Divisional Manager Oriental Insurance Company Ltd vs Asit Chandra Barik Vs

V. Narasingh, J

Assailing  the  award  dated  06.09.2010 passed by the learned 3rd M.A.C.T., Bhubaneswar in MACT Case No.2165 of 1992 directing the Appellant-Insurance Company to pay a compensation of Rs.45,700/- with simple interest at the rate of 9% both pendentelite and future from the date of filing of the claim petition i.e. 9.3.1992 till the date of payment on account of injuries suffered by one Rabindra Kumar Patra-Respondent No.2 herein against a claim of Rs.1,50,000/-, the present appeal is preferred by the Insurance Company.

The owner of the offending vehicle a Bullet Motor Cycle bearing registration number OR-5-2886 was cited as Opposite Party No.1 before the learned Tribunal and Respondent No.1 before this Court. There is no appearance on behalf of the owner of the offending vehicle before this Court.

It is the case of the Claimant (Respondent No.2 herein) that he suffered injuries on account of rash and negligent driving of the driver of the Bullet Motor Cycle bearing registration number OR-5-2886 in an accident which occurred on 26.01.1992 at about 10 A.M near Palasuni when the offending vehicle being driven in a rash and negligent manner dashed against the Claimant. It was stated that the Claimant was shifted to the hospital for treatment and was admitted as an indoor patient from 26.1.1992 to 1.2.1992 with suspected fracture of tibia and fibula.

In response to the notice received owner (Respondent No.1 herein) and the present Appellant Insurance Company appeared before the learned Tribunal and resisted the claim and on the pleadings of the parties, the following issues were framed:

“1. Whether the injured Rabindra Kumar Patra sustained injuries due to motor vehicle accident involving vehicle No.OR 5 2886 (Motor Cycle) ?

Whether the driver of the offending vehicle was rash and/or negligent in causing the accident ?

Whether the petitioner is entitled to get compensation ? and if so to what extent and from which O.Ps?”

Injured  Claimant  examined  himself  as  P.W.1. There is no oral evidence adduced on behalf of the Insurance Company but the documents were admitted as evidence and marked as exhibits by the Claimant and the Insurance Company. The material ones being the driving licence and the insurance policy were marked as Exts.A and B respectively.

On an analysis of the evidence on record, learned Tribunal quantified the compensation on different counts which runs thus:

“1. Medical expenses                          Rs.5000/-

incurred by the

Petitioner

Charges towards                              Rs.700/-

engagement of

bystander

Special damages                             Rs.20,000/-

towards pain and

suffering

Inconvenience and                         Rs.20,000/-

discomfort and mental

stress

Total :                                                    Rs.45,700/-”

Accordingly, learned Tribunal awarded a compensation of Rs.45,700/- with simple interest at the rate of 9% both pendentelite and future from the date of filing of the claim petition i.e. 9.3.1992 till the date of payment.

Mr. Panda, learned counsel for the Appellant-Insurance Company urged with vehemence that it was a case of no insurance policy involving the offending vehicle. Hence, the Appellant-Insurance Company cannot be saddled with liability.

It is the further submission of the learned counsel for the Insurance Company that the specific stand in this regard was taken for which amendment of the written statement was sought for before the learned Tribunal and the learned Tribunal allowed such amendment. In the face of such stand Insurance Company cannot be held liable.

Mr. Bhagat, learned counsel for the Respondent No.1-Claimant, supported the impugned award and submitted that since there is no illegality or infirmity in the impugned award, the Appeal is liable to be dismissed.

Taking into account the specific stand of the Insurance Company, the LCR was called for and perused.

Lack of contractual obligation being the primary ground of challenge this Court proceeded to examine the materials on record. On such examination it comes to fore that the learned Tribunal in Paragraph-7 of the impugned award dealt with the same in the light of the specific plea of the offending vehicle, not being insured.

On such perusal of LCR, it is seen that the FIR vide Ext.1 contains the number of the offending vehicle as OR 05 2886 so also in the charge sheet Ext.2 under the heading Column No.7 it is stated “……That on 26.1.92 at 10 A.M the accd. noted in col.4 drove Bullet motor cycle no.OR-05-2886 in rash and negligent manner on N.H.5 near Palasuni and caused grievous injury to the P.W.3”.

Ext.3 is the seizure list and the Column No.4 under the heading Articles Seized clearly refers to the offending vehicle and its colour being “Black” and the insurance policy with cover note of A3/113566 valid upto 22.11.92, covering the date of accident i.e. 26.01.1992.

It is apt to note here that in the charge sheet there is a reference to “PBK 352” without any further details and referring to the same, it is submitted by the learned counsel for the Insurance Company Mr. Panda that the vehicle bearing registration number OR 05 2886 was not at all involved and has been introduced just to claim compensation.

It is also submitted that the award of compensation is otherwise on the higher side.

On perusal of the documentary evidence on record, in the light of the written statement on behalf of the owner that the vehicle in question i.e OR 05 2886 is involved in the accident, the stand of the Insurance Company of manipulation of the record regarding involvement of the offending vehicle in the accident is untenable.

8-A. It is also apt to note that the Appellant Insurance Company did not adduce any evidence to fortify its aforementioned stand.

In the light of the above, this Court is persuaded to hold that there is no illegality or arbitrariness in the adjudication of the claim application culminating in award of Rs.45,700/- for the injuries suffered along with interest of 9% as awarded.

Within six weeks of production of proof regarding deposit of the modified amount before the Tribunal, the statutory deposit along with accrued interest shall be refunded to the Insurance Company on proper application.

The MACA being devoid of merit stands dismissed.

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