Sadyasmita Mohapatra Vs Suryasnta Mohapatra

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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MACA No.625 of 2020

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Sadyasmita Mohapatra & another …. Appellants Mr. P.K. Mishra, Advocate

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-Versus-

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Suryasnta Mohapatra & another …. Respondents Mr. G.P. Dutta, Advocate for Respondent No.2

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CORAM: JUSTICE R.K. PATTANAIK

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DATE OF JUDGMENT:13.05.2024

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1 . Instant appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to ‘the M.V. Act’) is filed by the claimants challenging the impugned judgment dated 19^th February, 2020 passed in M.A.C. Case No.66 of 2014 by the learned 1^st Additional District Judge-cum-1^st M.A.C.T, Cuttack, whereby, an application under Section 166 of the M.V. Act at their behest was dismissed with a nil award on the grounds inter alia that the same is not tenable in law as compensation was to be directed payable by respondent No.2 being the insurer.

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2 . As per the appellants, the claim application under Section 166 of the M.V. Act was filed after the death of their mother in a motor accident involving a vehicle bearing registration No. OR 05 AS 7514. According to the claimants, the deceased mother was aged about 57 years and was working as an Assistant Teacher under the District Inspector of Schools, Jagatsinghpur. It is pleaded that the deceased, who was travelling as a pillion rider in the offending vehicle having a comprehensive policy and on account of her death, respondent No.2 is liable to cover the risk,

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MACA No.625 of 2020 Page 1 of 8

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however, learned Tribunal disallowed the same with a nil award for the reason stated.

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3 . In fact, learned Tribunal on the basis of the pleading on record, framed the following issues, such as: (i) whether the claim application under Section 166 of the M.V. Act is maintainable? (ii) whether the alleged accident dated 30^th October, 2012 took place with the death of the deceased due to rash and negligent driving of the rider of the offending vehicle bearing registration No. OR 05 AS 7514? and (iii) whether the claimants are entitled to any such compensation and to what extent and who among the owner and the insurer is liable to pay such compensation? Learned Tribunal discussed the evidence on record and thereafter, passed the nil award. The claim for compensation by the appellants before the learned Tribunal was challenged by respondent No.2 Insurance Company with a plea that an unknown vehicle caused the accident and as such, no any report was lodged with the local PS and hence, therefore, it is not liable to indemnify the owner.

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4 . Heard Mr. Mishra, learned counsel for the appellants and Mr. Dutta, learned counsel for respondent No.2 Insurance Company. None represents respondent No.1.

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5 . It is pleaded that the learned Tribunal committed serious error in dismissing the claim application on the premise that the appellants failed to prove the rashness and negligence of the rider of the motorcycle and on such other grounds.

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6 . Mr. Mishra, learned counsel for the appellants would submit that the offending vehicle was insured with respondent No.2 with a comprehensive/package policy and hence, learned Tribunal fell into error by dismissing the claim application filed under Section 166 of the M.V. Act and while contending so, he refers to a

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MACA No.625 of 2020 Page 2 of 8

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decision of the Apex Court in the case of National Insurance Company Ltd. Vrs. Balakrishnan and Another 2013(1) T.A.C. 1 (S.C.) . It is further contended that the rashness and negligence of the rider of the vehicle is prima facie established from the evidence of the witnesses examined further corroborated with the report of the local police in U.D. case. As per Mr. Mishra, the rider of the offending vehicle was possessed of a valid D.L. and the said vehicle to be insured with respondent No.2 under a comprehensive/package policy to cover the risk of a pillion rider and hence, the appellants as the LRs of deceased, are entitled to receive compensation.

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7 . On the contrary, Mr. Dutta, learned counsel for respondent No.2 submits that not only the negligence of the rider of the vehicle has not been proved and established but also the claimants being the children of the deceased as daughters of the rider of the offending vehicle and respondent No.1, the registered owner is also a daughter, in the facts and circumstances of the case, since the owner and insurer of the other vehicle found involved in view of the investigation report marked as Ext. C, the deceased being not a 3^rd party, there lies no liability and hence, learned Tribunal committed no wrong in dismissing the claim application of the appellants. While advancing such an argument, Mr. Dutta cited a decision of the Apex Court in the case of Ramkhiladi and another Vrs. United India Insurance Company and another AIR 2020 SC 527: AIR Online 2020 SC 14.

