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2000 DIGILAW 42 (ORI)

Sabitri Mallick v. Haladhar Bhuyan

2000-01-25

P.K.MISRA

body2000
JUDGMENT P. K. MISRA, J. — The claimants have filed this appeal under Sec. 173 of the Motor Vehicles Act, 1989 (hereinafter referred to as the ‘Act’). 2. Appellant No. 1 is the widow and appellants 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 belong¬ing to present respondent No. 1. The Tribunal found that the accident occurred due to the 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 liabil¬ity 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 FIR. The person who lodged FIR 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 FIR, there is no other material to hold that the deceased was travelling in the truck itself. Even the FIR 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 FIR to the effect that three persons had died in the accident, particularly when, the maker of the FIR is also not examined. Moreover, P.W. 3, one of the witnesses, has stated that he was carrying the deceased on his cycle. Such evidence of P.W. 3 has received corroboration from the seizure list wherein it is shown that a cycle had been seized from the spot. Moreover, P.W. 3, one of the witnesses, has stated that he was carrying the deceased on his cycle. Such evidence of P.W. 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. The learned counsel for the appellant 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 reported in 1993 (I) OLR 569 (Mulla Md. Abdul Wahid v. Abdul Rahim and another) in support of such con¬tention. 6. The aforesaid submissions of the learned counsel for the appellant 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 claimant 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 1993 (I) OLR 569, 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% 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% 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 15th March, 2000, before the Claims Tribunal, the entire awarded amount shall be paid with interest at the rate of 12% thereafter, i.e. to say, with effect from 16th March, 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-Respondents 2, 3 and 4). The balance amount of Rs. 30,000/- along with the entire accrued interest shall be paid to each of the claimants in equal propor¬tion by Account Payee Cheques. 7. The appeal is accordingly allowed. There will be no order as cost. A copy of the judgment be handed over to the learned counsel for the Insurance Company for information and compliance. Appeal allowed.