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2016 DIGILAW 581 (ORI)

MANGULI JUANGA v. DINABANDHU SAHU

2016-07-29

S.C.PARIJA

body2016
JUDGMENT : Mr. S.C. Parija, J. - Heard learned counsel for the claimants-appellants and learned counsel for the Insurance Company-respondent No. 2. None appears for the owner-respondent No. 1 inspite of valid service of notice. 2. This appeal by the claimants-appellants is directed against the judgment award dated 09.1.2009 passed by the learned 1st Motor Accident Claims Tribunal Keonjhar in MAC Case No. 177 of 2005 awarding an amount of Rs. 163000- as compensation along with interest 9% per annum from the date of filing of the claim application till payment and directing the owner-respondent No. 1 to pay the same. 3. Learned counsel for the claimants-appellants submits that as there was sufficient evidence available on record to show that the deceased was travelling as a labourer in the offending vehicle (Tipper) No. -09-D6421 and died in an accident on 18.4.2005 due to the rash and negligent driving by the driver of the said vehicle learned Tribunal erred in holding the deceased to be a gratuitous passenger in the offending vehicle and saddling the liability on the owner of the vehicle. It is further submitted that even accepting the fact that the deceased was travelling as a gratuitous passenger in the offending vehicle in violation of the policy condition learned Tribunal should have directed the Insurance Company to pay the awarded compensation amount with the right to recover the same from the owner of the vehicle. In this regard learned counsel for the claimants has relied upon a decision of the apex Court in the case of Ms National Insurance Co. Ltd. v. Baljit Kaur and others AIR 2004 S.C. 1340 and the decision in the case of Manager National Insurance Co. Ltd. v. Saju P. Paul and Anr. (2013) 2 SCC 41 . It is accordingly submitted that the learned Tribunal was not justified in saddling the liability on the owner of the offending vehicle. 4. Learned counsel for the Insurance Company-respondent No. 2 while supporting the impugned award submits that the same having been passed on appreciation of the evidence available on record no interference is warranted. (2013) 2 SCC 41 . It is accordingly submitted that the learned Tribunal was not justified in saddling the liability on the owner of the offending vehicle. 4. Learned counsel for the Insurance Company-respondent No. 2 while supporting the impugned award submits that the same having been passed on appreciation of the evidence available on record no interference is warranted. It is submitted that as the deceased was found to be travelling as a gratuitous passenger in the offending vehicle at the time of the accident which was in gross violation of the policy condition no liability should have been saddled on the present appellant as the insurer of the offending vehicle as has been held in New India Assurance Co. Ltd. v. Asha Rani and others 2003 (2) SCC 223 . It is further submitted that as the driver of the offending truck was possessing a fake driving licence as has been found by the learned Tribunal which is also in violation of the policy condition the Insurance Company cannot be made liable to pay the compensation amount. 5. It is further submitted that even otherwise the assessment of the compensation amount is not proper and justified and the award of interest @ 9% per annum is highly excessive. 6. On a perusal of the impugned award it is seen that the learned Tribunal has taken into consideration the evidence available on record both oral and documentary in coming to hold that deceased Arjun Pradhan Juanga was travelling in the offending truck as a gratuitous passenger along with others at the time of the accident. Accordingly learned Tribunal has come to hold that as the deceased was travelling as a gratuitous passenger in the offending truck which was in violation of the policy condition no liability can be saddled on the insurer of the said vehicle. Learned Tribunal has further found that the driver of the offending truck was possessing a fake driving licence which was also in violation of the policy condition. Accordingly learned Tribunal has saddled the liability on the owner of the offending vehicle. 7. Learned Tribunal has further found that the driver of the offending truck was possessing a fake driving licence which was also in violation of the policy condition. Accordingly learned Tribunal has saddled the liability on the owner of the offending vehicle. 7. In the decisions of the apex Court relied upon by the claimants in Baljit Kaur and Saju P. Paul (supra) where the facts were similar to the facts in the present case the Hon'ble Court in order to ensure prompt payment of compensation to the family members of the deceased while protecting the interest of the insurer has directed the Insurance Company to pay the awarded compensation amount with the right to recover the same from the owner of the offending vehicle. 8. Therefore in the present case I feel it is just and proper that the Insurance Company should be directed to pay the awarded compensation amount with the right to recover the same from the owner of the offending vehicle. 9. As regard the quantum of compensation amount awarded and the basis on which the same has been arrived at I feel the interest of justice would be best served if the awarded compensation amount of Rs. 163000- is modified and reduced to Rs. 150000-. The award of interest @ 9% per annum is also not proper and justified and the same is accordingly modified and reduced to @ 6% per annum. 10. Accordingly the Insurance Company is directed to pay to the claimants the modified compensation amount of Rs. 150000/- along with interest @ 6% per annum from the date of filing of the claim application with the right to recover the same from the owner of the vehicle. The impugned award is modified to the said extent. 11. The Insurance Company-respondent No. 2 is directed to deposit the modified compensation amount of Rs. 150000- along with interest @ 6% per annum with the learned Tribunal within six weeks hence. On deposit of the amount the same shall be disbursed to the claimants proportionately as per the direction of the learned Tribunal given in the impugned award. MACA is accordingly disposed of. Issue urgent certified copy as per rules. Final Result : Disposed Off