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Judgment
B. P. Routray, J
Heard Mr. G.C. Samantaray, learned counsel for the insurer â€" Appellant and Mr. A.S. Nandy, learned counsel for the claimant â€" Respondents.
It is submitted by both parties that Respondent No.2 in MACA No.780 of 2015 died on 19th August, 2012 and all his LRs. being on record, no
further substitution is required.
By the common judgment dated 31st December, 2014 in MAC Case Nos.155 and 157 of 2002, the learned 2nd MACT, Sambalpur has directed for
payment of compensation to the tune of Rs.5,48,800/-and Rs.2,45,000/- to the respective claimants along with 6% interest from the date of filing of the
claim applications. MACA No.779 of 2015 is in respect of MAC Case No.157 of 2002 and MACA No.780 of 2015 is in respect of MAC Case
No.155 of 2002. Both the appeals being arising out of the common judgment are heard together and disposed of by this common order.
The insurer has filed both these appeals being aggrieved with the common judgment. It is contended on behalf of the Appellant that the learned
Tribunal has committed error on record by not attributing contributory negligence to the driver of the truck.
The facts as reveal from the impugned judgment are that, the deceased persons namely Muliram Pradhan and Tuku Pradhan who were father and
son, were traveling in the offending Tempo bearing registration No.OR 06 D 2140 carrying their goods from village Balugaon to Brajnathpur on hire
basis on NH 23 on 6th May, 2001. On the way, due to rash and negligent driving of the driver of the Tempo, it dashed against the truck bearing
Registration No.OR 05 E 6595 coming from the front. As a result of the accident both the deceased died.
It is contended by Mr. Samantaray, learned counsel for the Appellant that in the charge-sheet filed by police the drivers of the Tempo as well as of
the truck have been indicted for criminal prosecution and as such the contributory negligence on the part of the driver of the truck is prima facie
established. But the claimants even did not implead the owner of the truck and consequently the Tribunal has also failed to appreciate the negligence
on the part of the driver of the truck.
Conversely, it is submitted by Mr. Nandy, learned counsel for the claimant â€" Respondents that, it is the choice of the claimants to implead either
of the offenders to claim compensation and it is not mandatory to implead both of them as parties in the claim application. In this regard he relies on
the decision of Hon’ble Apex Court in the case of Khenyei v. New India Assurance Company Ltd. & Ors., (2015) 9 SCC 273.
Having heard both parties and upon perusal of the impugned judgment it is seen that the learned Tribunal has discussed the issue at paragraph 4. It
is observed by the learned Tribunal that P.W.2 who was the eye witness of the accident has categorically stated that the driver of the Tempo was
responsible for causing the accident due to his rash and negligent driving. As such, it was concluded by the learned Tribunal to fix the negligence on
the part of the driver of the Tempo only.
Having analyzed the evidence of P.W.2, the approach of the learned Tribunal to fix the negligence on the part of the driver of the Tempo cannot be
faulted with. It needs to be mentioned here that no evidence on behalf of the insurer was adduced to suggest any contributory negligence on the part
of the driver of the truck. Merely because the charge-sheet has been filed indicting the driver of the truck also for criminal prosecution, cannot itself
satisfy the fact that the driver of the truck had contributed negligence in causing the accident. What to be seen is, the nature of evidence brought on
record on the given facts of the case. So, in absence of any evidence from the side of the insurer, the approach of the learned Tribunal in fixing the
negligence on the part of the driver of the Tempo cannot be said unjustified. Accordingly the contention of the insurer in this regard is rejected.
No dispute has been raised with regard to quantum of compensation. Thus, the amount of compensation so granted in favour of the respective
claimants in both the claim applications as directed by the learned Tribunal is confirmed.
Both the appeals are dismissed being devoid of merit.
The insurer â€" Appellant is directed to deposit the entire awarded amount with interest in both the cases before the tribunal within eight weeks
from today; where-after the same shall be disbursed in favour of the respective claimants as directed by the tribunal.
The statutory deposit made by the insurer in both the appeals before this court along with accrued interest be refunded to the Appellant - insurer
on proper application and on production of proof of deposit of the awarded amount before the tribunal.
An urgent certified copy of this order be issued as per rules.
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