The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.516 of 2009 (From the judgment dated 16th January, 2009 passed by the learned 2nd M.A.C.T., Cuttack in Misc. Case No.444/91) M/s.Oriental Insurance Company Limited …. -versus- Alekha Chandra Routray and another …. Advocate(s) appeared in this case:- Appellant Respondents For Appellant : Mr. G.P. Dutta, Advocate For Respondents : Mr. S. Udgata, Advocate For Respondent No.2
Legal Reasoning
Mr. P.C. Patnaik, Advocate For LRs of original claimant- Respondent No.1 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 9th March, 2023 B.P. Routray, J. 1. Present appeal by the insurer, i.e. M/s.Oriental Insurance Co. Ltd. is directed against judgment dated 16th January 2009 passed by learned 2nd M.A.C.T., Cuttack in Misc. Case No.444/91, wherein compensation to the tune of Rs.70,000/- has been granted along with interest @7% per annum to the injured-claimant from the date of filing MACA No.516 of 2009 Page 1 of 7 of the claim application, i.e. 09.04.1991 on account of injury sustained by him in the motor vehicular accident dated 14.10.1990. 2. The involvement of the offending vehicle, i.e. Fiat Car bearing Registration No.OIU-5511 is seriously disputed by the Appellant- insurer. According to Mr. Dutta, learned counsel for the insurer, the Police upon completion of investigation submitted its charge-sheet stating mistake of facts. Therefore, when no criminal case was instituted against the accused-driver of the offending vehicle and no objection was raised by the original claimant before the criminal court, the case against the offending vehicle is not proved. Mr. Dutta further submits that as per the evidence of owner (O.P.W.2), the vehicle did not move on the date of accident and it remained ideal in her house. 3. Perusal of the impugned judgment reveals that the accident took place on 14.10.1990 at 7.30 P.M. The place of accident comes within the jurisdiction of Kandarpur Police Outpost. The FIR was lodged immediately after the accident at 8.10 P.M. by one Parikshita Sahoo, who was driving the same bicycle in which the injured (original claimant) was a pillion rider. In the FIR, the details of offending vehicle including its registration number were categorically mentioned. 4. The Police upon completion of investigation submitted the charge-sheet stating the alleged accident as a mistake of fact. It is not known whether any protest was filed against the final report submitted by the Police either by the injured or by the informant. None of the parties present before this Court including Mr. Patnaik, learned counsel MACA No.516 of 2009 Page 2 of 7 for the LRs of the original claimant-Respondent No.1 could able to answer this. 5. Two witnesses including the injured were examined from the side of the original claimant and both of them were eye-witnesses. One witness was examined from the side of the owner and one witness from the side of the insurer. O.P.W.2 is the owner herself and O.P.W.1 is the investigator of the Insurance Company. 6. As seen from the record, evidences have been laid from both sides on the question of involvement of the offending vehicle in the accident. When P.W.1 and 2 have categorically stated, as eye- witnesses, about involvement of offending vehicle in the accident and negligence of the driver in causing the accident, the owner of the vehicle has disputed the same in her evidence. In such situation, what is to be seen is how far the evidences are supporting the case of respective parties. All such material evidences produced in support of the contentions of respective parties need to be weighed in the scale of preponderance of probability. Perusal of copy of evidence of P.W.1 and P.W.2 clearly reveals involvement of the offending vehicle and negligence of its driver in causing the accident. In their cross- examination, nothing substantial could be elicited to disbelieve their version regarding involvement of the offending vehicle in the accident. On the other hand, O.P.W.1, the investigator of the Insurance Company is not an eye-witness to the accident. Similarly, O.P.W.2, the owner of the vehicle, is also not an eye-witness to the accident. Therefore, their evidences cannot substitute the statements of the P.W.1 and 2, who are the undisputed eye-witnesses. Besides, it is seen MACA No.516 of 2009 Page 3 of 7 that the statement of these eye-witnesses are supported by the contents of the FIR where the registration number with model of the offending vehicle has been categorically mentioned. The FIR was lodged promptly within 40 (forty) minutes of the accident and it is not that the informant bought sufficient time to falsely implicate the offending vehicle. It is further seen that, O.P.W.2 (the owner) has admitted in her evidence that neither she was examined by Police nor was her driver, namely Md. Ibrahim. The offending vehicle was also not verified by the Police. If the statements of O.P.W.2 will be believed, then the conduct of Police is found very disturbing that how the Police did not examine the driver of the offending vehicle or its