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2010 DIGILAW 629 (ORI)

ORIENTAL INSURANCE CO. LTD. v. KUMARI MOHANTY

2010-09-03

SANJU PANDA

body2010
JUDGMENT : S. Panda, J. - This appeal is directed against the award dated 10th February, 1999 passed by the learned 2nd Motor Accident Claims Tribunal (SD), Berhampur in MAC No. 207/97(471/96). 2. The appellant-Insurance Company challenges the impugned award on the ground that the death was not caused due to motor vehicle accident and instead, it was a case of falling down from the roof as a result of which the deceased succumbed to injuries and fraud had been played by suppressing the truth. To consider the said allegations made by the appellant, the facts as taken into consideration by the Tribunal on the evidence adduced by the claimants are to be considered which are as follows: 3. Respondent nos. 1 to 4 is the claimants before the Tribunal. Respondent no. 5 is the owner of the offending Scooter bearing registration number OR-07-B-0968. In the claim application, the claimants specifically stated that on 24.6.1996 at about 6 P.M. while the deceased was going to Kamapalli Market on the left side of the road, the accident took place in front of Bata show-room. The offending vehicle being driven in a rash and negligent manner caused the accident from the back side of the deceased for which he sustained severe injuries. He was taken to M.K.C.G. Medical College & Hospital, Berhampur and then he was referred to S.C.B. Medical College & Hospital, Cuttack. The injured succumbed to the injuries on 25.6.1996. The deceased was working as a Mason and earning Rs. 60/- per day. He was also getting Rs. 10/- daily as Watchman. Since the claimants were depending on the deceased, they claimed compensation of Rs. 4 lakhs. 4. The owner of the offending vehicle contested the claim by filing written statement and stated that he was not the owner of the offending vehicle. However, he has stated that the driver of the offending vehicle had a valid driving license and the offending vehicle had a valid insurance policy covering the date of accident. But he did not participate in the hearing and was set ex parte. The appellant contested the case by filing written statement. The appellant denied the allegations made by the claimants and stated that since the driver of the offending vehicle had no valid driving license, they are not liable to pay any compensation. 5. But he did not participate in the hearing and was set ex parte. The appellant contested the case by filing written statement. The appellant denied the allegations made by the claimants and stated that since the driver of the offending vehicle had no valid driving license, they are not liable to pay any compensation. 5. On the pleadings of the parties, the Tribunal framed as many as four issues. Claimants examined four witnesses in support of their case and filed documentary evidence which were marked Exts. 1 to 7. Those are certified copies of FIR, seizure list, Zimanama, inquest report, post-mortem report and final form. The appellant did not examine any witness but filed two documents which were marked Exts. A and B, i.e., copy of schedule of insurance policy of Bajaj Classic Scooter bearing registration number OR-07-B-0968 and certified copy of D.L. No. 459/94 (Plb.) relating to B. Kesabananda Patra respectively. 6. On an analysis of the evidence adduced by the parties, the Tribunal came to the following findings: (i) The deceased was hit from the backside on 24.6.1996 at about 6 P.M. (ii) As the accident was due to contributory negligence of both the deceased and the rider of the offending vehicle, the negligence was fixed as 50 : 50. (iii) Since the deceased was about 40 to 50 years at the time of his death, taking into consideration the Schedule of the Motor Vehicles Act, 13 multiplier was applied by him Tribunal. (iv) The income of the deceased was assessed at Rs. 40/ - per day i.e. Rs. 1200/- per month. After deducting 1/3rd towards personal expenses, his contribution towards family was calculated at Rs. 800/- per month. Accordingly, annual contribution was fixed at Rs. 9600/-. Applying 13 multiplier, it came to Rs. 1,24,800/-. Solatium was assessed at Rs. 30,000/ - due to loss of company of the husband and loss of father guardian. In total, Rs. 1,58,000/- was calculated as compensation by the Tribunal. Considering the contributory negligence of 50%, it was held that the claimants are entitled to Rs. 79,000/ - as compensation; (v) The driver of the offending vehicle had a valid driving license i.e. Ext. B and vide Ext. A, the copy of the insurance policy, the offending vehicle was covered under valid insurance at the time of accident. 7. Accordingly, the Tribunal directed the appellant to pay a sum of Rs. 79,000/ - as compensation; (v) The driver of the offending vehicle had a valid driving license i.e. Ext. B and vide Ext. A, the copy of the insurance policy, the offending vehicle was covered under valid insurance at the time of accident. 7. Accordingly, the Tribunal directed the appellant to pay a sum of Rs. 79,000/- with 9% interest per annum from 7.11.1996 i.e. when the appellant was added as a party till realization of the amount. It is also directed that if the compensation was not paid within a period of 30 days, the said amount would carry interest ' 15% per annum till realization. The Tribunal further directed that a sum of Rs. 10,000/ - each be kept in fixed deposit in the names of minor claimants 2 to 4 in any Nationalized Bank for a period of six years or till they attained majority whichever was later. A sum of Rs. 30,000/- be kept in fixed deposit in the name of claimant no. 1 in any Nationalized Bank for a period of six years and monthly interest would be payable to her regularly. The balance amount with interest and cost is paid to claimant no. 1, who is the mother-guardian of claimant nos. 2 to 4. 8. Learned counsel for the appellant-Insurance Company submitted that the claim of the claimants is not genuine as the deceased succumbed to the injuries sustained due to falling down from a roof and it was not the case of an accident which is evident from the inquest report marked as Ext. 5. Since the case of the claimants was based on fraud and suppression of material facts, the same is liable to be rejected at the outset. He further submitted that the owner of the offending Scooter is one B. Paramananda Patro whereas the claimant-respondents made one B. Keshabananda Patro as owner of the offending vehicle. Since the owner of the offending vehicle was not made a party, the insurer cannot indemnify a third party. He also submitted that the rate of interest is on the higher side and the appellant is not liable to pay the penal interest as awarded by the Tribunal. 