The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.585 of 2023 HDFC ERGO, General Insurance Co. Ltd. …. Appellant Mr. G.P.Dutta, Advocate Karmi Hembram & Ors. …. Respondents -versus- CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 01.11.2023 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the appellant as well as learned counsel appearing for the claimant-respondents. 3. Learned counsel for the Respondent submitted a copy of the deposition on behalf of the O.P. No.1 is kept on record. 4. On perusal of the record it appears that the Respondent No.1 did not contest in the Court below, as a result of which he was an ex-parte by the learned Tribunal. Perused the appeal memo as well as the documents filed along with the appeal memo. 5. Mr. G.P.Dutta, learned counsel appearing for the Appellant- Insurance Company submitted before this Court that the driver of the vehicle involved in the accident was not having a valid license. In the aforesaid context, drawing attention of this Court to the evidence of one Sanjana Sahoo, who was working as the Manager Legal of the appellant-insurance company at the relevant point of time, Mr. Dutta submitted that although the vehicle bearing registration No.OD-11-K- // 2 // 1369 was insured covering list for the period from 22.01.2020 to 21.01.2020 under Two Wheeler Liability Policy, however, such insurance policy was subject to the terms and condition mentioned in the policy document. He further contended that the deceased was moving on the road as a pillion rider of a motor cycle bearing registration No. OD-11-R-3801 and said motor cycle collided with another motor cycle bearing registration No.OD-11-K-1369, which was being driven by one Luchhu Murmu, who was having a D/L bearing No.OR-0520110275024. As a result of the accident, the above named Luchhu Murmu died, accordingly a criminal case was registered against him which has abated in the meantime on the death of the accused. 6. Thereafter, the present claim case has been filed impleading the owner of the motor cycle bearing No.OD-11-K-1369 as a party, however the owner of motor cycle OD-11-R-3801 was not added as a party before the tribunal. In view of the aforesaid facts, Mr. Dutta, learned counsel appearing for the appellant-Insurance Company submitted that the present case is a case of contributory negligence, where the driver of the offending motor cycle was not having a valid driving license at the time when the accident occurred. He further submitted that this fact has been brought on record by adducing oral and documentary evidence before the Tribunal. However, the learned tribunal has not taken a note of the aforesaid material evidence while delivering the final judgment and awarding compensation amount. So far the contributory negligence part is concerned, it appears from the record that the driver of the vehicle was charge-sheeted. Therefore, the ground of contributory negligence would not be available to the learned counsel for the appellant in the present application. 7. Learned counsel for the claimant-respondent on the other hand contended that in the present case the victim has died. He further contended that the learned Tribunal after taking into consideration the // 3 // materials on record as well as referring to the oral evidence of the witnesses vide judgment dated 15.02.2023 has rightly granted a compensation amount of Rs.14,06,136/- along with interest @ of 6%. In such view of the matter, learned counsel appearing for the claimant- respondent submitted that the award is a reasonable one and the same has been passed after taking into consideration the evidence adduced before the Tribunal by both sides. 8. Having heard learned counsel appearing for the parties and on perusal of impugned judgment dated 15.02.2023, this Court observes that the learned Tribunal while delivering the award has not taken into consideration the grounds raised by the Insurance Company with regard to the valid license of the driver of the offending motor cycle. Moreover, this Court also observes that the quantum of compensation awarded by the Tribunal is on the higher side in view of the fact that the income of the deceased has not been conclusively established. 9. Considering the fact that the deceased was working at the relevant point of time and the income assessed by the trial court appears to be on a higher side, the award needs to be varied on quantum ground. However, this Court considering the submission made by learned counsels appearing for parties and further taking into consideration the submission of the learned counsel for the appellant that this Court may fix a reasonable amount of compensation, as would be deemed proper in the facts and circumstances of the case, deems it proper to direct that a consolidated sum total of Rs.13,00,000/- along with 6% interest would be just and fair in the factual background of present case. 10. Mr. Behera learned counsel appearing for the claimant- respondent submits that he has no objection to the re-fixed quantum of compensation. Mr. Dutta, learned counsel for the appellant-insurance company leaves it to the discretion of this Court. In the aforesaid background of this Court in the larger interest of justice, deems it proper // 4 // to modify the award to the extent that the Insurance Company shall now pay a total compensation of Rs.13,00,000/- along with interest @ of 6% per annum from the date of application within a period of two months from today. Since the driver of the offending vehicle was not having a valid driving license, liberty is given to the insurance company to move an application for recovery of the amount from the owner in accordance with law. In the event, such an application is filed, the learned Court shall grant an opportunity to the owner before passing any final order for recovery. On production of the receipt showing proof of payment of awarded amount before the Registry of this Court, then the Registry is directed to release the statutory deposit along with interest in favour of the appellant-Insurance Company. 10. With the aforesaid observations/ directions the appeal stands disposed of. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 07-Nov-2023 10:48:52