Dismissed

Icici Lombard Genera v. Jemamani Rout

Orissa HC14 Dec 2023MACA/1164/2012

Case brief

AI extract

What is this about?

Athin the High Court of Orissa, the appellant insurance company challenged a Motor Accident Claims Tribunal award granting compensation to the deceased's family. The insurer sought to adduce additional evidence regarding insurance coverage. The Court denied the application for remand and dismissed the appeal, confirming the Tribunal's award due to the insurer's prior failure to adduce evidence.

What did the court decide?

The appeal is dismissed and the award passed by the Tribunal is confirmed.

Icici Lombard Genera Vs Jemamani Rout — Banking and Recovery | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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MACA No.1164 of 2012

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ICICI Lombard Geenral Insurance Company, Ltd., Bhubaneswar

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Appellant

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Mr. A.A.Khan,Advocate

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-versus-

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Jemamani Rout & Ors. ….

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Respondents Mr. P.K.Mishra, Advocate for Respondent No.5

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CORAM:

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JUSTICE A.K. MOHAPATRA

ORDER

Order No.

14.12.2023

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard learned counsel for the appellant-insurance company as well as learned counsel appearing for claimant-respondents. Perused the appeal memo as well as documents place before this Court.

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The present appeal has been filed challenging award/judgment dated 27.01.2012, in MAC Case No.105 of 2006, passed by the 3^rd MAC Jajpur. The factual matrix of the claimant’s case in short is that, on 25.10.2006, at about 6.30 P.M. in the evening, when the deceased, namely one Subash Chandra Rout, was going to Barabati Market, the offending vehicle coming from the opposite direction, i.e. from the side of Kuakhia, caused accident. The offending vehicle was a Bolero Jeep bearing Registration No.OR-05-W-6300 was driven by the driver on NH-5 where the accident took place. As a result of the aforesaid accident, the deceased had suffered severe head injuries, as well as multiple injuries to his person, after which he was taken to Community

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Health Center, Dharmasala for treatment, and then he was shifted for treatment to SCB Medical College and Hospital, Cuttack. Since the condition of the victim became critical he was admitted in the department of neurosurgery in the SCB Medical College, and thereafter, the victim had to undergo treatment from 25.10.2016 to 12.12.2016. Finally, the victim succumbed to the injuries sustained, and expired at 3:30 A.M. on 12.12.2016. It has been pleaded by the claimants that the road where the accident took place is a national Highway, therefore, the same is a wide road, and the visibility was very good from a distance. It has also been stated that the accident was caused due to rash and negligent driving by the driver of the offending vehicle. So far the deceased is concerned, it is stated by the claimants that, he was a very hard working man, and was about 49 years of age at the time of death. The deceased was a grocery shop owner and as such was earning about Rs.3000/- per month. Apart from the income from the grocery shop, the deceased was earning around Rs.24,000/- annually from agricultural activities on his own land measuring about 7 acres. As a result of death of the deceased, the entire family has suffered a huge financial loss, and loss of his love and affection. In the claim case, the learned Tribunal issued notice to the opposite parties, wherein all the opposite parties appeared except Opposite Party No.1, i.e. owner of the offending vehicle. Hence, the opposite party No.1 was set ex-parte and as such he did not participate in the trial. The opposite party No.2, i.e. present appellant-Insurance company, filed its written statement denying and disputing all the averments made by the Claimant-Respondent. The insurance company had specifically pleaded that the offending Bolero Jeep was not insured with the Opposite Party No.2-Insurer and, that the driver of the said vehicle did not have a valid driving license at the time of the accident. In the appeal, it has also been stated that the present claim application has been filed collusively by the owner and the claimants in order to get money from the insurance company. The

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learned trial Court on the basis of the pleadings from the parties framed 4 issues. In reply to the issue No.1 the learned Tribunal has Come to a conclusion that as a result of the accident the deceased died on 12.12.2006 at SCB Medical College, Cuttack while undergoing treatment there. Therefore, the claimants, by adducing evidence before the tribunal have proved that the accident caused by the offending vehicle bearing Registration No.OR-05-W-6300, was the cause death of the deceased at the relevant date, time and place. The claimants in support of their case examined two witnesses and filed documents from Exhibit 1 to 10. So far the respondents-insurance company is concerned, neither oral nor documentary evidence were adduced before the Tribunal.

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In reply to issue No.2 the learned tribunal, after taking into consideration the evidence adduced, has come to a specific finding that, the income of the deceased was Rs.3000/- per month by deducting 1/4^th of the income towards the personal expenditures. Keeping in view the age of the deceased to be around 49 years at the time of his death, the learned tribunal had applied “13” multiplier to the loss of dependency, which was calculated at Rs.27,000/- and, accordingly, calculated a total compensation amount of Rs.3,51,000/-. Further, the learned Tribunal has also awarded a sum of Rs.2,500/- towards funeral expenses of the deceased, Rs.5,000/- towards loss of consortium, Rs.10,000/- towards loss of love and affection for the children, and, Rs.2,500/- towards loss of estate. Additionally, a sum of Rs.15,000/- was set towards medical expenses. Therefore, the learned Tribunal, in total, has awarded a sum of Rs.3,86,000/- as compensation for the deceased.

