The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.445 of 2020 & MACA No.298 of 2020 (From the judgment dated 22nd January, 2020 passed by learned 1st M.A.C.T., Kendrapara in M.A.C. Case No.133 of 2015) In MACA No.445 of 2020 Manager, M/s.Royal Sundaram Alliance Insurance Company Limited …. Appellant -versus- Langa Majhi and others …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. A.A. Khan, Advocate For Respondents
Legal Reasoning
: Mr. K.C. Nayak, Advocate For Respondent Nos.1 to 3 In MACA No.298 of 2020 Langu Majhi and others …. Appellants -versus- Bimal Charan Sahoo and another …. Respondents Advocate(s) appeared in this case:- For Appellants : Mr. K.C. Nayak, Advocate For Respondents : Mr. A.A. Khan, Advocate For Respondent No.2 MACA Nos.445 & 298 of 2020 Page 1 of 9 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 7th February, 2023 B.P. Routray, J. 1. The notice on Respondent No.4 in MACA No.445 of 2020 is treated sufficient in view of the Office note. 2. It is submitted that during pendency of the appeals Claimant No.1, namely, Langa Majhi, who is Respondent No.1 in MACA No.445 of 2020 and Appellant No.1 in MACA No.298 of 2020, died on 10.2.2021 and all other claimants being on record, no substitution is required to be made in respect of the deceased. Accordingly, his name is deleted from both the appeals. 3. Heard Mr. A.A. Khan, learned counsel for the insurer and Mr. K.C. Nayak, learned counsel for the claimants. 4. Both the appeals being arise out of the same judgment dated 22.01.2020 of learned 1st MACT, Kendrapara in M.A.C. Case No.133 of 2015 wherein compensation to the tune of Rs.5,05,000/- has been granted along with interest @6% per annum to the claimants from the MACA Nos.445 & 298 of 2020 Page 2 of 9 date of filing of the claim application, i.e. 24.12.2015, are heard
Decision
together and disposed of by this common judgment. 5. Mr. Khan, learned counsel submits on behalf of the insurer that the deceased was a gratuitous passenger in respect of goods carrying vehicle and secondly, the owner himself was driving the vehicle at the time of accident without any valid driving license. Therefore it is submitted by Mr. Khan that the insurer is not liable to indemnify the compensation amount. 6. MACA No.298 of 2020 has been filed by the claimants praying for enhancement of the compensation amount on the ground of non- addition of future prospects to the income of the deceased. 7. It is seen that as per the claimants, the deceased was watching a meeting by standing on the road side when the offending vehicle, i.e. Mini Truck bearing Registration No.OR-21-E-4356 ran over him being driven in a rash and negligent manner. 8. But it is the case of the insurance company, based on the FIR story, that the deceased was travelling in the offending Mini Truck at the time of accident which was capsized and 20 persons sustained MACA Nos.445 & 298 of 2020 Page 3 of 9 injuries due to the accident. The name of the driver was Bimal Charan Sahoo as per the FIR, who is the admitted owner of the offending vehicle. Accordingly upon completion of investigation, the Police submitted charge-sheet against said owner-cum-accused driver for commission of offences under Sections 279/337/338/304-A, I.P.C. Thus it is contended by the insurer that the offending vehicle was a goods carriage vehicle and the deceased was an occupant in the same as a gratuitous passenger. 9. Learned Tribunal has turned down such contention of the insurer by relying on the oral evidence adduced from the side of the claimants. It is seen from the oral evidence of P.W.1 and 2 that the accident took place when the deceased was standing by the side of N.H.5-A, i.e. Paradeep-Duburi Express High Way. Amongst them, P.W.2 is the eye- witness, who has stated categorically that at the time of accident the deceased was standing by the side of the road. The insurance company has examined one witness as O.P.W.1, who is one of their officers. In addition to his oral evidence, the insurance company had also taken support from the Police papers like FIR, investigation report, etc. filed by the claimants, to prove their contentions. Admittedly, O.P.W.1 is not the eye-witness of the accident and his evidence is mainly on MACA Nos.445 & 298 of 2020 Page 4 of 9 validity of the insurance policy. What is mentioned in the FIR as well as other documents submitted by the Police reveal that the deceased was travelling in the offending vehicle, which is a goods vehicle at the time of accident. At the same time, it is to be noted here that the informant, who is a Police Officer, is not the eye-witness of the accident. Therefore what is stated by the eye-witness (P.W.2) that the deceased was standing by the side of the road prevails upon such findings given in the Police papers including investigation report and the contention of the claimants is found established in this regard. 