The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA Nos.388 of 2019, 315 of 2019 & 673 of 2020 (From the judgment dated 16th February, 2019 passed by learned 7th M.A.C.T., Bhubaneswar in M.A.C. No.3424 of 2014) In MACA No.388 of 2019 Divisional Manager, United India Insurance Company Limited …. -versus- Appellant Panchei Pradhan and others …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. P. Sinha, Advocate For Respondents : Mr. P.K. Mishra, Advocate For Respondent Nos.1 & 2
Legal Reasoning
Mr. B. Panigrahi, Advocate For Respondent No.3 In MACA No.315 of 2019 Panchei Pradhan and another …. Appellants -versus- NAC Infrastructure Equipment Ltd. and another …. Respondents Advocate(s) appeared in this case:- For Appellants : Mr. P.K. Mishra, Advocate For Respondents : Mr. P. Sinha, Advocate For Respondent No.2 Mr. B. Panigrahi, Advocate For Respondent No.1 MACA Nos.388 & 315 of 2019, 673 of 2020 Page 1 of 9 In MACA No.673 of 2020 NAC Infrastructure Equipment Ltd. …. Appellant -versus- Panchei Pradhan and others …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. B. Panigrahi, Advocate For Respondents : Mr. P.K. Mishra, Advocate For Respondent Nos.1 & 2 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 27th February, 2023 B.P. Routray, J. 1. All the three appeals being arise out of the same judgment dated 16.02.2019 of learned 7th MACT, Bhubaneswar in M.A.C. No.3424 of 2014, wherein compensation to the tune of Rs.5,16,000/- has been granted in favour of the claimants along with simple interest @7% per annum from the date of filing of the claim application, i.e. 27.10.14 on account of death of the deceased in an accident dated 19.6.2010, are
Decision
heard together and disposed of by this common judgment. 2. Heard Mr. P. Sinha, learned counsel for the Insurance Company, Mr. P.K. Mishra, learned counsel for the claimants and Mr. B. Panigrahi, learned counsel for the owner. MACA Nos.388 & 315 of 2019, 673 of 2020 Page 2 of 9 3. MACA No.388 of 2019 has been preferred by the Insurance Company challenging the award mainly on the ground that the insurance policy does not cover the risk of the accident being a CPM Policy (Contractor’s Plant and Machinery). Thus the Insurance Company disowns its liability to pay the compensation amount. 4. MACA No.315 of 2019 has been filed by the claimants praying for enhancement of the compensation amount mainly on the ground of non-addition of future prospects and loss of consortium. In this appeal, the claimants are exempted from payment of Court fees for the time being. 5. MACA No.673 of 2020 has been preferred by the owner challenging the direction of the learned Tribunal granting right of recovery in favour of the Insurance Company against him. The delay in filing this appeal is condoned upon hearing all the parties and particularly keeping in view filing of respective appeals by the Insurance Company as well as the claimants against the same judgment. MACA Nos.388 & 315 of 2019, 673 of 2020 Page 3 of 9 6. The accident took place on 19.6.2010 on the public road near Kaling Vihar, Bhubaneswar. At that time, the deceased was coming in his motorcycle. 7. The vehicle involved in the accident is a ‘Transit Mixer’ having Registration No.AP-28-W-9080. As per the contention of Mr. Sinha, learned counsel for the insurer, the same does not fall within the category of a motor vehicle and therefore, it was not authorized to ply on the public road. Undoubtedly, the copy of certificate of the insurance, as produced in course of hearing by Mr. B. Panigrahi, learned counsel for the owner and not disputed by the other parties, speaks that it is an equipment having Chasis No.396522CTZ204988/Mixer Sl. No.31458, Engine No.60C62463471 with Registration No.AP-28-W-9080. No dispute has been raised with regard to period of policy covering the date of accident. At Column No.4, it is mentioned that the risk coverage includes damages to 3rd party injuries or property during movement between different places of sites and vice versa, upto Rs.50,00,000/- per accident or up-to rupees one crore in one year. MACA Nos.388 & 315 of 2019, 673 of 2020 Page 4 of 9 8. As per the definition contained at Rule 2 (cab) of the Central Motor Vehicles Rules, 1989, “construction equipment vehicle” means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, self-propelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fork lift truck, self- loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with “on or off” or “on and off” highway capabilities. From the aforesaid definition, it is clear that a self-loaded concrete mixer or any other construction equipment vehicle or combination thereof comes within the category of construction equipment vehicle. Therefore, the word ‘equipment’ spelt in the certificate of insurance denotes the equipment as construction equipment vehicle. As per the explanation attached to Rule 2(cab) of the Central Motor Vehicles Rules, 1989, a construction equipment vehicle may be driven on road incidental to the main off-highway function for a short duration only with limited speed. The explanation reads as follows: MACA Nos.388 & 315 of 2019, 673 of 2020 Page 5 of 9 “Explanation.