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2000 DIGILAW 40 (ORI)

SABITRI MALLICK v. HALADHAR BHUYAN

2000-01-25

P.K.MISRA

body2000
P. K. MISRA, J. ( 1 ) THE claimants have filed this appeal under section 173 of the motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' ). ( 2 ) APPELLANT No. 1 is the widow and appellant Nos. 2 to 4 are the sons of late rama Chandra Mallick, who died in an accident dated 12. 6. 1985 involving the truck bearing No. ORJ 7213 belonging to present respondent No. 1. The Tribunal found that the accident occurred due to negligence of the driver of the truck. It was held that sum of Rs. 2,00,000 was payable as compensation but as the claimants had only claimed Rs. 1,00,000 they were entitled to the amount claimed by them. It was further found that the owner would be liable to pay the compensation as the deceased was travelling unauthorisedly as a passenger in the truck and such liability was not covered. ( 3 ) THE present appeal has been filed by the claimants claiming higher compensation. It is also claimed that the liability should be borne by the insurance company. ( 4 ) THE Tribunal has found that the deceased was travelling in the truck solely on the basis of the certified copy of the F. I. R. The person who lodged F. I. R. has not been examined as witness. No plea had been taken by the insurance company specifically pleading that it was not liable on the ground that the deceased was travelling as a passenger in the truck. Apart from the certified copy of the F. I. R. , there is no other material to hold that the deceased was travelling in the truck itself. Even the f. I. R. is not categorical to the effect that the deceased was travelling in the truck. The driver of the truck having not been examined, it would not be proper to assume that the deceased was a passenger in the truck merely on the basis of the vague recital in the F. I. R. to the effect that three persons had died in the accident, particularly when the maker of the F. I. R. is also not examined. Moreover, PW 3, one of the witnesses, has stated that he was carrying the deceased on his cycle. Moreover, PW 3, one of the witnesses, has stated that he was carrying the deceased on his cycle. Such evidence of PW 3 has received corroboration from the seizure list wherein it is shown that a cycle had been seized from the spot. For the aforesaid reason, I am not inclined to accept the conclusion of the Tribunal that the deceased was a passenger. Once it is found that the deceased was not a passenger in the truck, he being a third party, the insurance company is liable to disburse the amount. ( 5 ) LEARNED counsel for the appellants contended that the Tribunal has found that rs. 2,00,000 was payable but it awarded rs. 1,00,000 merely on the ground that in the claim application only Rs. 1,00,000 had been claimed. The counsel has submitted that though at least Rs. 1,80,000 can be said to be the appropriate compensation, as the liability of the insurance company is limited to Rs. 1,50,000 as per the existing provision contained in the Motor Vehicles act, 1939 and as it would be difficult to realise the balance amount from the owner, the compensation amount should be fixed at Rs. 1,50,000. He has submitted that even where lesser amount is claimed in the claim application or in the appeal, the court is empowered to grant higher amount as just and proper compensation. He has placed reliance upon a decision in Mulla md. Abdul Wahid v. Abdul Rahim, 1994 acj 348 (Orissa), in support of such contention. ( 6 ) THE aforesaid submissions of the learned counsel for the appellants are acceptable. The Tribunal or the appellate court is required to assess the just compensation and merely because the amount claimed is less, the court is not powerless to grant higher compensation. Of course, the claimants should be required to pay the differential court-fee on the higher amount. Having regard to the facts and circumstances of the case and keeping, in view the principle decided in 1994 ACJ 348 (Orissa), it is directed that sum of rs. 1,50,000 (Rupees one lakh fifty thousand) should be paid as compensation to the claimants by the insurance company. Interest on Rs. 1,00,000 should be paid from the date of claim application and interest at the rate of 6 per cent on the enhanced amount of Rs. 1,50,000 (Rupees one lakh fifty thousand) should be paid as compensation to the claimants by the insurance company. Interest on Rs. 1,00,000 should be paid from the date of claim application and interest at the rate of 6 per cent on the enhanced amount of Rs. 50,000 shall be paid from the date of filing of the appeal, i. e. , with effect from 3. 9. 1993. It is further directed that if the aforesaid amount is not deposited by the insurance company by 15. 3. 2000 before the Claims Tribunal, the entire awarded amount shall be paid with interest at the rate of 12 per cent thereafter, i. e. to say, with effect from 16. 3. 2000. Out of the compensation amount a sum of rs. 60,000 shall be kept in fixed deposit for a period of five years in the name of the widow claimant-respondent No. 1 and sum of Rs. 20,000 each shall be kept in fixed deposit in the name of each of the sons of the deceased (claimant-respondent nos. 2, 3 and 4 ). The balance amount of rs. 30,000 along with the entire accrued interest shall be paid to each of the claimant in equal proportion by account payee cheques. ( 7 ) THE appeal is accordingly allowed. There will be no order as to costs. A copy of the judgment be handed over to the learned counsel for the insurance company for information and compliance. Appeal allowed.