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Mr. Mishra, learned counsel for the appellants produced the certified copies of the evidence received by the learned Tribunal with other relevant documents for perusal of the Court.

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It is not being disputed by respondent No.2 with regard to the policy package of the offending vehicle. Any such comprehensive policy in respect of the vehicle has not been challenged by the

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MACA No.625 of 2020 Page 3 of 8

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insurer before the learned Tribunal. So, the Court is to proceed on the premise that the offending vehicle bearing registration No. OR 05 AS 7514 (Honda Activa) had a comprehensive/package policy at the relevant point of time and on the date of accident i.e. 30^th October, 2012.

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Considering the rival contentions, the Court is to examine the claim of compensation advanced by the appellants. As per the evidence on record, appellant No.2 was examined as P.W.1 before the learned Tribunal and she deposed that on the date of accident, while her deceased mother was travelling in the offending vehicle, her father as a rider, as a stray dog came in front of him and due to sudden application of brake by him, she fell down and sustained grievous head injury and other injuries as well and while under treatment, died on 31^st October, 2012 and in that connection, Mangalabag UD P.S. Case No.1520 of 2012 corresponding to U.D. G.R. No. 1736 of 2012 was registered. P.W.1 was cross-examined by respondent No.2. Nothing has been elicited during cross-examination of P.W.1 vis-à-vis rashness and negligence on the part of the rider of the motor cycle. In other words, the same was not challenged during such examination of P.W.1. It was elicited from P.W.1 that the vehicle in question stands registered in the name of her elder sister, namely, respondent No.1. As per P.W.2, who claimed to be an occurrence witness, the accident was caused due to rash and negligent driving of the husband of the deceased as he applied sudden brake. Again, there has been no cross-examination of P.W.2 with regard to any such negligence by the rider of the vehicle while denying the same. But, learned Tribunal declined to consider the alleged accident as a result of any such negligence by the husband of the deceased. The death of the deceased is no doubt due to a vehicular accident. The said accident has taken place on 30^th October, 2012 and the deceased died on 31^st October, 2012. A

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MACA No.625 of 2020 Page 4 of 8

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U.D. case was registered at Mangalabag P.S. The intimation with regard to the accident has been received by the P.S. after the death of the deceased and the same is supported by evidence. The death is also shown to be on account of sudden application of brake so revealed before the local P.S. However, a copy of the inquest report on record indicates the cause of accident differently and about the involvement of another motorcycle. If any such accident took place with the involvement of a motorcycle having dashed the vehicle, in which the deceased was travelling, a report should have been lodged at the local P.S. It is rather unusual for not lodging any report with the local police even after an accident having taken place involving another motorcycle, as revealed from the inquest report. The death of the deceased is on account of the ante mortem injuries sustained during the accident. In the considered view of the Court, merely by referring to the inquest report without more, it would not be proper and justified to disbelieve the plea of the appellants, who all along maintained that the accident was on account of the negligence of the rider of the motor cycle and for sudden application of brake, may be for the reason that a dog appeared and came in front of him. No doubt, respondent No.2 adduced evidence by placing the investigation report i.e. Ext.C and as per the findings of such enquiry, another motorcycle dashed the Scooty from back side and fled away from the accident spot. As per the said report, the rider of the unknown motorcycle was negligent and hence, the accident took place and in that connection, no report was lodged or any case has been registered at Jagatsinghpur P.S. But, the U.D. case was registered since the deceased fell from the Scooty due to sudden brake being applied by her husband. Any such involvement of a motorcycle is not really established by cogent evidence though claimed to have been revealed after an investigation. In fact, respondent No.2 heavily relied on the inquest report to arrive at a finding that an unknown motorcycle MACA No.625 of 2020 Page 5 of 8

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was involved in the accident to suggest that the driver of the said vehicle was instead responsible as he was rash and negligent. At the cost of repetition, the Court holds that the involvement of another vehicle cannot be concluded merely on acceptance of the inquest report. No evidence is on record from the side of respondent No.2 to satisfy that the cause of the accident as mentioned in the inquest report was on account of any such disclosure made by the claimants. It is not revealed from the record as to who stated so at the time of inquest held in respect of the deceased claiming involvement of another motorcycle in the accident. In absence of any such clear and satisfactory evidence, the Court is not inclined to arrive at such a conclusion accepting the inquest report and also Ext.C regarding involvement of any other motorcycle in the accident.