9. Learned counsel for the claimants submitted that as the claimant-respondents have proved their case, taking into consideration the true facts, the Tribunal has passed the award. He also submitted that the rate of interest is on the higher side and the appellant is not liable to pay the penal interest as awarded by the Tribunal. 9. Learned counsel for the claimants submitted that as the claimant-respondents have proved their case, taking into consideration the true facts, the Tribunal has passed the award. As there is no illegality or irregularity in the award and the finding of the Tribunal is that the offending vehicle caused the accident as a result of which the deceased died and the rider of the vehicle had a valid driving license and there was a valid insurance policy in respect of the vehicle in question covering the date of the accident, the impugned award need not be interfered with. 10. From the rival submission of the parties and after going through the records, it appears that the claimants filed documents, i.e. certified copies of the FIR, seizure list, zimanama, inquest report, post-mortem report and final form. Those documents were proved and marked as Exhibits 1 to 7. However, the appellant though contested the case neither examined any witness in support of their plea that the deceased died after falling from the roof nor cross-examined the claimants' witnesses on the said subject or put these documents proved by the claimants to contradict their version on the said fact as required u/s 145 of the Indian Evidence Act. 11. Law is well settled that even if a document is marked as exhibit, its contents are not automatically proved and if a party wants to contradict a witness on some factual aspect, he has to put the said document to the witnesses as provided u/s 145 of the Indian Evidence Act. 12. In present case, the appellant has not done so before the Tribunal when the claimants examined their witnesses. The Tribunal also discussed about the same in its award that no such suggestion was put to P.Ws. nor did the appellant adduce any rebuttal evidence or suggest to the witness regarding those facts. Therefore, the Tribunal relied on the oral evidence of P.Ws. 3 and 4 who clearly proved that the accident took place on the left side of the road while deceased was crossing the road. Hence, the accident was caused due to contributory negligence of both the deceased and the rider of the offending vehicle. Therefore, the Tribunal relied on the oral evidence of P.Ws. 3 and 4 who clearly proved that the accident took place on the left side of the road while deceased was crossing the road. Hence, the accident was caused due to contributory negligence of both the deceased and the rider of the offending vehicle. P.W. 3 is the Manager of Bata Shop-room in front of which the accident took place. P.W.4 is a chance witness who came to take tea in the market area where accident took place. The evidence of those two witnesses in no manner has been diminished. So, the Tribunal rightly came to the conclusion that due to rash and negligent driving of the offending vehicle, the accident took place. From Ext. B it appears that the rider of the offending vehicle had a valid driving license. From Ext. A it further appears that the offending vehicle had a valid insurance policy covering the date of the accident. Therefore, this Court confirms the finding of the Tribunal on the above score. 13. From the insurance policy-Ext. A, it appears that the name and address of the insured-Mr. B. Pramabananda Patro is At-Panda Colony (2nd Lane), PO : Berhampur, Dist-Ganjam. However, the claimants did not take any step to implead the owner as a party to the claim application. He was not impleaded as a party to the claim application. 14. This Court in a decision reported in The Oriental Insurance Company Ltd. Vs. Harapriya Nayak and Others, has held that awarding interest is a discretionary power of the Tribunal. Once the discretion has been enhanced by the Tribunal to award simple interest on the amount of compensation, there is no scope for retrospective enhancement for default of payment of compensation. 15. The apex Court in a decision reported in 2004 (2) TAC 1 National Insurance Co. Ltd. V. Keshav Bahadur and others has observed that the purpose of award of interest being to put pressure on the relevant person not to delay payment of compensation and to compensate the victim or his dependants at least to some extent for such delay as may occur by way of interest. However, fixation of higher rate of interest in case of default amounts to imposition of penalty which is not statutorily envisaged and prescribed. Therefore, there is no scope for retrospective enhancement for delay in payment of compensation. However, fixation of higher rate of interest in case of default amounts to imposition of penalty which is not statutorily envisaged and prescribed. Therefore, there is no scope for retrospective enhancement for delay in payment of compensation. Considering the aforesaid decisions, this Court sets aside the penal interest imposed by the Tribunal. 16. So far as rate of interest is concerned, this Court modifies the rate of interest from 9% per annum as awarded by the Tribunal to 7.5% per annum and directs that the interest be paid to the claimants from the date of the application till realization of the amount. 17. In view of the finding that the owner of the offending vehicle was not made a party, this Court for that limited purpose remands the matter to the Tribunal to give a chance to the claimants to implead the owner of the offending vehicle as a party. This Court also directs the claimants to implead the owner of the offending vehicle as a party to the claim application. Since the claim application is of the year 1997, this Court directs the Tribunal to complete the above exercise and pass necessary orders within a period of four months from the date of receipt of the LCR. 18. The statutory deposit made in the Registry of this Court along with the accrued interest thereon shall be refunded to the appellant-Insurance Company on production of a receipt of deposit of the compensation amount and interest with the Tribunal. With the above modification of the impugned award, the appeal is disposed of.