Research › Search › Judgment

Orissa High Court · body

2005 DIGILAW 438 (ORI)

Divisional Manager, Oriental Insurance Co. Ltd. v. P. Saraswati

2005-07-21

A.S.NAIDU

body2005
JUDGMENT A. S. NAIDU, J. : In both the Appeals the Judgment dated 23rd July, 2002 passed by the 2nd Motor Accidents Claims Tribunal (Southern Division), Berhampur in M.A.C. No.434 of 2000 (664/99) is assailed. M.A.C.A. No.113 of 2003 was filed by the Oriental Insurance Company Ltd. whereas M.A.C. No.184 of 2002 was filed by the claimants. As the facts and point of law involved in both the Appeals being one, the said Appeals were heard together and disposed of by this common Judgment. 2. On the basis of a claim petition filed under Section 166 of the Motor Vehicles Act the aforesaid M.A.C. No.434/2000 (664/99) was initiated. It is alleged that due to rash and negli¬gent driving of the truck bearing registration No.ORL 418 the deceased sustained grievous injuries and succumbed to the said injuries. It is further alleged that the deceased was working as a Helper in the Electric Stores Division, Berhampur and at the time of accident i.e. on 16.10.1999 he was engaged in shifting of a Transformer form the truck bearing registration No.ORG 1533 when the offending vehicle caused the accident. 3. The respondents appeared and filed their written state¬ments. The respondent No.1-the Divisional Manager, Oriental Insurance Company Ltd. though admitted the accident, denied the allegations that the same was caused due to rash and negligent driving of the offending truck. A plea was taken that the acci¬dent occurred due to negligence of the deceased. Respondent No.2 the owner of the vehicle admitted the accident and took plea that the offending vehicle was duly insured with the appellant-Insurance Company. 4. In order to substantiate their case the claimants got examined three witnesses and exhibited ten documents. On behalf of the Insurance Company no oral evidence was adduced. But then the Certificate-cum-policy and the certified copy of the driving licence of the driver of the offending vehicle were produced. The Tribunal after discussing the facts and circumstances came to the conclusion that the accident took place due to negligent driving of the offending truck. On scrutiny of the evidence and in view of the evidence of p.w.2 and other connective materials like police papers etc., this Court finds no reason to interfere with the findings arrived at by the Tribunal. On scrutiny of the evidence and in view of the evidence of p.w.2 and other connective materials like police papers etc., this Court finds no reason to interfere with the findings arrived at by the Tribunal. The Tribunal on discuss¬ing the materials came to the conclusion that the deceased was drawing a sum of Rs.2,997/- towards salary and D.A. of Rs.1109/- at the time of the death apart form other benefits. In support of the claim the service book, pay certificate etc. were filed. Taking into consideration all the factors the Tribunal awarded a sum of Rs. 3,42,000/-. The deceased was admittedly working as a Helper in, a Government Department. His pay certificates and other materials have been produced. He was about 43 years of age when the accident took place. He has left behind a widow and a minor child apart form an aged father. After considering all the materials, I find that the amount awarded is just, proper and in consonance with the provisions of law and I declined to interfere with the same. The only other point which needs to be decided in this case is with regard to the driving licence of the driver of the of¬fending vehicle. According to the learned counsel for the appel¬lant-Insurance Company, the driver of the offending vehicle was not possessing a valid driving licence. But then not possessing a valid driving licence is a breach of policy conditions and for such breach, the poor claimants should not suffer. In consonance with Section 149(4) of the Motor Vehicles Act the Insurance Company is liable to pay the amount and realize the same form the owner of the offending vehicle. The Supreme Court also in catena of decisions held that the poor claimants should not suffer for any breach of policy conditions. In view of the aforesaid facts and circumstances, I dispose of both the Appeals upholding the award of compensation of Rs.3,42,000/- but directing that the claimants shall be entitled to interest at the rate of 60% per annum instead of 9% per annum as directed by the Tribunal and direct the Insurance Company to deposit the said amount before the Tribunal within six weeks. In view of the fact that the Insurance Company had failed to adduce any oral evidence in support of their claim that the driver of the offending vehicle was not possessing any driving licence and this Court feels that ends of justice and equity would be better served if the amount of compensation is deposited before the Tribunal and after depositing, the same should be re¬leased in favour of the claimants. However, liberty is also given to the Insurance Company to file a suitable petition before the Tribunal. If such a petition is filed the Tribunal shall issue notice to the owner of the offending vehicle and decide as to whether the driver of the offending vehicle was possessing a valid driving licence or not. In the event the Tribunal arrives at a conclusion that there was breach of policy conditions it would pass necessary orders for realization of the amount paid by the Insurance Company form the owner of the offending vehicle. Appeal disposed of.