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Branch Manager, Oriental Insurance Co. Ltd. Vs. Smt. Sakuntala Chhotray and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberA.H.O. Nos. 64 and 65 of 2000 and 121 of 2001
Judge
Reported inI(2005)ACC558; 2006ACJ870; 97(2004)CLT741; 2004(I)OLR269
ActsOrissa High Court Rules - Rule 2; Motor Vehicles Act - Sections 170
AppellantBranch Manager, Oriental Insurance Co. Ltd.;kumari Priyadarshani Chhotray and ors.
RespondentSmt. Sakuntala Chhotray and ors.;sangram Ketan Parida and anr.
Appellant AdvocateM. Sinha and S.K. Mohanty in A.H.O. Nos. 64 and 65/2000 and R.N. Mohanty, R.C. Ojha and A.K. Jena in A.H.O. No. 121/2001
Respondent AdvocateG.P. Mohanty and ;H.C. Mohanty in A.H.O. Nos. 64 and 65/2000
Cases ReferredShimla v. Kamla
Excerpt:
.....glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it was also submitted that the quantum of compensation awarded is high and excessive and the tribunal as well as the learned single judge have not taken into consideration the negligence of the deceased. in the absence of any specific material put forward on behalf of the owner of the vehicle or the insurer, the findings arrived at by the tribunal as well as the learned single judge cannot be held to be unreasonable......three letters patent appeals arise out of a common judgment dated 15.3.2000 passed by a learned single judge of this court in m. a. no. 821 of 1997 and m. a. no. 646 of .1998.2. respondent nos. 1 to 3 in a. h. o. nos. 64 and 65 of 2000 and the appellants in a. h. o. no. 121 of 2001 had filed m.a.c.t. misc. case no. 431/72 of 1993/91 before the fourth motor accident claims tribunal, puri claiming compensation to a tune of rs. 6,27,000.00 alleging that deceased bikram chhotray and his wife along with two children while proceeding on a motor cycle on 4.9.1999 parked the motor cycle on the left side of the road and proceeded a little ahead to answer call of nature. at that moment the offending bus dashed against the deceased couple causing their death at the spot. a single claim case was.....
Judgment:

A.S. Naidu, J.

1. All these three Letters Patent Appeals arise out of a common judgment dated 15.3.2000 passed by a learned Single Judge of this Court in M. A. No. 821 of 1997 and M. A. No. 646 of .1998.

2. Respondent Nos. 1 to 3 in A. H. O. Nos. 64 and 65 of 2000 and the Appellants in A. H. O. No. 121 of 2001 had filed M.A.C.T. Misc. Case No. 431/72 of 1993/91 before the Fourth Motor Accident Claims Tribunal, Puri claiming compensation to a tune of Rs. 6,27,000.00 alleging that deceased Bikram Chhotray and his wife along with two children while proceeding on a motor cycle on 4.9.1999 parked the motor cycle on the left side of the road and proceeded a little ahead to answer call of nature. At that moment the offending bus dashed against the deceased couple causing their death at the spot. A single Claim Case was filed on account of death of two persons. Out of the claimants, claimant No. 1 was the mother of deceased Bikram Chhotray and claimant Nos. 2 and 3 were the minor daughter and son respectively. The owner of the offending bus though received notice did not contest the claim case. The Insurance Company filed its written statement baldly denying the claim. The Tribunal arrived at the conclusion that the accident had occurred due to negligent driving of the driver of the bus and taking into consideration various factors, awarded a compensation of Rs. 3,00,000.00. The claimants thereafter preferred Misc. Appeal No. 646 of 1998 before this Court claiming higher compensation; whereas the Insurance Company challenged the award before this Court by filing Misc. Appeal No. 821 of 1997. Both the said Misc. Appeals were heard together and were disposed of by the learned Single Judge by a common judgment. The learned Single Judge took into consideration the fact that deceased Bikram Chhotray's monthly income was Rs. 3,000.00 and his monthly contribution to the family could not be less than Rs. 2,000,00, if not more. Therefore, applying multiplier '75' as the deceased was only thirty three years' old and also taking the view that the mother and minor children of the deceased were also entitled to compensation towards loss of estate and funeral expenses, the learned Single Judge thought it just and proper to award a compensation of Rs. 4,00,000.00 in a conservative estimate. The learned Single Judge relying upon the provisions of Section 170 of the Motor Vehicles Act, held that as the Insurance Company had not taken the permission of the Court below it was not entitled to raise any factual contention. The submission of the Insurance Company that as the driver of the offending vehicle did not possess any driving licence, the Insurance Company was not liable to pay the compensation was considered by the learned Single Judge and it was held that in absence of any issue to that effect, it was not possible to delve into the same. The learned Single Judge directed that the entire compensation amount with interest thereon should be deposited by the Insurance Company in Court and the Tribunal was to re-determine the question regarding inter se liability of the Insurance Company vis-a-vis the owner of the bus by giving opportunity of hearing to the said parties. With the aforesaid direction both the Misc. Appeals were dismissed.