—A construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power.” 9. Now coming to the liability aspect, as in the present case is, the policy speaks that 3rd party injuries and damages during the movement from one site to another is covered upto such limits mentioned in the policy. Here Mr. P. Sinha submits that in view of an earlier decision of this Court dated 23.8.2022 rendered in MACA No.815 of 2020, the risk coverage in respect of CPM Policy cannot be stretched to cover the risk provided under the M.V. Act in respect of a 3rd party. Such submission of Mr. Sinha is found without merit. It is for the reason that the policy itself covers movement of the construction equipment vehicle for incidental off-highway functions, i.e. regarding movement of the same from one site to another. When specific conditions mentioned in the policy covers the risk of 3rd party injuries and permits limited movement of the construction equipment vehicle, then no force remains in the contention of Mr. Sinha to exclude the accident beyond the coverage of its risk. The earlier decision of this Court is found MACA Nos.388 & 315 of 2019, 673 of 2020 Page 6 of 9 distinguishable from the present facts of the case since in that case the CPM Policy did not prescribe such conditions of movement of the construction equipment vehicle on public road or coverage of any 3rd party injuries during such movement. 10. It is true that a CPM Policy is not the same statutory policy according to the provisions contained in Section 147 of the M.V. Act. But in view of the peculiar facts of the case at hand, when specific conditions of risk coverage mentioned in the policy clearly speaks in favour of 3rd party risk, then the direction of learned Tribunal for recovery of compensation amount from the owner is found unjustified. The same is accordingly set aside. 11. Next coming to the quantum of compensation, the contention of the claimants that no amount towards loss of consortium to the parents of the deceased is granted and no future prospects have been added, are found correct on the face of impugned judgment. The learned Tribunal after computing loss of dependency has added Rs.30,000/- to the same towards funeral expenses and loss of estate only. The deceased was a bachelor and the claimants are the parents. Therefore, as per the principles decided in the case of Magma General Insurance Company MACA Nos.388 & 315 of 2019, 673 of 2020 Page 7 of 9 Limited vs. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130, the claimants are found entitled to a further sum of Rs.60,000/- towards filial consortium keeping in view the date of accident on 19.6.2010. 12. It is stated that the deceased was a mason and his income has been fixed at Rs.150/- per day. Since he was aged about 21 years on the date of accident, future prospects to the extent of 40% is liable to be added on such income assessed by the learned Tribunal. Doing so, a further sum of Rs.1,94,400/- is found liable for addition to the loss of dependency. Thus in total the compensation amount is enhanced to Rs.7,70,400/-, payable along with interest @6% per annum. 13. In the result, all the appeals are disposed of with a direction to the insurer, i.e. United India Insurance Company Limited to deposit the modified compensation of Rs.7,70,400/- (rupees seven lakhs seventy thousand four hundred) before the Tribunal along with interest @6% per annum from the date of filing of the claim application, i.e. 27.10.2014 within a period of two months from today; where-after the same shall be disbursed in favour of the claimants on such terms and proportion to be fixed by the Tribunal. MACA Nos.388 & 315 of 2019, 673 of 2020 Page 8 of 9 14. 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.388 of 2019 before this Court with accrued interest thereon shall be refunded to the Insurance Company. 15. The copy of the insurance policy as produced by Mr. B. Panigrahi, learned counsel for the owner in course of hearing is kept on record. (B.P. Routray) Judge B.K. Barik/Secretary MACA Nos.388 & 315 of 2019, 673 of 2020 Page 9 of 9