O.I.Co.Ltd Vs Bijaya Swain

IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.214 of 2011

M/s.Oriental Insurance Co. Ltd.

…. Bijaya Swain and others Respondents Mr. K. Das, Advocate for Respondent No.1 Mr. P.K. Mahali, Advocate for Respondent No.4

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CORAM: JUSTICE B. P. ROUTRAY

ORDER

08.08.2024

Order No.

Heard Mr. G.P. Dutta, learned counsel for the AppellantM/s.Oriental Insurance Company Ltd., Mr. K. Das, learned counsel for Respondent No.1-claimant and Mr. P.K. Mahali, learned counsel for Respondent No.4-M/s.National Insurance Company Ltd.

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Present appeal by the insurer is directed against the judgment dated 08.10.2010 of learned 2^nd M.A.C.T., Cuttack in Misc. Case No.453 of 1998, wherein compensation to the tune of Rs.2,82,700/- has been granted along with interest @7% per annum to the claimant from the date of filing of the claim application, i.e.1.5.1998 on account of injury sustained by him in the motor vehicular accident dated 9.9.1996.

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The facts of the case are that, the injured-claimant was travelling in a Bus bearing Registration No.ORG-4602 as a passenger at the time of accident when Truck bearing

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 09-Aug-2024 16:23:31

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Registration No.OR-02-B-5717 dashed it coming from the opposite direction. The claimant was injured in the accident and he underwent treatment at different hospitals thereafter.

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It is submitted on behalf of the Appellant-M/s.Oriental Insurance Co. Ltd., who is the insurer of the Bus, that, on the date of accident the Bus was not insured with them, but it was insured subsequently w.e.f. 29.12.1996 valid till 28.12.1997. It is further stated that, the driver of the Bus had no negligence for the cause of accident.

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The accident took place on 9.9.1996 and admittedly, the insurance papers, i.e. the cover note and the Police seizure list reveals that, the policy of the insurance was effected w.e.f. 29.12.1996 till 28.12.1997. It is stated on behalf of the Appellant that, since the period of policy does not cover the date of accident, the Appellant-insurer is not responsible to indemnify the compensation amount.

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Admittedly, learned Tribunal has directed the insurer of the Bus and insurer of the Truck to indemnify the compensation amount on 50:50 ratio. M/s.National Insurance Co. Ltd. (Respondent No.4) has already satisfied the compensation on his part. What is now challenged by M/s.Oriental Insurance Co. Ltd., who is the insurer of the Bus that, in absence of valid policy on the date of accident, they are not liable to indemnify the owner.

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 09-Aug-2024 16:23:31

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It is true that, the insurance companies, including the Appellant-insurer, have not adduced evidence on their part. The Appellant-insurer despite their pleading of denial of valid insurance did not come forward to produce any material to satisfy the fact that the Bus was not insured with them on the date of accident. The concerned register showing payment of premium or any other document in this regard was never been bothered by the Appellant to bring on record. It is well-known that, to disprove coverage of policy in respect of the offending vehicle, the insurer has to bring positive evidence. When it is true that the insurance policy for the subsequent period is valid, then there is no point to disbelieve, in absence of positive materials, for having no valid insurance on the date of accident which is a previous date. As such, this Court concludes that, the Appellant-insurer was valid insurer of the Bus on the date of accident and liable to indemnify the compensation amount on their part.

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So far as the other contention is concerned to deny negligence on the part of the driver of the Bus, such submissions urged by the Mr. G.P. Dutta is found not sustainable. It is for the reason that, P.W.2 in his cross-examination has categorically stated that both the drivers of both vehicles are responsible for the accident and besides that, it is a front collision between both the vehicles. Therefore, the assessment of the Tribunal to fix negligence on both the drivers at equal ratio cannot be faulted with.

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In the result, the appeal is dismissed and the Appellant i.e. M/s.Oriental Insurance Co. Ltd. is directed to deposit his part of

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 09-Aug-2024 16:23:31

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compensation amount as per the direction of the learned Tribunal within a period of two months from today.

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On deposit of the award amount before the learned Tribunal and filing of a receipt evidencing the deposit with a refund application before this Court, the statutory deposit made before this Court with accrued interest thereon shall be refunded to the Appellant-Insurance Company.

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( B.P. Routray)

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Judge

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B.K. Barik

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 09-Aug-2024 16:23:31

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