3. A.H.O. No. 65 of 2000 has been filed by the Insurance Company challenging the judgment in Misc. Appeal No. 821 of 1997. Similarly, A.H.O. No. 64 of 2000 has been filed by the same Insurance Company challenging the judgment in Misc. Appeal No. 646 of 1998 whereas A.H.O. No. 121 of 2001 has been filed by the claimants praying for enhancement of the compensation.

4. The grievance of the Insurance Company is that the learned Single Judge committed an error in not arriving at the conclusion that the Insurance Company was not liable to pay the compensation as the driver of the offending vehicle did not possess any driving licence and thus there was a breach of the policy conditions. It was also submitted that the quantum of compensation awarded is high and excessive and the Tribunal as well as the learned Single Judge have not taken into consideration the negligence of the deceased.

5. After hearing the learned counsel for the parties, to appreciate the submissions made, we scrutinised the evidence and other materials available on record. It appears that no specific permission as mandatorily required under Section 170 of the. Motor Vehicles Act was obtained by the appellant. The driver of the offending vehicle was also not examined. In the absence of any specific material put forward on behalf of the owner of the vehicle or the insurer, the findings arrived at by the Tribunal as well as the learned Single Judge cannot be held to be unreasonable. The contention of the insurer that in absence of any driving licence of the driver the liability should be borne by the owner of the vehicle and not by the Insurance Company cannot be considered at this Letters Patent stage, inasmuch as no specific issue was framed by the Tribunal regarding inter se liability of the Insurance Company vis-a-vis the owner of the vehicle. Section 149(4) of the Motor Vehicles Act also implies that the Insurance Company should be called upon to pay the entire compensation amount and subsequently claim reimbursement of the same from the owner of the vehicle if it is found that there was breach of the conditions of the insurance policy. In the present case, claimant Nos. 2 and 3 are minor children of the deceased. They have lost both their parents in the accident which occurred in the year 1990. Almost thirteen years have passed in the meanwhile. It is submitted that these minor children are leading their life with great financial stringency and virtually they are now orphans. Considering all these aspects, we feel that Rs. 4,00,000.00 awarded as compensation to the claimants is just and proper and should not be interfered with. Applying the principles laid down in the case of New India Assurance Co., Shimla v. Kamla, AIR 2001 SC 1419, and in view of the clear provision of Section 149(4) of the Motor Vehicles Act, we have no hesitation to arrive at a conclusion that the Insurance Company should deposit the entire compensation amount of Rs. 4,00,000.00 with interest thereon before the Tribunal. Of course an opportunity should be given to the Insurance Company to raise the question of inter se liability of the Insurance Company vis-a-vis the owner of the offending vehicle. Learned Single Judge has rightly directed the Tribunal to decide the said question. We do not find any error in the decision of the learned Single Judge. The prayer of the appellants in A.H.O. No. 121 of 2001 for enhancement of the compensation amount is not sustainable. The compensation awarded by the learned Single Judge is just and proper. Accordingly, we have no hesitation to dismiss all the three A.H.Os.

6. In the result, all the three A.H.Os are dismissed. Parties to bear their respective costs.

Sujit Barman Roy, C. J.

7. I agree.


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