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2018 DIGILAW 810 (ORI)

B. M. N I Company Limited v. Pabitra Majhi

2018-11-19

BISWANATH RATH

body2018
JUDGMENT B. Rath, J. - Both the Appeals being involved common fact as well as issues, on the consent of the parties, both the Appeals are taken up together for hearing and are disposed of by this common order. 2. Heard Shri Narasingh, learned counsel appearing for the appellant and Shri Joshi, learned counsel appearing for the respondent no.1. None appears for the respondent no.2 at the time of hearing. 3. Both the appeals involve a challenge to the common impugned judgment and award dated 14.08.2012 passed in M.A.C. No.87 of 2007 by the learned District Judge-cum-M.A.C.T.(I), Balangir. 4. Short background involving the M.A.C. Case is that the ClaimantRespondents filed applications vide M.A.C. No.86 of 2007 and M.A.C. No.87 of 2007 respectively with the facts that on 06.06.2006 at about 4 p.m. while the injured - Pabitra Majhi along with his wife, namely, Tila @ Dibya Majhi and their small child were going towards their native village- Malpara from Patnagarh after attending medical work by riding with his Hero Honda motorcycle at Mundodarah chowk, the offending vehicle came with rash and negligent speed and dashed against them, for which the appellants sustained grievous injury on their persons making them lying on the road. It is also alleged that the offending vehicle dashed and dragged them near about ten feets. It is in the premises of rash and negligent driving by the offending vehicle, the Claimants-respondents have claimed financial compensation involving the Insurance Company and bringing a case involving an insured vehicle. On its appearance, the Insurance Company in filing the written statement had a clear denial about the existence of the Insurance policy and, as such, denied the liability of the Insurance Company involved herein. Thus, the Appeal by Insurance Company appears to be against liability. Considering the pleadings of the parties as well as the evidence oral and documentary being produced by both the sides, the learned District Judge-cumM.A.C.T.(I), Balangir passed an Award in favour of the Claimant-respondents directing the Insurance Company to pay a sum of Rs.2 lacs to the Claimanthusband with interest @7% per annum from the date of filing of the claim petition till its realization within one month. The Insurance Company is also directed to pay Rs.18,700/- to the Claimant-wife with interest @7% per annum from the date of filing of the claim till its realization within one month. The Insurance Company is also directed to pay Rs.18,700/- to the Claimant-wife with interest @7% per annum from the date of filing of the claim till its realization within one month. Assailing the impugned orders, the appellant-Insurance Company in filing both the separate Appeals challenged the liability saddled by the Court below on the Insurance Company. 5. Shri Narasingh, learned counsel appearing for the appellant-Insurance Company taking this Court to the grounds taken in the memorandum of appeal, the discussions made in the impugned award, more particularly in paragraph-11 as well as the discussions on the marking of documents by the respective parties, contended that the ultimate finding of the District Judge-cum-M.A.C.T.(I), Balangir remains contrary to the discussions on the claim of the Insurance Company as well as the materials, more particularly Exts.H and J admitted in the lower Court proceeding. It is in the above premises and on the ground of perversity and the reason in contrary to the materials available on record, learned counsel appearing for the Insurance Company submitted that saddling of liability on the Insurance Company by the lower Court in both the Awards is improper and ought to be interfered and set-aside. 6. Shri Joshi, learned counsel appearing for the Claimant-respondents on the other hand taking this Court to the findings arrived at by the lower Court, contended that for the discussions in the finding portion, there is no illegality and further for the observations of the Court below that there is no material either oral or documentary to establish non-insurability of the vehicle, there is no scope of interfering in such impugned awards by this Court. 7. Considering the rival contentions of the parties and on perusal of the Issue No.I coupled with the discussions in paragraph-8 as well as in paragraph11 and the disclosures from the award regarding filing of the registered postal receipt and receipt of Flying Courier vide Exts.H and J by the Insurance Company, particularly to establish that the vehicle involved was not insured on the date of accident, thereby taking away the liability of the Insurance Company, this Court finds, it is a case of non-consideration of the materials available on record. For the perversity in the finding and further being contrary to the admitted materials available on record, this Court finds, the impugned awards so far it relates to saddling the liability on the Insurance Company is not sustainable. In the process, interfering in the impugned award to the extent fixing the liability on the Insurance Company in both the matters, this Court declares fixation of liability on the Insurance Company as bad. This Court finds, there is no appeal by the owner involving the said awards, in the circumstance, this Court while modifying the awards to the extent indicated above, further directs the owner-respondent no.2 in both the appeals to make the compensation granted by the District Judge-cum-M.A.C.T.(I), Balangir involving the impugned award. 8. Both the Appeals stand allowed accordingly, but however with the modification of the impugned awards only in respect of liability which is now shifted to the owner. Since both the appeals are at the instance of the Insurance Company, the statutory deposit may be returned back to the Insurance Company along with accrued interest on proper application.