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2007 DIGILAW 237 (ORI)

Oriental Insurance Co. Ltd. v. Manas Barik

2007-04-09

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : The Oriental Insurance Company Ltd. has filed this appeal assailing the judgment dtd. 22.2.2003 passed by Shri S. K. Pattnaik, Fourth Motor Accident Claims Tribunal, Cuttack as well as the order dated 17.1.2004 passed by 5th M.A.C.T.-cum-Addl. District & Sessions Judge, Khurda in M.A.C.T. Misc.Case No.12/70 of 2000. 2. Manas Barik, respondent No.1, who was a young boy of 19 years lost his both legs below knee in a motor vehicle accident which occurred on 9.1.2000. It is alleged that he was working as a helper in a Tipper bearing Regn. No.OR-16-8066 when the said vehicle capsized to its left both is legs were trampled and were virtually smashed. He was immediately shifted to the District Headquarters Hospital, Khurda and thereafter to S.C.B. Medical College-Hospital, Cuttack. Both his legs were amputated one after the other below the knee and skin grafting was also done. 3. After receiving notice the owner of the vehicle did not contest. The appellant-Insurance Company filed its written state¬ment vaguely denying the averments, but then in paragraph-17 of its written statement while admitting the accident, took the plea that the driver of the Tipper was not negligent and the accident was caused when another vehicle being driven in rash and negli¬gent manner rushed in, the driver of the tipper lost balance and the accident was caused. It is admitted in para-17 of the written statement that the driver of the Tipper had no contribution to the accident at all and the accident took place solely due to rash and negligent driving of the other vehicle. 4. In consonance with the inter se pleadings, the Tribunal framed four issues. The claimant got himself examined as P.W.1 and exhibited eight documents. The Insurance Company neither adduced any oral evidence nor exhibited any documents. The Tribunal after discussing the evidence both oral and documentary in extenso came to the conclusion that the claimant, respondent No.1, sustained injuries on account of motor vehicle accident involving the vehicle bearing Regn. No.OR-16-8066(Tip¬per). Considering the gravity of injuries, the amount spent on treatment and the fact that a young boy had lost both of his legs and became 90% disabled, the Tribunal awarded a compensation of Rs.3,26,104/- along with interest @ 9% per annum from the date of claim application till realization. 5. The judgment was delivered on 22.2.2003. No.OR-16-8066(Tip¬per). Considering the gravity of injuries, the amount spent on treatment and the fact that a young boy had lost both of his legs and became 90% disabled, the Tribunal awarded a compensation of Rs.3,26,104/- along with interest @ 9% per annum from the date of claim application till realization. 5. The judgment was delivered on 22.2.2003. No steps were taken by the Insurance Company to prefer an appeal and on 5.9.2003, i.e. more than six months after a petition was filed before the Tribunal to recall the order dtd. 22.2.2003 mainly on the grounds that some fraud had been practised on Court, the claimant had suppressed vital facts, and he has misrepresented the correct facts. The Tribunal relying upon the ratio of the decision Supreme Court in the case of United India Insurance Company Ltd. v. Rajendra Singh & others reported in 2001(1) AJR 264 (SC) entertained the petition and gave an opportunity of hearing to both the parties once again. 6. The sole ground on which the applicant-Insurance Compa¬ny prayed to recall the order was that the claimant was a minor on the date of accident and as such he could not be considered to be an employee of the owner of the Tipper. It was also alleged that in the injury report, Ext.4, OPD No.9486 had been mentioned by Police, but then the said number was not correct and had been subsequently manipulated. In support of such contention reliance was placed on the report of an investigator of the Insurance Company and a statement said to have been made by the Doctor who was in-charge of the OPD on the date of occurrence who denied to have examined any such patient. 7. The Tribunal after discussing all the materials came to the conclusion that the injured was forwarded to the Hospital on Police requisition. The hospital documents produced and marked as exhibits clearly revealed that the injured was treated at Khurda Hospital and thereafter referred to S.C.B. Medical College-Hospital, Cuttack as the injuries were grievous in nature. There was absolutely no dispute that the injured was treated at S.C.B. Medical College-Hospital where both of his legs were amputated below the knee. The hospital documents produced and marked as exhibits clearly revealed that the injured was treated at Khurda Hospital and thereafter referred to S.C.B. Medical College-Hospital, Cuttack as the injuries were grievous in nature. There was absolutely no dispute that the injured was treated at S.C.B. Medical College-Hospital where both of his legs were amputated below the knee. It was further observed that the Tribunal had based its findings on any of the documents alleged to have been fabricated and the conclusions arrived at by the Tribunal was based on cumulative assessment of the evidence adduced before it in course of hearing and thus the belated plea taken by the appellant-Insurance Company could not be accepted. Consequently the petition to recall the recall order was dismissed. Being aggrieved, as stated earlier, the Insurance Company has filed this M.A.C.A. 8. Mr. Dutta, learned counsel for the appellant-Insurance Company, once again reiterated the stand taken by the Insurance Company before the Tribunal. According to him the claimant is the son of the driver of the Tripper, he was a minor on the date of accident and as such cannot be accepted as an employee of the owner. 