Dismissed

National Insurance Co.Ltd. v. Dillip Gaud

Orissa HC8 Feb 2023MACA/126/2018

Case brief

AI extract

What is this about?

The Court disposed of an appeal by an insurer against a motor accident compensation award. It held the insurer failed to prove the vehicle was uninsured as it did not produce the requisite register. Compensation was enhanced to Rs.9,73,281/ considering loss of dependency and other factors.

What did the court decide?

Enhanced compensation of Rs.9,73,281/ with 6% interest directed to be deposited within two months. Liberty granted to insurer to recover compensation from owner subject to proof of non-insurance.

National Insurance Co.Ltd. Vs Dillip Gaud — Motor Accident Claims | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.126 of 2018

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(From judgment dated 20^th September, 2017 of learned 2^nd MACT, Sambalpur passed in MAC No.43 of 2004)

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Dillip Gauda and Others

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…. Respondents

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Advocate(s) appeared in this case:-

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For Appellant : Mr. G.P. Dutta, Advocate
For Respondents : Mr. P.K. Nayak, counsel for
Respondents 1 to 4(a)
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
8 th February, 2023

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B.P. Routray, J.

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The matter is taken up through hybrid mode.

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Heard Mr. G.P. Dutta, learned counsel for the insurer – Appellant and Mr. P.K. Nayak, learned counsel for claimant – Respondents 1 to 4(a).

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Present appeal by the insurer is directed against impugned judgment dated 20^th September, 2017 of learned 2^nd MACT, Sambalpur passed in MAC No.43 of 2004, wherein compensation to the tune of Rs.7,95,000/- along with interest @ 7.5% per annum has been granted on account of death of deceased Bhola Gaud in the motor vehicular accident dated 25^th November, 2003.

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MACA No.126 of 2018 Page 1 of 5

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The main challenge advanced by the insurer – Appellant is that the vehicle was not insured with them on the date of accident. In this regard the evidence adduced by O.P.W.1, the Administrative Officer of the Appellant in Sambalpur Divisional Office has been relied on.

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The case of the Appellant is that when the deceased was going in his two-wheeler, the offending vehicle, i.e. truck bearing registration number MH-31-AP-4722 being driven in rash and negligent manner caused the accident. The iron angles loaded in the cabin of the truck fell on the head of the deceased, who died while being shifted to the hospital.

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It is the specific case of the claimants that the offending vehicle was insured with the Appellant, i.e. National Insurance Co. Ltd. and the cover note No.31008766 was issued by Jharsuguda Branch Office, which was seized by police in course of investigation.

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The insurer in their WS have specifically denied about insurance coverage of the offending vehicle on the date of accident. To substantiate their stand, O.P.W.1 was examined from the side of the insurer and he has stated that the alleged cover note No.31008766 is a fake one and not issued either by the Jharsuguda Branch or any other branch.

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The owner did not come to contest the case and remained exparte . During pendency of the appeal, I.A. No.1589 of 2019 is filed by the Appellant praying to adduce additional evidence with regard to non-issuance cover note by them. Under Annexure-A in the I.A., a copy of the letter issued by Jharsuguda Branch to the Division office has been appended saying that upon verification no such cover note

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MACA No.126 of 2018 Page 2 of 5

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bearing number 31008766 found to have issued by Jharsuguda Branch.

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The law is settled that to deny insurance coverage, the insurer has to led specific positive evidence. In order to disown such liability, contrary to the claim of applicants, it is required to produce the relevant register before the court. When a particular policy number along with date and Branch number is given, it is incumbent upon the insurance company to search for those dates and produce evidence to the effect that on that particular day no such policy was issued in respect of the vehicle in question to sufficiently rebut the claim of the applicants.

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In the case at hand though the insurance company has pleaded that no such policy or the specific cover note was issued by them, still the requirement remains that they would have produced the relevant register of that particular date showing no such cover note or policy has been issued in respect of the offending vehicle. By merely contending that no such cover note has been issued or by stating orally so in the witness box, the burden fall on the insurance company is not discharged satisfactorily. Therefore, in the present facts of the case, it can safely be concluded that the insurance company has failed to disprove the contention of the claimants with regard to valid coverage of insurance policy. In the circumstances, the liability of the insurance company cannot be absolved from indemnifying the compensation amount. However, the insurance company is at liberty to claim recovery of the compensation amount from the owner in accordance with law, subject to satisfaction of non-existence of the policy.

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MACA No.126 of 2018 Page 3 of 5

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With regard to quantum of compensation, it is seen that the deceased was serving as Fitter in GRIDCO and getting salary of Rs.11,812/- per month. The tribunal After deducting the statutory tax amount has assessed his income at Rs.9,375/- and then deducting 1/4^th towards personal expenses has determined the loss of dependency. Here the claimants pray for addition of future prospects by filing cross-appeal. The deceased was aged about 56 years. Accordingly future prospects to the extent of 15% is liable to be added in his income in terms of the decision rendered in the case of National Insurance Company Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680 . Adding so, the loss of dependency is determined at Rs.8,73,281/and further adding Rs.15,000/- towards loss of consortium to the wife and 4 children and general damages of Rs.25,000/-, keeping the date of accident on 25^th January 2003 in view, the total compensation is determined at Rs.9,73,281/-, payable along with interest @ 6% per annum.

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In the result the appeal is disposed of with a direction to the insurer–Appellant to deposit enhanced compensation of Rs.9,73,281/(nine lakhs seventy three thousand two hundred eighty-one) before the tribunal along with interest @ 6% per annum from the date of filing of the claim application, within a period of two months from today; where-after the same shall be disbursed in favour of the claimant – Respondents 1 to 4(a) on such terms and proportion to be fixed by the learned tribunal.

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As observed earlier, the insurance company is granted with liberty to recover the compensation amount from the owner of the

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MACA No.126 of 2018 Page 4 of 5

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offending vehicle in accordance with law and subject to satisfaction that the vehicle is not validly insured.

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The statutory deposit and the award amount deposited by the Appellant – insurer before this court along with accrued interest be refunded to the insurer on proper application and on production of proof of deposit before the tribunal.

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The copy of evidence of O.P.W.1 as produced by Mr. Nayak in course of hearing is kept on record.

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An urgent certified copy of this order be issued as per rules.

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M.K.Panda, Sr. Steno

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( B.P. Routray)
Judge

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MACA No.126 of 2018 Page 5 of 5

National Insurance Co.Ltd. v. Dillip Gaud

Case brief

What is this about?

What did the court decide?

National Insurance Co.Ltd. v. Dillip Gaud

Case brief

What is this about?

What did the court decide?

What the court decided

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