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Judgment
A.K. Mohapatra, J.
This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
| Company as well as learned counsels appearing for the Respondent | |
No.2 & 3-owner of the vehicles.
Despite valid service of notice, none appears for the Respondent No.1-Claimant. Perused the appeal memo as well as the impugned judgment dated 30th July, 2004.
| By filing the present appeal under Section 173 of the Motor | |||
| have | |||
| approached this Court thereby challenging the fixation of liability on | |||
| Company by the learned Third Motor | |||
| Accident Claims Tribunal, Puri in M.A.C. No.220/594 of 1993/1987 | |||
vide judgment dated 30th July, 2004.
| Company, at the outset, contended that while deciding the abovenoted | |||
| M.A.C. Case, the owner has not filed the valid insurance policy in | |||
| respect of the offending vehicle. On such ground, learned counsel for | |||
| the Appellants-Insurance Company stated before this Court that the | |||
| learned Tribunal by virtue of the impugned judgment is unsustainable | |||
in law.
On perusal of the record, it appears that the Respondent No.1-Claimant filed a claim application under Section 110-A of the M.V. Act, 1939 claiming a total compensation of Rs.1,20,000/- from the Opposite Parties therein.
| direction, driven in a rash and negligent manner, collided with the | |||||
| at Capital Hospital, Bhubaneswar as indoor patient for about 20 days | |||||
and he has spent for about Rs.30,000/- in the treatment.
| Learned Tribunal, by virtue of the impugned judgment, has | |||||
| Accordingly, it has | |||||
| annum from the date of filing of application i.e. 07.09.1987 till the | |||||
| date of realization and the liability has been saddled with the | |||||
| the Tribunal, the Appellants-Insurance Company has approached this | |||||
Court by filing the present appeal.
| Company. He further contended that the learned Tribunal has not | ||||
| framed any specific question with regard to the validity of the | ||||
| Tribunal. In such view of the matter, learned counsel for the | ||||
| Appellants contended that the impugned award is liable to be set aside | ||||
on that score alone.
| on the other hand, contended that although the owner has not contest | ||||
| before the Tribunal, however, the learned Tribunal, while answering | ||||
| the Issue No.4, has made an observation that in the claim application | ||||
the Appellants-Insurance Company has not led any evidence except a simple denial that the vehicle was not insured with them. Accordingly, the Tribunal has come to a conclusion that the Claimant has discharged his onus and that the Insurance Company has failed to adduce any rebuttal evidence with regard to the absence of any insurance policy or validity thereof. Accordingly, the learned Tribunal has not committed any illegality in saddling the liability with the Insurance Company.
On a careful analysis of the rival contentions of the learned counsels appearing for the respective parties, further taking note of the grounds taken in the appeal memo as well as on close scrutiny of the impugned award, this Court found that the Appellants-Insurance Company have approached this Court challenging the impugned award on the ground that the liability has been erroneously fixed with the Appellants-Insurance Company. The aforesaid issue is the sole issue to be determined in the present appeal.
On perusal of the trial court record which has been called for and on a close scrutiny of the impugned award, this Court found that the learned Tribunal while answering Issue No.4 has categorically stated that the Appellants-Insurance Company has failed to adduce any evidence with regard to the existence and validity of the policy. On the contrary, the Claimant has discharged his onus by stating in the claim petition that both the vehicles were insured with the Appellants-Insurance Company. Since the owner has not contested the claim application, the entire onus shifts to the Appellants-Insurance Company to establish the fact that the offending vehicle was not insured with the Insurance Company. This Court further observes that the Claimant, being a passenger of the vehicle, could not have produced the Insurance Policy of the offending vehicles. As such, no fault can be found with the Claimant. Moreover, the learned Tribunal, after considering the aforesaid fact, has come to a conclusion that in the absence of any rebuttal evidence, the stand of the Claimant in the claim application is to be accepted and, accordingly, fixed the liability to the Appellant-Insurance Company.
On a careful analysis of the impugned judgment, this Court found that the learned Tribunal has not committed any illegality while arriving at the aforesaid conclusion, inasmuch as the Appellants-Insurance Company has failed to contest the case or produce any rebuttal evidence. Moreso, the owner of the vehicle, who was set ex parte, has also not disputed the claimants’ case.
Learned counsel for the Appellants-Insurance Company, at this juncture, contended that lack of insurance policy, being a question of law, can be raised at the belated stage. In the facts and circumstances of the case, this Court is of the view that such a question is a mixed question of fact and law and that the Appellants-Insurance Company has measurably failed to raise such ground before the Tribunal and failed to lead any evidence in support of such contention. Therefore, they are estopped from raising such ground in the present appeal.
On a careful analysis of the submissions made by the learned counsels appearing for both sides, further taking note of the impugned award and keeping in view the fact that the accident is of the year 1987 and that the matter is pending before this Court since 2005, this Court is of the view that the impugned award does not call for any interference and the same is required to be disposed of without interfering with the award in the larger interest of justice.
Accordingly, the appeal is dismissed.
However, while disposing of the present appeal, this Court modifies the interest awarded by the Tribunal to the extent that the Appellants-Insurance Company shall now deposit the awarded amount, if not yet deposited, along with interest @ 6% per annum from the date of filing of claim application till the date of realization of such amount. Let the aforesaid amount be deposited before the Tribunal within eight weeks, if the same has not deposited in the meantime. Thereafter, the Tribunal shall take necessary steps to disburse the awarded amount in favour of the Claimant as expeditiously as possible in accordance with law.
It is further directed that on production of a copy of the acknowledgment evidencing deposit of the awarded amount along with interest before the registry of this Court, the registry of this Court shall release the statutory deposit along with accrued interest in favour of the Insurance Company on an application being filed by the learned counsel for the Insurance Company before the registry of this Court.