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2007 DIGILAW 123 (ORI)

Oriental Insurance Company Ltd. v. Ukia Guru

2007-02-22

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : The judgment and award of compensation passed in favour of respondent No.1 Mst. Ukia Guru by the learned Addl.District Judge-cum-MACT, Balangir in MACT Case No.61/17 of 1998-2000 is assailed in this appeal by the Oriental Insurance Company. The said judgment is assailed mainly on the grounds that the driver of the offending mini bus named ‘Sanket’ was not possessing a valid driving licence; that the said vehicle had been over-loaded with passengers; no injury report with regard to respondent No.1 who was the petitioner before the Tribunal was produced and that the award of compensation is excessive. 2. It appears from records that in support of her aver¬ments the petitioner-respondent No.1 got two witnesses examined including herself and exhibited as many as six documents which included the FIR lodged with police with regard to the accident; charge-sheet filed by police on the basis of the said FIR; bed-head ticket of Burla Hospital; medical certificate granted by the Orthopedic and Rehabilitation Foundation and Research Centre, Bhubaneswar; Xerox copies of R.C. Book of the offending mini bus and its insurance policy. The appellant-Insurance Company did not get any witness examined on its behalf, but exhibited the copy of the insurance policy of the said vehicle; a letter of the con¬cerned RTO and certified copy of a driving licence. After perus¬ing the materials available on record and particularly the cer¬tificate, Ext.6, granted by the Orthopedic and Rehabilitation Foundation and Research Centre, with regard to the gravity of the injuries sustained by petitioner-respondent No.1, the learned Tribunal has awarded a compensation of Rs.35,000.00 in favour of petitioner-respondent No.1 with 6% interest thereon from the date of the claim application, i.e. 9.4.1998. 3. From the bed-head ticket issued by the Burla Hospital, vide Annexure-4, it is revealed that respondent No.1 who is a lady had suffered ‘intracondylar fracture’ of right humerus. The certificate Ext.5 issued by the Orthopedics and Rehabilita¬tion Foundation and Research Centre shows that she was suffering from ‘intracondylar comminuted fracture’ of right humerus. As it appears from the judgment of the learned Tribunal, respondent No.1 had also filed a number of prescriptions, pathological reports, medicine cash-memos, etc. Though the witnesses for the petitioner-respondent No.1 were cross-examined on behalf of the appellant-Insurance Company nothing could be elicited to discred¬it their statements. Considering all these, the learned Tribunal has passed the impugned judgment awarding compensation. As it appears from the judgment of the learned Tribunal, respondent No.1 had also filed a number of prescriptions, pathological reports, medicine cash-memos, etc. Though the witnesses for the petitioner-respondent No.1 were cross-examined on behalf of the appellant-Insurance Company nothing could be elicited to discred¬it their statements. Considering all these, the learned Tribunal has passed the impugned judgment awarding compensation. The appellant-Insurance Company having not filed any petition under Section 170 of the Motor Vehicles Act is estopped from assailing the quantum of compensation. Thus this Court has no hesitation to confirm the judgment of the Tribunal awarding compensation in favour of respondent No.1 and directing the appellant to pay the same, and orders accordingly. This Court further directs the appellant-Insurance Company to deposit the entire amount as per the award within six weeks hence before the Tribunal which shall be forthwith disbursed to respondent No.1 as more than ten years have elapsed in the meanwhile from the date of the accident. On an application being made before this Court enclosing receipt showing deposit of the entire amount by the appellant-Insurance Company before the Tribunal, the statutory deposit made before this Court with interest accrued thereon be returned to the appellant-Insurance Company by a crossed-cheque/draft. This Court, however, grants liberty to the appellant-Insurance Company to realize the amount paid by it as per the judgment of the learned Tribunal from the owner of the offending mini-bus on the ground that the driver of the said vehicle did not posses a valid driving licence. In course of hearing it is submitted that respondent No.2-owner has expired in the meanwhile. The said respondent was not contesting the case before the Tribunal. Even otherwise in conso¬nance with Section 155 of the M.V. Act, this Court observes that death of the owner of the offending vehicle does not affect hearing of this appeal. The appeal is accordingly disposed of. Appeal disposed of.