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2012 DIGILAW 357 (ORI)

Nityananda Routray v. Mahendra Kumar Rout

2012-08-17

V.GOPALA GOWDA

body2012
ORDER 1. This appeal is filed- questioning the correctness of the judgment dated 22nd August, 1995 passed by the Second M.A.C.T., Cuttack in Misc. Case No. 271 of 1987 in rejecting the claim petition for the reason that as there is no police case" the injury sustained by the claimant is in doubt and no compensation can be awarded urging various grounds. 2. The facts of the case need not be adverted to in this appeal for the reason that the learned Tribunal has elaborately narrated the necessary facts in its judgment. 3. The ground of attack on the impugned judgment is that approach of the learned Member of the Tribunal in rejecting the claim of the claimant appellant on the ground that P.Ws. 1 and 2 having examined and there being no contrary evidence to disbelieve their evidence, learned Tribunal should have believed the case of the claimant and should not have doubted the case without any reason. The other ground urged is that merely because there is no police case, compensation claimed under the Motor Vehicle Act, 1988 should not be thrown away as there is no provision either in the Act or Rules to prove or file any such police papers relating to accident. Further, as there is also no specific pleading of collusion between the appellant and the owner of the vehicle in the written-statement filed by the Insurance Company, the Claims Tribunal is not right to infer collusion in this case. Therefore, it is prayed that the entire amount claimed should have been awarded by the Tribunal. 4. As respondent no.1-the owner of the offending vehicle did not prefer to appear, the appeal as against him has been dismissed by this Court vide order dated 14.7.2006. The vehicle was insured, the owner has admitted the accident, but he has attributed the case of accident to the appellant. The said plea is not proved either by the owner or the insurer after availing the defence of the owner by obtaining permission from the learned Member of the Tribunal as provided under Clause (ii) of Sub-section (2-A) of Section 110-C of the repealed M.V. Act, 1939 or Section 170(b) of the Motor vehicles Act, 1988. 5. The said plea is not proved either by the owner or the insurer after availing the defence of the owner by obtaining permission from the learned Member of the Tribunal as provided under Clause (ii) of Sub-section (2-A) of Section 110-C of the repealed M.V. Act, 1939 or Section 170(b) of the Motor vehicles Act, 1988. 5. Learned counsel appearing for the Insurance Company sought to justify the impugned judgment/award contending that the Tribunal being the fact finding authority on proper analysis of facts and legal evidence on record has held that the claim is not maintainable and accordingly dismissed the claim petition. Therefore, the same does not require any interference by this Court, as the appellant has not made out the findings of the Tribunal on the contentious issue are either erroneous or error in law. Hence, he prayed for dismissal of the appeal. 6. With reference to the above rival legal contentions, the following points would arise for consideration by this Court. (i) Whether dismissal of the claim petition solely on the ground that there is no police case registered against the driver of the offending vehicle is erroneous or error in law? (ii) Whether the claimant is entitled for compensation (iii) What award? 7. The first point is required to be answered in favour of the appellant for the following reasons. Judgment of this Court in New India Assurance Co. Ltd. v. Ananga Kumar Otta and another, 2008 (II) OLR 615 , and the judgments of the Supreme Court in N.K.V Bros. (P) Ltd. v. M. Karumai Ammal & Ors, AIR 1980 SC 1354 , Brestu Ram v. Anant Ram and others, 1990 ACJ 333, Parmeswari v. Amir Chand & Ors, AIR 2011 SC 1504 , on the question is that as the same are no longer res integra, non-registration of the case does not disentitle the claimant for getting compensation. In view of the aforesaid judgments, the findings recorded by the learned Tribunal are erroneous in law and is liable to be set aside. Accordingly, the same is set aside and the first point is answered in favour of the appellant. 8. In view of the aforesaid judgments, the findings recorded by the learned Tribunal are erroneous in law and is liable to be set aside. Accordingly, the same is set aside and the first point is answered in favour of the appellant. 8. Since the first point is answered in favour of the claimant appellant, the second point as to whether the claimant is entitled for compensation is considered by this Court without passing the order of remand to the Tribunal having regard to the fact that the accident took place in the year 1986 and the claim petition was filed in the year 1987. Before the Tribunal in justification of the claim two witnesses were examined including the claimant himself. In support of fracture of his right leg the claimant produced three x-ray plates marked as M.Os I to III along with some certificates and prescription of Link Poly Clinic and Nursing Home. 9. The undisputed fact is that the claimant sustained fracture injury on his right leg on account of the accident that took place on 15.11.1986 and he had taken treatment for such injury. 10. Having regard to the fact that the claimant appellant had suffered fracture injury on his right leg, a consolidated amount of Rs. 50,000/-(rupees fifty thousand) is awarded as compensation in favour of the claimant appellant towards fracture injury, pain and suffering, loss of enjoyment, medical expenses and other expenses with 6% interest per annum from the date of application till the date of payment. The Registry is directed to draw up the award in terms of this order. The Insurance Company is directed to pay the compensation amount to the claimant within four weeks from the date of receipt of this order. The appeal is allowed accordingly.