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2018 DIGILAW 1146 (GAU)

Oriental Insurance Co. Ltd. v. Kajor Rongpi

2018-08-06

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. S. Dutta, learned counsel for the appellants/claimants, and Mr. M.H. Choudhury, learned counsel for the respondent no. 3. 2. This appeal is directed against the award so passed in MAC Case No. 975/2006, whereby the learned Tribunal by its order dated 05.10.2012, has awarded an amount of Rs. 2, 08,600/- to the claimants/respondents as compensation for the death of her son. 3. Brief facts of the case is that on 20.02.2005 at about 2.30 am at Diphu Manja Road near Forest West Division Recreation Park, Late Dhanshing Killing, son of the claimant met with an accident due to rash and negligent driving of the truck bearing registration No. AR-01-3801 and the vehicle run over the deceased as a result of which, the deceased died on the same day. At the time of his death, the age of the deceased was 20 years and he was serving in a brick industry and stated to have earned Rs. 5000/- per month. The claimant being the mother of the deceased preferred the claim petitioner claiming Rs. 5,00,000/- as compensation. The said claim petition was registered as MAC Case No. 975/2006 and necessary notice was issued to the concerned parties. The owner and driver of the vehicle did not contest the case nor filed any written statement. So the case preceded ex-parte against them. Insurance Company however, contested the case by filing written statement (along with additional written statement subsequently) against all the claimants, denying all the allegation and with a submission that claimants has to prove their case in a strict manner and their liability subject to proof of valid documents and compliance of the insurance policy etc. In the additional written statement, it was raised that the deceased was gratuitous passenger in the said vehicle so he was not entitled to get any compensation and the Insurance Company is not liable to indemnify such claim. 4. The learned Tribunal on the basis of the pleadings, framed the necessary issues, as to whether the said deceased son of the claimant died due to rash and negligent driving of the vehicle and whether the claimant entitle to get compensation as prayed for. 5. After examining witnesses from both the sides the learned Tribunal finally awarded a compensation at the tune of Rs. 2,08,600/- to the claimant along with 6% interest, subject to adjustment of interim compensation. 5. After examining witnesses from both the sides the learned Tribunal finally awarded a compensation at the tune of Rs. 2,08,600/- to the claimant along with 6% interest, subject to adjustment of interim compensation. The Oriental Insurance Company was directed to pay the said amount vide order dated 15.10.2012. 6. Challenging the aforesaid findings, the Insurance Company has preferred this appeal with a contention that finding of the Tribunal is erroneous on the ground that it has failed to appreciate the evidence of the DW1 as well as their plea that was taken in their written statement, that deceased was a gratuitous passenger. 7. The learned counsel for the appellant Mr. Dutta, by referring to the evidence of DW1 has made a submission that in view of the evidence of DW1, it has been proved by the Insurance Company that the deceased person was gratuitous passenger in the offending vehicle and as such, the Insurance Company is not liable to indemnify the owner because of the violation of condition of policy. Attention has also been drawn to the evidence of DW2, the Administrative Officer, who has testified that as per the terms and conditions of the policy of the said vehicle the Insurance Company is not liable to pay any compensation to the claimant, as there was no provision for claim of such passenger in the aforesaid truck. Thus, basing upon the evidence of DW1 and DW2 the appellant has assailed the aforesaid appeal and according to them claim petition is not maintainable in the eye of law. 8. The learned counsel for respondent no. 3, has however, contended that such evidence adduce by the Insurance Company cannot at all be relied upon to show that deceased was a gratuitous passenger at the time of incident. It has also been pointed out that that the evidence of DW1 has no relevancy to the fact in as much as he being the respondent no. 2 in the said case as driver of the vehicle, who did not contested the case at earliest opportunity by filing any written statement to show that the deceased was gratuitous passenger in the said vehicle. But now the said person has appeared for on behalf of Insurance Company without there being no specific plea on his part. 9. 2 in the said case as driver of the vehicle, who did not contested the case at earliest opportunity by filing any written statement to show that the deceased was gratuitous passenger in the said vehicle. But now the said person has appeared for on behalf of Insurance Company without there being no specific plea on his part. 9. Due consideration has been given to the submission of learned counsel for both the parties and also gone through the matters on record and the evidence of both the parties. There was specific plea in the claim petition that aforesaid vehicle knocked down her son while on road and run over him as a result of which, her son died, which shows that it was not a case of the claimant that the deceased was travelling inside the vehicle as a passenger. More so, while it is stated that he was knocked down by the vehicle, the apparent implication would be that he was outside the vehicle, for which, the vehicle run over him. Such a plea of the claimant side could not however be destroyed by the respondent side. The driver and owner of the said vehicle did not come forward to say that the deceased was passenger of the vehicle on the day, and not even filed any written statement for which the case preceded ex-party against them. In such back drop, no credibility can be given to the evidence of DW1/driver of the vehicle as well as DW2 regarding the violation of condition of policy on the part of the claimants. Further, the Post mortem report also reveals that case has been registered against the driver of the offending vehicle/DW1. Accordingly, on the face of the evidence on record, it cannot be held that the deceased was inside the vehicle as a gratuitous passenger. The exhibit 3 issued by the employer of the company, where the deceased worked, reveals that he was an employee worked as Assistant Manager in the said field, till date, having a salary of Rs. 3, 5000/- per month. 10. There is no other dispute as regards the accident, age and the income as assessed by the Tribunal. The learned Tribunal has properly assessed, the age and income of the deceased, which is also not on higher side. 3, 5000/- per month. 10. There is no other dispute as regards the accident, age and the income as assessed by the Tribunal. The learned Tribunal has properly assessed, the age and income of the deceased, which is also not on higher side. Accordingly in the considered opinion of this Court, the impugned order passed by the Tribunal vide order dated 05.10.2012, calls for no any interference. 11. Accordingly the appeal stands dismissed with a direction to the Insurance Company to pay the compensation as directed by the Tribunal within a period of six (6) weeks from, today. Amount of statutory deposit can be withdrawn by the appellant. The appeal stands dismissed accordingly. Send back the LCR.