The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.393 OF 2023 From the Judgment/Order dated 31.10.2022 passed by the learned 2nd Addl. District Judge-cum-3rd MACT, Cuttack in MAC Case No.747of 2018. The Divl. Manager, DOI, T.P. Cell, :::: M/s. New India Assurance Co. Ltd. Appellant -:: VERSUS ::- Ahalya Mishra & Ors. :::: Respondents For Appellant :::: Mr. S. Satpathy, Advocate (Company) For Respondents :::: Mr. S.C. Swain, Advocate (Respondent Nos. 1 to 3) Mr. P.K. Jena, Advocate (Respondent No. 4) ……… PRESENT :
Legal Reasoning
THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ---------------------------------------------------------------------------------- Date of Hearing- 21.03.2025 :: Date of Judgment- 21.03.2025 ---------------------------------------------------------------------------------- B.P. Satapathy, J. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. S. Satpathy, learned counsel appearing for the Appellant-Company, Mr. S.C. Swain, learned counsel appearing for Page 1 of 7 // 2 // the Claimants-Respondent Nos. 1 to 3 and Mr. P.K. Jena, learned counsel appearing for Respondent No. 4. 3. The present appeal has been filed by the Appellant-Company challenging Judgment dtd.31.10.2022 so passed by the 2nd Addl. District Judge-cum-3rd MACT, Cuttack in MAC Case No. 747 of 2018. Vide the said Judgment the Tribunal assessed the compensation at Rs.43,73,935/- along with interest @ 6% per annum payable from the date of filing of the claim application till its realization. The Tribunal also awarded default interest @ 12%, if the compensation so assessed is not deposited within the stipulated time period. 4. In support of the appeal learned counsel appearing for the Appellant-Company contended that basing on the salary drawn by the deceased for the month of July, the monthly income of the deceased was taken as the income for the purpose of calculation of the compensation. It is contended that taking into account the documents exhibited vide Ext. 20 & 20/1, since the allowances received by the deceased varies, the gross income reflected in the salary slip for the month of July, 2018 vide Ext. 20 should not have been taken as the income of the deceased. Page 2 of 7 // 3 // 4.1. It is also contended that since during the relevant period the D.L. of the accused driver was under suspension for the period from 08.08.2018 to 07.02.2019 and the accident took place on 13.08.2018, in view of such document, right of recovery should have been allowed. It is also contended that the Tribunal without proper appreciation of the materials placed, while wrongly assessed the compensation at Rs.43,73,935/- along with interest @ 6% per annum, also allowed default interest @ 12% per annum, which is on the higher side. 4.2. Making all these submissions learned counsel appearing for the Appellant-Company contended that had the Tribunal properly appreciated the aforesaid contention so raised by the Appellant, the compensation amount so awarded should have been assessed on the lower side and right of recovery should have been allowed as against Respondent No. 4-Owner. 5. Mr. P.K. Jena, learned counsel appearing for the Owner- Respondent No. 4 on the other hand contended that driver of the offending vehicle was employed by the Owner after due verification of the licence, which was valid at the relevant point of time. If for certain period the licence remained under suspension, as contended Page 3 of 7 // 4 // by the learned counsel appearing for the Appellant and it has not been proved that the Owner allowed the driver to drive the vehicle on the face of such suspension being brought to his notice, no liability can be fastened on the Owner-Respondent by allowing right of recovery. 5.1. In support of his aforesaid submission, reliance was placed to a decision of the Hon’ble Apex Court in the case of Singh Ram Vs. Nirmala & Ors. reported in 2018(3) SCC 800. Hon’ble Apex Court in Para 6 (vi) has held as follows:- “(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.” 5.2. It is contended that since the factum of suspension of D.L. was not within the knowledge of the Owner-Respondent, no right of recovery can be allowed, unless it is proved by leading cogent evidence that the same was within his knowledge. Page 4 of 7 // 5 // 6. Mr. S. Swain, learned counsel appearing for the Claimants- Respondents while supporting the impugned award, contended that no illegality or irregularity can be found with the impugned award. However, in course of hearing Mr. Swain contended that Claimants- Respondents will have no grievance, if the compensation amount will be reduced to Rs.40,50,000/- along with interest @ 6% per annum payable from the date of filing of the claim application till its realization. With regard to award of 12% default interest, learned counsel appearing for the Respondents-Claimants contended that this Court can pass appropriate order in that regard. 7. Mr. S. Satpathy, learned counsel appearing for the Appellant- Company left the aforesaid proposition made by the learned counsel for the Claimants-Respondents to the discretion of this Court. 8. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court while waiving out the default interest levied @ 12% per annum, is inclined to reduce the compensation amount to Rs.40,50,000/- along with interest @ 6% per annum payable from the date of filing the claim application till its realization. This Court accordingly while holding so, directs the Appellant-Company to deposit the compensation amount of Page 5 of 7 // 6 // Rs.40,50,000/- 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 proportionately in favour of the Claimants-Respondents proportionately in terms of the Judgment passed on 31.10.2022. 8.1. 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.40,50,000/- shall carry interest @ 7% per annum for the period starting from the expiry of the period of eight (8) weeks till its payment. 8.2. However, considering the fact that the D.L. of the driver of the offending vehicle was under suspension during the period from 08.08.2018 to 07.02.2019 and the accident having taken place on 13.08.2018, this Court is inclined to allow right of recovery as against the Owner-Respondent, but with the condition that, if any such application will be moved by the Appellant to recover the amount, the Appellant has to prove the fact that the same was within the knowledge of the Owner-Respondent No. 4. The Tribunal is also Page 6 of 7 // 7 // required to follow the decision rendered in the case of Singh Ram as cited (supra) while entertaining and deciding any application made by the Appellant for recovery of the amount. 8.3. On such deposit of the amount, the Appellant-Company shall be permitted to take back the statutory deposit along with accrued interest if any from the Registry on proper identification.
Decision
9. The appeal is accordingly disposed of. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack The 21st March, 2025/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Mar-2025 16:50:14 Page 7 of 7