer is regarding movement of the motor-cycle at the time of accident and contributory negligence on the part of the deceased as its driver. 6. The Tribunal while adjudicating the claim has come to the finding under Issue No.2 that since the motor-cycle was damaged in the front side and the statements made by the witnesses before police are suggesting movement of the motor-cycle, contributory negligence to the extent of 50% is there on the part of the deceased as driver of the motor-cycle. Consequently, present Insurer of the offending Tractor Trolley is directed to pay only 50% of the total compensation amount. Page 2 of 5 7. As stated earlier, the Insurer did not examine any witness on their behalf but only relies on the statements recorded under Section 161 Cr.P.C. by police in course of investigation to substantiate their contention. On the other hand, P.W.2 is the eye witness of the accident and his evidence is clear to the extent that the motor-cycle was parked on road side when the offending Tractor Trolley dashed it being driven rash and negligently. This part of evidence of P.W.2 has not been sufficiently rebutted in his cross-examination. The Insurer has also failed to bring any material on record contrary to the same, except the statements of such witnesses recorded under Section 161 Cr.P.C. by the police. But the Tribunal has believed those statements recorded by police to disbelieve P.W.2. This approach of the Tribunal to place reliance on the statements recorded under Section 161 Cr.P.C. against direct evidence of P.W.2 is found against approved principles of evidence enumerated under Section 162 of the Cr.P.C. as well as the provisions of the Indian Evidence Act. The claim proceeding being a separate proceeding, specific evidence in support of contentions of respective parties are to be adduced and in absence of the same, no such conclusion based on 161 statements is permissible. Since the evidence produced from the side of the Insurance Company is insufficient to rebut the evidence of eye witness, the preponderance of probability is seen heavier in support of the contention of the Claimants. Accordingly, the finding of the Tribunal to contribute 50% negligence on the deceased as driver of the motor-cycle is set aside. It is held that the driver of the offending Tractor Trolley is Page 3 of 5 entirely negligent for the cause of accident and as such, its Insurer is liable to indemnify the entire compensation amount. 8. At this stage, it is submitted by Mr.Roy that the offending Tractor did not have any valid permit on the date of accident and so, he seeks right of recovery in favour of the Insurer. But it is seen that the offending Tractor Trolley is having unladden weight of 2710 K.G. and therefore, it cannot be considered as a heavy goods vehicle. It is also seen that the offending Tractor Trolley was not loaded with goods. Therefore, no prima facie requirement of permit is needed in respect of the same. So, no merit is found in the contention of Insurer to get right of recovery. 9. With regard to quantum of compensation, considering all such grounds advanced, including addition of future prospects to the extent of 25% and general damages with consortium to the extent of Rs.1,50,000/-, a modified compensation amount of Rs.14,01,022/- along with interest @6% per annum is proposed to the parties in course of hearing. This is agreed by Mr. Mishra, learned counsel for the claimants. Mr.Roy, learned counsel for the Insurer leaves it to the discretion of the Court. As such, the amount is fixed to that extent. 10. In the result, both the appeals are disposed of with a direction to the Insurer, i.e. Oriental Insurance Co. Ltd. to deposit the modified compensation of Rs. 14,01,022/- (Fourteen lakhs one thousand twenty two) before the Tribunal along with interest @6% per annum from the date of filing of the claim application within a period of two months from today; where-after the same shall be Page 4 of 5 disbursed in favour of the claimants on such terms and proportion to be fixed by the Tribunal. 11. On deposit of the award amount before learned Tribunal and filing of a receipt evidencing the deposit with a refund application before this Court, the statutory deposit made in MACA No. 722 of 2017 before this Court with accrued interest thereon shall be refunded to the Appellant-Insurance Company. 12. Urgent certified copy of this order be granted on proper application. Judge ( B.P. Routray) S.Das Page 5 of 5