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So far as the liability of respondent No.2 is concerned, Mr. Dutta claims that the deceased was travelling in the Scooty owned by respondent No.1, who is none other than her daughter like the claimants and the rider of the said vehicle to be their father and in view of the decision in Ramkhiladi (supra), the claimants are not entitled to compensation and as such, respondent No.2 is not liable to cover the risk. In the aforesaid case, the application for compensation under Section 163-A of the M.V. Act was filed after the death of the deceased, who was driving the vehicle having borrowed it from the owner and therein, the Supreme Court held and concluded that though in such a proceeding, there is no need for the claimants to plead or establish negligence or that the death was due to a wrongful act, negligence or for the fault of the owner of the vehicle but since the deceased not being a 3^rd party, a claim against the owner/insurer cannot be maintained for the vehicle having been borrowed by him and hence, he steps into the shoes of the owner and the parties hence to be governed by the contract of insurance; the liability of the Insurance Company

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MACA No.625 of 2020 Page 6 of 8

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would be qua a 3^rd party only and the deceased cannot be treated as 3^rd party with respect to the insured vehicle. In that case, the deceased was not an employee of the owner of the vehicle but was a permissible user or borrower of the motorcycle and hence, therefore, in a proceeding under Section 163-A of the M.V. Act, he was not considered as a 3^rd party having stepped into the shoes of the owner and under such circumstances, allowed compensation to the extent as per the contract of insurance payable along with interest. In the instant case, the deceased was a pillion rider and as concluded earlier, such an accident had taken place due to negligence of her husband (not being challenged), who was driving the Scooty by then. Admittedly, respondent No.1, namely, one of the daughters of the deceased is the owner of the Scooty. The question is, whether, as a pillion rider, if the deceased met with the accident and died, respondent No.2 is liable to cover risk and indemnify respondent No.1? Admittedly, the claimants, owner and rider of the Scooty are related to each other. The vehicle had a comprehensive/package policy, the fact which is not under question as no objection was ever raised in that regard by respondent No.2. In Ramkhiladi (supra), the rider of the motorcycle died and he had borrowed the vehicle from the owner, hence, he could not have been a 3^rd party since stepped into the shoes of the owner. In the case at hand, the pillion rider died and as to the vehicle, it is owned by respondent No.1. In the considered view of the Court, the said decision is not applicable to the present case where the Scooty had a comprehensive policy as on 30^th October. So therefore, the Court is of the conclusion that the policy covers the risk to indemnify the loss. It is not a case of Act policy to hold that the pillion rider is not a 3^rd party. The deceased is to be considered as an occupant and her death is a risk to be covered by the comprehensive policy. In fact, the Apex Court in Balakrishnan (supra) remanded the matter back to the Tribunal to scrutinize the MACA No.625 of 2020 Page 7 of 8

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policy, whether to be an Act policy or a comprehensive one for consideration of compensation in respect of the vehicle registered in the name of a Company but owned by the injured, the Managing Director of the said Company and such was on the premise that if there is a comprehensive/package policy, it would cover the risk and allow payment of compensation as an occupant of the vehicle. Considering the facts of the case at hand and taking note of the decisions referred to above, the Court is of the final conclusion that since the Scooty said to have had a comprehensive/package policy and the deceased was an occupant as a pillion rider and died on account of the accident which occurred due to negligence of her husband, respondent No.2 is liable to cover the risk and hence, to pay the compensation to the claimants and having held so, for its determination, the matter has to be remitted to the learned Tribunal.

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Hence, it is ordered.

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13 . In the result, the appeal stands allowed. As a necessary corollary, the impugned judgment dated 19th February, 2020 passed in M.A.C. Case No.66 of 2014 by the learned 1st Additional District Judge-cum-1st M.A.C.T, Cuttack is set aside thereby restoring the application filed under Section 166 of the M.V. Act to file for a decision on the quantum of compensation payable to the appellants by respondent No.2 covering the risk indemnifying respondent No.1 by providing an opportunity of hearing to all concerned.

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14 . In the circumstances, however, there is no order as to costs.

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Signature Not Verified

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Digitally Signed Signed by: BALARAM BEHERA Balaram Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-May-2024 10:57:56

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MACA No.625 of 2020 Page 8 of 8

Sadyasmita Mohapatra v. Suryasnta Mohapatra

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Sadyasmita Mohapatra v. Suryasnta Mohapatra

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