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2008 DIGILAW 356 (ORI)

United India Insurance Co. Ltd. v. Pala Dei

2008-04-25

B.N.MAHAPATRA

body2008
JUDGMENT B. N. MAHAPATRA, J. — This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter called as ‘the Act’) filed by the Insurance Company against an award dated 13.12.2004 passed by the 2nd Motor Accident Claims Tribunal, (hereinafter referred to as the Tribunal’) Cuttack, in Misc. Case No.902 of 2002. 2. The case of the claimant-petitioners before the learned Tribunal was that on 2.11.2002, one Truck bearing Registration No.ORY-4272 was capsized on Tata-Duburi road. The offending Crane bearing Registration No.OSU-8178 came for lifting the Truck which was capsized on the road. The Crane while turning over was cap¬sized on the deceased Dibakar Purti, who was the driver of vehi¬cle, bearing Registration No.ORY-925 and was witnessing the lifting process of the capsized Truck. As a result of which the deceased died at the spot. After the accident the deceased was taken to Danagadi Hospital, where post mortem over the dead body of the deceased was conducted. The accident took place due to the rash and negligent driving of the driver of the offending crane. The case was reported to Tomaka Police Station. The deceased was working as a driver and drawing Rs.4,000/- per month. The further case of the claimants is that the offending vehicle (crane) was validly insured with the insurance company and the driver had valid driving licence. Hence, both the Insurance Company and the owner of the vehicle were jointly and severally liable to pay compensation to the claimant-respondents. 3. The owner of the vehicle (crane) filed written state¬ment denying the allegations and also the negligence of the driver of the offending crane. According to him, the death of the deceased was caused due to his fault as he suddenly came under the crane, which was capsized. The driver of the vehicle had valid driving licence No.3260/94-95, which was valid till 30.5.2005 and he was authorized to drive Heavy Motor Vehicle with effect from 31.5.1996. The offending vehicle had also been duly insured with the Insurance Company and the insurance policy was valid from 18.1.2002 to 17.1.2003. The age, income and occupation of the deceased were also denied by the owner of the crane. 4. The Insurance Company filed its written statement denying all the averments made in the claim application generally and specifically. The offending vehicle had also been duly insured with the Insurance Company and the insurance policy was valid from 18.1.2002 to 17.1.2003. The age, income and occupation of the deceased were also denied by the owner of the crane. 4. The Insurance Company filed its written statement denying all the averments made in the claim application generally and specifically. The further case of the Insurance Company was that the policy number disclosed in the claim petition was not complete. It also denied the age, income and occupation. 5. On the above pleadings the Tribunal framed four issues. 6. The claimants examined two witnesses and filed seven documents which were marked as Ext.1 to 7. No witness was exam¬ined on behalf of the Insurance Company except filing the Insur¬ance Policy which was marked as Ext.A. 7. Considering the oral and documentary evidence adduced by the claimants and in absence of any evidence to the contrary, the learned Tribunal held that the accident resulting death of the deceased took place due to the rash and negligent driving of the driver of the offending crane. The learned Tribunal assessing the income of the deceased at Rs.3,000/- per month and deducing 1/3rd out of the said income towards his personal expenditure fixed Rs.2,000/- per month towards his contribution to the fami¬ly. Since the deceased was a bachelor, the age of the mother who was 44 years at the time of accident was taken into consideration and 15 multiplier was applied for computation of the compensation amount. Accordingly the loss of dependency was computed at Rs.3,60,000/- Besides the above, the learned Tribunal also awarded Rs.1,000/- towards funeral expenses. In total, Rs.3,61,000/- was awarded towards compensation which included the loss of estate and loss of love and affection of the claimants due to the untimely death of the deceased. The learned Tribunal also further held that the offending vehicle was duly covered with valid insurance policy and the driver of the offending vehicle had valid and effective driving license at the time of accident. With these findings, the learned Tribunal held that the Insurance Company was liable to indemnify the compensation amount payable to the claimants and awarded 9% interest per annum from 19.2.2004, the date of appearance of the insurance Company, in the case till realization. With these findings, the learned Tribunal held that the Insurance Company was liable to indemnify the compensation amount payable to the claimants and awarded 9% interest per annum from 19.2.2004, the date of appearance of the insurance Company, in the case till realization. Learned Tribunal further ordered that out of the total compensation amount, a sum of Rs.1,50,000/- in the name of claimant-petitioner No.1, Rs.30,000/- each in the name of claimant-petitioner Nos.2 and 3 and Rs.50,000/- each in the name of claimant-petitioner Nos.4, 5 and 6 be kept in shape of unencumberable fixed deposit in a Nationalized Bank for a period of six years for their future benefit and the balance amount be paid in shape of cash to the claimant-petitioner No.1. 8. Learned counsel appearing on behalf of the appellant-Insurance Company submitted that the income of the deceased as assessed by the learned Tribunal is on higher side and it also applied higher multiplier of 15 which should have been 10. It also challenged that the rate of interest as awarded by the Tribunal was high which according to him should be 4%. The learned counsel further argued that the driver of the offending vehicle did not have valid and effective driving license at the time of accident. 9. Learned counsel appearing on behalf of the claimant-respondents while supporting the order of the learned Tribunal submitted that in absence of leave of the learned Tribunal under Section 170 of the Act granted to the appellant to contest all the grounds and the owner of the vehicle having contested the case, the appellant was not legally permitted to challenge the quantum before this Court. Concluding his argument he submitted that since a considerable time has already been passed, this appeal may be disposed of in the manner and spirit in which the motor accident claim cases are disposed of in the Lok Adalat. To such submission, the learned counsel appearing on behalf of the Insurance Company has no objection. 10. Considering the facts of the case in totality and the submissions made by the learned counsel for the parties, this Court feels that a sum of Rs.3,15,000/- would be just and proper compensation in this case. To such submission, the learned counsel appearing on behalf of the Insurance Company has no objection. 10. Considering the facts of the case in totality and the submissions made by the learned counsel for the parties, this Court feels that a sum of Rs.3,15,000/- would be just and proper compensation in this case. In view of the above, this Court directs the Insurance Company to a pay a sum of Rs.3,15,000/- (Rupees three lakhs and fifteen thousand) to the claimant-respondents towards compensation along with interest at the rate of 6% per annum from the date of filing of claim application till the date of deposit before the learned Tribunal. The entire amount be deposited before the learned Tribunal within a period of eight weeks from today. After the said amount is deposited, the same shall be disbursed by the learned Tribunal in favour of the claimant-respondents in the manner as directed by the learned Tribunal in its order. 11. During the pendency of the appeal, a sum of Rs.25,000/- was deposited before this Court towards statutory deposit which has been kept in a fixed deposit. Hence, the Insurance Company is entitled to get back the said amount with accrued interest on production of a receipt before the Registrar (Judicial) of the Court showing deposit of the awarded amount along with interest as directed above before the Tribunal. 12. The further submission of the learned counsel for the Insurance Company is that the appellant may be granted leave to recover the amount from the owner of the vehicle that shall be paid to the claimants. But, in view of the categorical finding of the learned Tribunal that the driver of the offending vehicle had valid and effective driving license and the appellant-Insurance Company having failed to prove that the driver of the offending vehicle had no valid driving license, this Court does not incline to grant leave to the Insurance Company to recover the amount from the owner of the vehicle. 13. With the aforesaid direction, the appeal is allowed in part. Appeal allowed in part.