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So far issue No.3 is concerned, i.e. liability to pay compensation to the claimants, the learned Tribunal while answering the issue No.3, has specifically observed that no oral or documentary evidence have been adduced, by the Opposite Party No.2, with regard to justification of denial of payment of the compensation amount. Accordingly,

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tribunal has drawn inference with regard to validity of the insurance policy by relying upon the seizure list which was exhibited in, Ext. 3 of the MAC case. The seizure list reveals that the insurance policy of the offending vehicle was valid up to 10.02.2007. Therefore, the claim is covered by the aforesaid policy as the accident took place on 25.10.2006.

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So far issue No.4 is concerned; the same is answered by the tribunal by granting interest at the rate of 6% from the date of filing of the claim application i.e. 23.12.2006, till payment of the award amount. Learned counsel for the appellant-insurer at the outset submitted that, the vehicle was not covered under the any insurance policy issued by the appellant at the relevant point of time. In the aforesaid context, the learned counsel for the appellant filed an application, in the present appeal, for submission of additional evidence in Misc. Case. No.1331 of 2015. By referring to the aforesaid Misc. Case, the learned counsel for the insurance company submitted that, although the copy of the cover note bearing No.1032566 was available with the insurance company, however, the same could not be produced during trial. He further contended that such cover note was misplaced and took a long time to locate the same. Finally, when the said cover note was located, an application has been filed in the appeal to adduce additional evidence.

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Learned counsel for the respondent on the other hand opposed the application for adducing additional evidence. It was submitted by learned counsel for the respondent that, by way of amendment application, the appellant should not be permitted to fill up its lacunae/latches in adducing evidence. He further contended that in view of the provisions contended Order 41 Rule 27 of the C.P.C., additional evidence is furnishable only where the party seeking to furnish such evidence, even after exercise of due diligence, could not get such evidence, or that such evidence was not within his knowledge, or the

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evidence is of such nature that it came into existence after the trial was over. In the aforesaid context, learned counsel for the respondent referred to the judgment of the Hon’ble Supreme Court in Jiten K. Ajmera and another V. Tejas Co-operative Housing Society reported in 2019 (II) OLR (SC) 581 . On perusal of the aforesaid judgment this court observes that, in the reported judgment certain materials were sought to be introduced by way of additional evidence at the appellant stage. The Hon’ble Supreme Court has categorically observed that, under Order 41 Rule 27, a party can produce additional evidence at the appeal stage, if it establishes that notwithstanding the exercise of due diligence, such evidence was not within its knowledge, or could not even after the excise of due diligence, be produced at the time when the decree appeal against was passed. The Hon’ble Supreme Court while deciding the aforesaid case also referred the judgment in the case of A. Andisamy Chettiar vs. A. Subburaj Chettiar reported in (2015) 17 SCC 713 .

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Reverting back to the fact of the present case, this Court found that, although sufficient opportunity was provided to the appellantinsurer, however, no evidence whatsoever was adduced in support of their pleadings that the offending vehicle was not covered by the insurance policy of the appellant-insurer. Although, such pleadings have been taken, however, no supporting evidence, either oral or documentary, was placed before the Court below. Moreover, while deciding the issue No.3, the learned Tribunal has categorically held that there is an absence of any relevant evidence, therefore, it is by referring to the seizure list that the Tribunal has arrived at a conclusion that the vehicle was insured and, accordingly, the case has been decided on the basis of such evidence available on record. Further, this Court observes that, in the pleadings, the appellant-insurer was aware of the fact that the vehicle was not covered by insurance policy, or at least such a ground was taken. However, no effort whatsoever such made to

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establish such fact by adducing any relevant evidence. The accident which took place in the year 2006 was the subject matter of the MAC Case which was decided in the year 2012. Thereafter, the present appeal was filed in the year 2012. While the appeal was pending, a Misc. Case No.1331 of 2015 was filed on 27.07.2015, with a prayer to adduce additional evidence. The aforesaid factual aspects clearly reveal the negligent manner in which the case has been conducted by the Insurer. 9. In view of the aforesaid factual analysis, as well as keeping in view of the settled disputes, this Court after a gap of almost 17 years from the date of accident and, 11 years from the date of award, is not inclined to remand the matter back to the tribunal by reopening the case which has been finalized more than a decade ago. This Court is also of the considered view that, such an order of remand will cause injustice to the claimants. Moreover, the appellant-insurer is bound to suffer because of its negligence and latches. In the aforesaid background of the present case, this Court is not inclined to interfere with the impugned award passed by the tribunal. Accordingly, the award passed by the Tribunal is confirmed. The appeal preferred by the insurance company/insurer is hereby dismissed.

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( A.K. Mohapatra ) Judge

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Rubi

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Signature Not Verified

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Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: Orissa High Court Date: 20-Dec-2023 19:37:08

Icici Lombard Genera v. Jemamani Rout

Case brief

What is this about?

What did the court decide?

Icici Lombard Genera v. Jemamani Rout

Case brief

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What did the court decide?

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