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Judgment
B. P. Routray, J
Heard Mr. G.P. Dutta, learned counsel appearing for the Appellant -Insurer and Mr. K. Panigrahi, learned counsel appearing for Respondent Nos.1 to 3 - Claimants.
The Claimants have been granted compensation of Rs.9,07,280/- along with simple interest @ 7% per annum from 8th May, 2012, i.e. the date of filing of the claim petition by the learned 1st MACT, Cuttack in MAC Case No.302 of 2012.
It is disputed by the Appellant - Insurer that the alleged vehicle, i.e. the TVS motor cycle bearing Registration No.OR 05 T 7752 is not involved in the accident causing death of the deceased. It is further submitted that to substantiate such plea of the insurer they examined their investigator as O.P.W.1 and also relied on different documents from Ext.A to Ext.E including the inquest report and the final report submitted by police in UD GR Case No.165 of 2009. The Insurer also disputes the evidence of P.W.2 as an eye witness to the accident.
Conversely it is submitted on behalf of the Claimants - Respondents that the challenge of the insurer to deny involvement of the alleged motor cycle in the accident has no merit keeping in view the oral testimony of the eye witness who has been examined as P.W.2. It is also submitted that the final report submitted by police in the UD case to deny involvement of the motor cycle in the accident is without any substance since no eye witness of the occurrence has been examined by police.
On the backdrop of such rival contentions as advanced by the parties and upon perusal of the impugned award it appears that learned Tribunal under Issue No.I has discussed the contentions of the insurer in a detailed manner. It is relevant to note here that as per the opinion of the learned tribunal, the final report of police cannot be treated as a conclusive one to exclude the involvement of the alleged motor cycle in the accident and as such, it has been held that the deceased died of the vehicular accident involving the motor cycle bearing Registration No. OR 05 T 7752,
Admittedly, P.W.2 has been examined on behalf of the claimants to be an eye witness to the occurrence. As per the submission of the insurer he has admitted in his cross-examination that, he has not intimated anyone else about the occurrence for a period of four days from the date of accident and he is unable to narate the details of the spot of accident and therefore, his testimony is not believable as an eyewitness. This contention of the appellant is found unacceptable because the statements of P.W. 2 cannot be considered as sufficient to discard his version, as contended by the insurer. The statement of this witness as the owner of the saloon at the accident spot is not disputed and it cannot reasonably expected from such a witness to remember details of the area with specific particulars of different shops near the spot. A thorough perusal of the entire deposition of P.W.2 does not make him an untrustworthy witness entirely. Moreover in the final report as recorded by police, it is mentioned that the witnesses on examination have proved involvement of the offending motor cycle in question in the alleged accident. It is not known on what basis the investigating officer has opined about non-involvement of the alleged motor cycle and submitted the final report stating insufficient evidence. Thus, too much reliance cannot be placed on the said final report submitted by police.
Next coming to the evidence of O.P.W.1, the investigator on behalf of the insurer, his evidence cannot be treated as sufficient to sustain the contention of the Appellant. It is for many reasons. First, he is admittedly not an eye witness. Secondly, his knowledge is derived from the police report and knowledge of other unknown factors. There are also other reasons which need not be stated here.
Now balancing the evidence adduced from both the sides, it can safely be concluded that the evidence of P.W.2 coupled with P.W.1 is more weighty than the evidence of adduced by O.P.W.1. The discrepancies elicited from the mouth of P.W.2 in his cross-examination are insufficient to take away his evidence.
Moreover, the insurer is not disputing the validity of insurance policy nor does allege any breach of conditions of the policy in respect of the offending motor cycle or its owner. The Appellants are also not disputing the factum of accident nor they dispute the time and place of accident. They also do not suggest involvement of any other vehicle in the accident other than the offending motor cycle. Their only contention is that the present motor cycle is not involved in the alleged accident.
Considering all such factors as stated above and the evidence adduced from both sides, I completely agree with the finding of the learned trial court that the deceased died in a vehicular accident caused due to rash and negligent driving on the part of the rider of the motor cycle bearing Registration No. OR 05 T 7752. Accordingly no infirmity is seen in the impugned award.
No other issue is under challenge in the present appeal.
In the result the appeal is dismissed.
The insurer - Appellant is directed to deposit the awarded amount before the tribunal within a period of eight weeks from today.
The statutory deposit 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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