10. On the other hand, the contention raised by the insurer before this Court regarding the status of the deceased as a gratuitous passenger in the offending vehicle is rejected. 11. So far as the other contention of the insurer is concerned, the owner of the offending vehicle, namely, Bimal Charan Sahoo, has been charge-sheeted as the accused driver of the offending vehicle at the time of accident. This fact is not disputed by the claimants. The owner also did not come to contest the case to dispute such contention. Therefore, the fact as contended by the insurer and supported by the Police investigation report that the owner was driving the offending MACA Nos.445 & 298 of 2020 Page 5 of 9 vehicle at the time of accident is established in absence of any challenge to the same. It is specifically pleaded in the written statement of the insurer that said owner-cum-driver of the offending vehicle did not have valid driving license on the date of accident and against this contention of the insurer, the owner did not choose to contest. As stated earlier, he remained silent despite service of notice and was set ex- parte consequently. Therefore the fact that the owner-cum-driver of the offending vehicle did not have a valid license to drive the vehicle on the date of accident is also established, in absence of any challenge to the same. The Tribunal has also held the same that the owner was driving the offending vehicle at the time of accident without having a valid and effective driving license. But here, learned Tribunal by relying on the decision of the Supreme Court in the case of National Insurance Co. Ltd. vs. Kusum Rai and others, (2006) 4 SCC 250, have held that even in absence of any driving license on the part of the driver, the insurer is liable to pay the compensation amount initially and recover the same from the insured later. 12. In the case of Kusum Rai and others (supra), the owner was not the driver of the offending vehicle, but it is alleged that the owner has permitted a person to drive the vehicle, who has no valid driving MACA Nos.445 & 298 of 2020 Page 6 of 9 license. The Supreme Court by referring to many other decisions including the case of National Insurance Co. Ltd. vs. Swaran Singh and others, (2004) 3 SCC 297, have observed that, since the owner has not appeared and the alleged driver did not have a driving license and to save the victim from sufferings, in such peculiar facts and circumstances, directed the insurer to pay the compensation amount and recover the same from the owner in exercise of the jurisdiction under Article 136 of the Constitution of India. 13. In the case at hand, when it is established that the owner himself is the driver and did not have the valid driving license at the time of accident, it cannot be said that he has violated the conditions of policy unknowingly. In the case of Swaran Singh and others (supra) as well as in the case of Nirmala Kothari vs. United India Insurance Company Limited, (2020) 4 SCC 49, the position has been clarified that when the owner has consciously permitted the vehicle to be driven by a person without having authorization to drive, the insurer is absolved of his liability. 14. In the given facts of the present case, the applicability of Kusum Rai’s case as held by the learned Tribunal is found distinguishable. MACA Nos.445 & 298 of 2020 Page 7 of 9 Accordingly, it is held that when the owner himself drove the vehicle consciously without having a valid driving license, the insurer is not liable to indemnify the owner for the compensation amount. In such situation, the insurer is absolved of his liability to indemnify the owner since the owner has deliberately and knowingly violated the conditions of policy. So, as per the principles laid down in the decisions discussed above, the insurer is exempted from the liability of payment of compensation for the owner. 15. With regard to the contention of the claimants for enhancement of compensation amount, it is seen from the impugned judgment that learned Tribunal has forgotten to add future prospects to the income of the deceased while computing loss of dependency. By adding the same, the compensation amount is enhanced to Rs.6,97,000/-, payable along with interest @6% per annum. 16. In the result, both the appeals are disposed of by exempting the insurance company, i.e. M/s. Royal Sundaram Alliance Insurance Company Limited from payment of compensation amount and the claimants are at liberty to realize the same, i.e. the enhanced amount stated above, from the owner of the offending vehicle, who is MACA Nos.445 & 298 of 2020 Page 8 of 9 Respondent No.4 in MACA No.445 of 2020 and Respondent No.1 in MACA No.298 of 2020. 17. The statutory deposit made in MACA No.445/2020 before this Court with accrued interest thereon shall be refunded to the Appellant- Insurance Company. 18. The documents produced by Mr. Khan, learned counsel for the insurer in course of hearing are kept on record. (B.P. Routray) Judge B.K. Barik/Secretary MACA Nos.445 & 298 of 2020 Page 9 of 9