New India Assurance Co. Ltd. v. Ananda Chandra Rout
2018-05-18
B.R.SARANGI, VINEET SARAN
body2018
DigiLaw.ai
JUDGMENT Dr. B.R. SARANGI, J. - This appeal is directed against the order dated 07.05. 1999 passed in M.A. No. 717 of 1996, by which the learned Single Judge has modified the award dated 26.09 .1996 passed by the IIIrd Motor Accident Claims Tribunal, Balasore in M.A.C.T. Case No. 135/184(c) of 1992- 89 by reducing the awarded amount from Rs.35,000/- to Rs.30,000/- and directed that the sum of Rs.17,500/-, which was kept in fixed deposit in this Court, along with the entire accrued interest may be paid to the claimant respondent no.1 by way of account payee cheque, and the balance amount of Rs.12,500/- be paid by the insurance company along with interest at the rate of 10% from the date of claim application within a period of two months from the date of passing of the order, failing which the said amount shall carry interest at the rate of 12% thereafter. 2. The factual matrix of the case, in hand, is that respondent no. 1, while travelling as a driver in the bus bearing registration number OAU 2969 belonging to OSRTC (Orissa. State Road Transport Corporation), it showed some mechanical trouble, for which he was checking the same. Just then, a truck bearing registration number ORU 7118 came from the opposite direction on N.H. (National Highway) No.5 and dashed against the said bus, as a result of which it was rolled down and respondent no- 1 received severe injuries. Due to the injuries sustained, respondent no.1 was admitted as an indoor patient in Bhadrak sub-Divisional Hospital and treated under Dr. Parsuram Sahu, the Orthopedic Specialist. His right hand shoulder joint was broken into 2-3 pieces and left leg middle finger and ring finger were completely damaged. 3. The respondent no.1 then filed an application under section 166 of the Motor vehicles Act, 1988 claiming compensation before the IIIrd Motor Accident claims Tribunal, Balasore, which was registered as M.A.C.T. Case No. 135/184 (c) of 1992-89. Pursuant to the notice issued, the appellant insurance company appeared before the tribunal and filed its written statement denying and disputing the claim. However, respondent no.2, the owner of the truck did not contest. During trial respondent no.1 examined himself, besides another witness. He proved copies of the FIR, charge-sheet, seizure list and injury report, which were marked as Exts .l to 4.
However, respondent no.2, the owner of the truck did not contest. During trial respondent no.1 examined himself, besides another witness. He proved copies of the FIR, charge-sheet, seizure list and injury report, which were marked as Exts .l to 4. On behalf of the appellant insurance company, the insurance policy was exhibited as Ext.A. After due adjudication, the tribunal came to a definite Finding that the accident took place due to rash and negligent driving of the truck in question and held that the offending vehicle was insured with the appellant, although the number of the vehicle in the policy Ext.A differs from that mentioned in the police papers. But the tribunal, by judgment dated 26.09.1996, awarded a sum of Rs.35,000/- as compensation towards the injuries sustained by respondent no. 1. 4. Being aggrieved by the aforesaid award dated 26.09.1996 ,the appellant filed M.A. No. 717 of 1996 before this Court. The learned Single Judge, vide order dated 07.05. 1999, accepting the suggestion of respondent no.1, disposed of the appeal in the spirit of Lok Adalat and modified the award, as already stated hereinbefore. Against the said order, the present appeal has been filed by the insurance company. 5. It appears that the present appeal was filed with delay of 75 days. Notice was issued to the respondents, vide order dated 04.01.2005, in the matter of limitation in Misc. Case No. 122 of 1999. Pursuant to the said notice, respondent no.1 appeared through its counsel. ‘ So far as respondent no.2 is concerned, notice was returned unserved due to want of present correct address. Therefore, direction was issued, vide orders dated 19.05.2006 and 05.03.2009, to take fresh steps for issuance of notice to respondent no.2 with correct address. But no steps have been taken by the appellant till date. In any case, respondent no.2, the owner of the truck, having not contested before the tribunal and also before this Court in misc. appeal, and. in the meantime more than a decade having been passed, it being an old case of the year 1999 , this Court, instead of directing the appellant to take fresh steps, disposed of the matter with the consent of the parties at this stage. 6. Mr. S.S. Rao, learned counsel appearing for appellant submitted that without examining a doctor to establish the extent of injuries and disability sustained by the claimant respondent no.
6. Mr. S.S. Rao, learned counsel appearing for appellant submitted that without examining a doctor to establish the extent of injuries and disability sustained by the claimant respondent no. 1, the award of compensation of Rs.35,000/- made by the tribunal, which has been modified by the learned Single Judge to Rs.30,000/- in the spirit of Lok Adalat, cannot be sustained in the eye of law, as the materials available on record have not been considered in their proper perspective. 7. Learned counsel for respondent no.1 contended that since the matter has been decided by the learned Single Judge in the Lok Adatat spirit and the compensation amount has been reduced from Rs.35,000/- to Rs.30,000/-, the impugned award, as well as the order passed by the learned Single Judge, does not warrant any interference by this Court in the present appeal. 8. Having heard learned counsel for the parties and after going through the records, it appears that there is no dispute with regard to factual matrix of the case in hand. The only question raised by the learned counsel for the appellant is that the tribunal, without examining a doctor to establish the extent of injuries and disability sustained by respondent no.1, could not have awarded compensation of Rs.35,000/-, which has been modified by the learned Single Judge to Rs.30,000/- in the Lok Adalat spirit. But fact remains, once the misc. appeal has been disposed of by the learned Single Judge in the Lok Adalat spirit and award of the tribunal has been modified with the consent of the parties, the same cannot be interfered with in this letter’s patent appeal. In other words, since on the agreement of the parties the amount of compensation has been reduced from Rs.35,000/- to Rs.30,000/- by the learned Single Judge in the spirit of Lok Adalat, at subsequent stage the parties are precluded to challenge the same in a letter’s patent appeal. Even otherwise, the fact that respondent no.1 had sustained injuries has been proved on the basis of the injury report submitted and marked as exhibit in course of hearing and the same has neither been disputed nor objected to by the appellant. Once the injury report has been marked as exhibit, without any objection, and the same forms part of the record itself, the question of examination of a doctor to establish the extent of injuries does not arise.
Once the injury report has been marked as exhibit, without any objection, and the same forms part of the record itself, the question of examination of a doctor to establish the extent of injuries does not arise. Thus, the award of the tribunal granting compensation of Rs.35,000/-, having been modified by the learned Single Judge in misc. appeal to Rs.30,000/- in Lok Adalat spirit, cannot be said to be exorbitant or irrational so as to warrant interference by this Court in the present appeal. Therefore, we are not inclined” to interfere with the order dated 07.05. 1999 passed by the learned Single Judge in Misc. Appeal No. 717 of 1996, after lapse of more than two decades from the date of accident. 9. There is thus no merit in this letter’s patent appeal, which is hereby dismissed. No order to costs. Appeal Dismissed.