Branch Manager, Oriental Insurance Co. Ltd. Vs Saraswati Barai

Instant appeal is filed by the appellant Insurance Company challenging the liability as well as the quantum of compensation directed in MAC Case No.120 of 2014 by the learned 1^st MACT, Bolangir with an award dated 6^th November, 2021 on the grounds stated therein.

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Mr. Satpathy, learned counsel for the appellant Insurance Company would submit that the manner in which the accident took place and deposed by the claimants, witnesses examined from the side of the claimants respondent Nos.1 to 3 run contrary to the material on record, since the F.I.R lodged by Gramrakhi reveals that the accident had taken place with a tanker bearing Registration No. OR-15N-8776. It is further submitted that there is no sufficient evidence on record regarding the salary of the deceased, which has

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been accepted at Rs.9000/- considering a Salary Certificate issued by P.W.3, the so-called employer. It is also submitted that assuming for the sake of argument, there is a head-on collision between the motorcycle and the offending vehicle, namely, tanker, there was contributory negligence by the deceased and therefore, the liability should not be entirely saddled on the appellant Insurance Company. Lastly, it submitted that loss of consortium for an amount of Rs.1,60,000/- is not permissible since it should have been a sum of Rs.40,000/- only, hence, a case is made out for reduction in compensation.

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On the contrary, Mr. Joshi, learned counsel for claimants respondent Nos.1 to 3 justifies the impugned award and submits that there is no evidence with regard to contributory negligence, inasmuch as, the chargesheet is filed against the driver of the offending vehicle, namely, tanker. It is further submitted that the learned Tribunal considered the evidence in its entirety and reached at a conclusion fixing the liability on the owner to be indemnified by the appellant Insurance Company since the vehicle to be insured. As to the income of the deceased, Mr. Joshi further submits that on the basis of the salary certificate marked as Ext.11, it has been accepted and as such, there is no rebuttal evidence towards it from the side of the appellant Insurance Company.

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Having regard to the evidence received by the learned Tribunal, though one of the co-passengers, namely, P.W.2 claimed differently as to the manner in which the accident took place but after the F.I.R having been lodged, it has resulted in submission of the chargesheet against the driver of the offending vehicle. In other words, after the investigation by the local police, the involvement of the vehicle such as motorcycle as well as the tanker is prima facie established with the chargesheet filed, hence therefore, the Court is

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not inclined to take a different view that one arrived at after police investigation though it does not reconcile with evidence of P.W.2.

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In so far as the income of the deceased is concerned, the same is fixed at Rs.9000/-. Such conclusion is reached at on the strength of Ext.11 i.e. salary certificate issued by P.W.3 and according to him, the deceased was one of his employees at the relevant point of time. Referring to the deposition of P.W.3, an attempt has been made by Mr. Satpathy, learned counsel for the appellant Insurance Company to suggest that the evidence on such income is not sufficient or conclusive but then in absence of any rebuttal evidence, as the appellant Insurance Company would have called for the record maintained in the establishment, the Court is not inclined to accept such a contention. In other words, the Court is of the view that accepting Ext.11, the salary has rightly been treated as Rs.9000/of the deceased as an employee of P.W.3.

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In so far as the contributory negligence is concerned, admittedly, there has been no such report against the rider of the motorcycle, namely, deceased. Since the chargesheet is filed against the driver of the offending vehicle, it has to be prima facie held that he was responsible for the accident and not the deceased. Had it been a case of contributory negligence, it could have been revealed from the police record but then the investigation resulted in filling of the chargesheet only against the driver of the tanker. Hence, such plea of Mr. Satpathy, learned counsel for the appellant Insurance Company is not accepted. As to the loss of consortium, the Court is, however, inclined to accept the contention of Mr. Satpathy, learned counsel for the appellant Insurance Company as the learned Tribunal wrongly fixed it at Rs.1,60,000/-, which is impermissible, instead of Rs.40,000/-. With the calculation made and accepting the loss of consortium at Rs.40,000/-, the compensation is arrived at

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Rs.17,01,000/-, which in the considered view of the Court, is payable to the claimants respondent Nos.1 to 3. The Court is also inclined to delete and dispense with the penal interest which has been levied on the compensation in the facts and circumstances of the case.

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Mr. Satpathy, learned counsel for the appellant Insurance Company relies on extract of the D.L. issued by the RTO, Sambalpur marked as Ext. B and also R.C. Book i.e. Ext. A to contend that there was no endorsement in the DL regarding license to drive transport vehicle carrying hazardous substance at the relevant point of time since it was valid between 6^th August, 2014 and 4^th December, 2014, whereas, the accident took place on 14^th May, 2014. Such question has not been dealt with by the learned Tribunal, though it was pleaded by the appellant Insurance Company, hence, therefore, considering the submission of Mr. Satpathy, learned counsel for the appellant Insurance Company, the Court is of the view that the same should be examined with proper notice to respondent No.5, namely, the owner of the offending vehicle.

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Hence, it is ordered.

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In the result, the appeal stands allowed in part. Consequently, the impugned award in MAC Case No.120 of 2014 dated 6^th November, 2021 by the learned 1^st MACT, Bolangir is hereby modified to the extent as aforesaid with a direction to the appellant Insurance Company to deposit Rs.17,01,000/- along with the interest at the rate of 6% per annum within eight weeks from today and in the event, the deposit so made, it shall immediately be disbursed in favour of the claimants respondent Nos.1 to 3. The Court further directs that the statutory deposit along with accrued interest thereon shall be refunded to the appellant Insurance

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Company soon after the deposit and disbursement of the compensation amount in favour of the claimants respondent Nos.1 to 3. It is also directed that the recovery right in favour of the appellant Insurance Company is left open for a decision by the learned Tribunal with a notice to respondent No.5.

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Urgent certified copy of this order be issued as per rules.

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(R.K. Pattanaik) Judge

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Balaram

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Signature Not Verified

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Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 27-Mar-2024 15:11:57

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Branch Manager, Oriental Insurance Co. Ltd. v. Saraswati Barai

Case brief

What is this about?

What did the court decide?

Branch Manager, Oriental Insurance Co. Ltd. v. Saraswati Barai

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Procedural history

Parties & counsel

Coram

Case details

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