owner despite details of the vehicle have been mentioned in the FIR. At the same time, it is further observed that neither the driver was produced by the owner for his examination before the Tribunal nor did the Insurance Company examine the informant in support of their contention. It is admitted by O.P.W.2 that the place of accident is nearer to her parental house and the same comes on the way from Cuttack to her parental house. Though it is stated by the owner that the offending vehicle did not move on the date of accident, but no step was taken either by the Police or by herself to examine the vehicle by any expert regarding its movement. Therefore the contention of the insurer based on Police Investigation Report does not merit any consideration. It is well-known that the investigation report is mere opinion of the Investigation Officer and therefore, does not per se have any evidentiary value. Most importantly, when opposite party witnesses are none other than the interested witnesses who have not seen the accident, the statement of MACA No.516 of 2009 Page 4 of 7 the eye-witnesses, particularly the independent eye-witness (P.W.2) prevails over the statements of those interested witnesses. 7. In view of such circumstances, the preponderance of probability is overwhelmingly heavier in favour of the contention of the injured- claimant. Therefore, all such contentions advanced by the insurer as well as by the owner to dispute involvement of the offending vehicle are rejected. It needs to be mentioned here that on the question of liability, none have questioned validity of the insurance policy or validity of driving license of the accused-driver nor any violation of policy conditions has been alleged. Thus the Insurance Company is held liable for payment of compensation amount. 8. So far as the quantification of the compensation amount is concerned, it is seen that learned Tribunal has stated that a sum of Rs.60,000/- is awarded as compensation and Rs.10,000/- towards treatment expenses, pain and suffering. Going through paragraph 7 of the impugned judgment, it is not understood what for Rs.60,000/- was counted by the learned Tribunal. Since the injured (original claimant) died in the meantime during pendency of the present appeal and his LRs being brought on record upon substitution, they are not entitled to any amount towards non-pecuniary loss. Further, the claimants have filed their cross-objection praying for enhancement of the compensation amount stating that a higher amount has been spent towards medical expenses. MACA No.516 of 2009 Page 5 of 7 9. In absence of clarity in the award of compensation amount by learned Tribunal, this Court is inclined to compute the compensation amount afresh, based on the materials produced on record, as per discussions made hereinafter. 10. It is seen that no document with regard to treatment expenses have been produced by the original claimant. The injury report speaks about three simple injuries on the middle right leg, right thigh and over the skull near occipital region. However, as per the Discharge Certificate under Ext.2, he sustained with fracture of pelvis with rupture of urethra and he was under treatment as an indoor patient in SCB Medical College & Hospital, Cuttack from 14.10.1990 to 22.10.1990. Considering the fact that SCB Medical College & Hospital, Cuttack is a Government Hospital and the period of treatment of the injured in the Hospital as an indoor patient, a sum of Rs.16,000/- is assessed by guess work towards medical expenses. As per the original claimant (injured), he was working as a salesman in Ajanta Cloth Store at Choudhury Bazar, Cuttack and getting Rs.5500/- per month. However, no document towards his income was produced nor any other evidence, except his oral statement, could be brought on record. P.W.2 has stated that the injured was working as a salesman in a cloth store. Thus considering the prevalent rate of wages prescribed during the year 1990, his income is assessed at Rs.750/- per month. So considering his nature of injuries, the actual loss of income is assessed at Rs.4,000/-. Admittedly no permanent disability is there. Accordingly, the compensation amount is modified and determined at Rs.20,000/-, payable along with interest @6% per annum. MACA No.516 of 2009 Page 6 of 7 11. In the result, the appeal is disposed of with a direction to the Appellant-Oriental Insurance Co. Ltd. to deposit the modified compensation amount of Rs.20,000/- (rupees twenty thousand) along with interest @6% per annum from the date of filing of the claim application, i.e.09.04.1991 before learned Tribunal 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 decided by learned Tribunal. 12. 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 by the Appellant with accrued interest thereon be refunded to him on proper application. 13. The copies of the depositions and exhibits produced in course of hearing by Mr. G.P. Dutta, learned counsel for the insurer-Appellant are kept on record. (B.P. Routray) Judge B.K. Barik/Secretary MACA No.516 of 2009 Page 7 of 7