9. The submission of Mr. Dutta is strongly repudiated by the owner of the vehicle who has appeared in this appeal. Learned counsel appearing for the owner admitted before this Court that the claimant was engaged by the owner as a coolie and he was being paid @ Rs.1800/- per month towards wages. So far as the age of the claimant is concerned, the School Leaving Certificate and other materials available reveal that he was fourteen years and nine months. In consonance with Section 2 of the Child Labour (Prohibition) and Regulation Act, 1986 a child means a person who has not completed 14 years of the age. Admittedly in the case at hand the claimant had crossed 14 years and could not be consid¬ered to be a child on the date of accident. Thus the prohibition of Section 3 of the aforesaid Act did not apply to the present case. 10. So far as the allegations with regard to manipulation of the OPD number is concerned, this Court perused the original document available in the case records which clearly reveal that on 9.1.2001 respondent No.1 on police requisition was sent to Khurda Hospital. Thus the prohibition of Section 3 of the aforesaid Act did not apply to the present case. 10. So far as the allegations with regard to manipulation of the OPD number is concerned, this Court perused the original document available in the case records which clearly reveal that on 9.1.2001 respondent No.1 on police requisition was sent to Khurda Hospital. The injury report clearly reveals that he sus¬tained grievous injuries and fracture of both of legs below the knee. The remarks column of Ext.4, the requisition and injury report also reveal that the injuries might have been caused due to vehicular accident. Ext.4 is the certified copy of the injury report. It is a public document. It is also available in the case diary and it has been admitted into evidence without objection. Thus, the said document could not be disbelieved unless of course cogent evidence was adduced. In the case at hand, as has been stated earlier, the Insurance Company had not examined as a witness any witness nor had it exhibited any docu¬ment. After lapse of six months a petition was filed to recall the order only on the strength of a report of the investigator enclosing certain documents. The investigator was not examined as a witness by the appellant in course of the trial. The statement of the Doctor could not also be accepted as the Doctor was not examined nor the person in whose presence the statement was recorded/written. Both the materials are not substantive evi¬dence. Nothing prevented by the appellant-Insurance Company to adduce evidence before the Tribunal. The cross-examination of witnesses was also perfunctory yielding no result to support the appellant’s case. In the cross examination nothing could be elicited from P.W.1 to disbelieve his statement. On the other hand, the F.I.R. and the G.R. Case records bearing No.22/2000 of the Court of S.D.J.M., Khurda clearly established the accident. The document marked as Ext.1, the seizure list Ext.2 and certi¬fied copy of the injury report Ext.4, established the injury sus¬tained. Apart from the accident the discharge certificate Ext.5 granted by S.C.B. Medical College-Hospital, Cuttack clearly revealed that the claimant was an indoor patient. The disability certificate Ext.8 revealed that he became 90% disabled, the other documents like the final forum Exts.6 and 7 further fortified the case of the claimant. Apart from the accident the discharge certificate Ext.5 granted by S.C.B. Medical College-Hospital, Cuttack clearly revealed that the claimant was an indoor patient. The disability certificate Ext.8 revealed that he became 90% disabled, the other documents like the final forum Exts.6 and 7 further fortified the case of the claimant. Apart from the aforesaid cogent evidence the appellant-Insurance company in its written statement not only admitted, but also took the plea that the driver of the offending vehicle was not negligent. Thus it cannot back out at a later stage. 11. After going through the materials, this Court finds that the Tribunal has not committed any error apparent on the fact of the record. The reasonings arrived at are just, proper and in consonance with the evidence available on record. There is cogent evidence to reveal that the claimant was more than 14 years of age on the date of accident. The owner of the vehicle has admitted before this Court through his learned counsel that he had engaged the injured as an employee and was playing him a sum of Rs.1800/- towards wages per month. However, considering the age of the injured and as there is no cogent documentary evidence with regard to the payment of wages, this Court feels that an award of Rs.3,26,104/- with interest @ 9% is in the higher side. Accordingly in a spirit of Lok Adalat while confirm¬ing the conclusions of the Tribunal, this Court directs that the claimant shall be paid a compensation of Rs.2,75,000/- (Rupees two lakhs seventy five thousand) with interest @ 7 1/2% per annum from the date of filing of the claim petition till realisation instead of Rs.3,26,104/- with interest @ 9%. 12. It appears that the claimant has already withdrawn a sum of Rs.25,000/- from this Court. The balance amount along with interest accrued thereon as per this judgment be deposited by the appellant-Insurance Company before the Tribunal within six weeks hence. After the said amount is deposited, the same shall be disbursed in favour of the claimant proportionately apportioning the same as per the stipulations made in the judgment of the Tribunal. With the aforesaid modification, the M.A.C.A. is disposed of. MACA disposed of.