Oriental Insurance Co. Ltd. vs Nimai Charan Mishra & Ors.

G. Satapathy, J.

This is an appeal U/S.173(1) of the Motor Vehicles Act, 1988 (In short, “the Act”) by the appellant-Oriental Insurance Co. Ltd. (In short, “the insurer”) challenging the impugned judgment dated 27^th November, 2006 passed by the learned Second Motor Accident Claims Tribunal, Northern Division, Sambalpur (In short, “the Tribunal”) in Misc.(A) Case No.200 of 1996 (S) directing the insurer to pay a sum of Rs.1,65,000/- together with simple interest @ 6% per annum w.e.f. the date of filing of claim application on 29.11.1996 till actual realization to the claimants-R1 to 3, out of whom R1 has expired in the meantime and not substituted. By the impugned judgment, the right of recovery was granted to the insurer to recover the compensation amount by satisfying the same first to the claimants.

Bereft of unnecessary details, the facts involved in this case are that in an accident which took place on 13.07.1996 at about 7.30 AM at Tulsipada on NH No.6 on Bargarh-Sohella road, one Hemalata Mishra (hereinafter referred to as “the deceased”) was allegedly done to death by the Truck bearing Regd. No. WB-23-3942 (hereinafter referred to as, “the offending vehicle”) for rash and negligent driving of the driver. Upon a claim being preferred by the dependents of the deceased U/S.166 of the Act, the learned Tribunal registered the same vide Misc.(A) Case No.200 of 1996 (S) and proceeded in the matter by issuing notice to the owner and insurer of the offending vehicle, but the owner of the offending vehicle was set ex-parte as he did not participate in the claim, whereas the insurer contested the claim by disowning its liability on the ground that the driver of the offending vehicle was not having valid driving licence and the place of accident was not being mentioned in the police papers.

The learned Tribunal, however, allowed the parties to lead evidence and, accordingly, the claimants examined the claimant no.1-Nimai Charan Mishra as PW1 and relied upon the police papers under Exts.1 to 6 as against no evidence whatsoever by the appellant-insurer. Accordingly, the learned Tribunal after analyzing the evidence upon hearing the parties, passed the impugned judgment directing the insurer to pay the compensation indicated supra to the claimants. Being aggrieved with the impugned judgment, the insurer has preferred this appeal by reiterating its challenge as advanced in the claim. It is not out of place to mention here that R1-cum-claimant died during pendency of the appeal and the insurer has filed IA No.2207 of 2024 to delete the name of R1 as all his legal heirs are on record. Of course, such application/petition of the appellant has not yet been disposed of. Since there being no objection from any quarter, the said prayer of the insurer stands allowed and, accordingly, the name of R1 stands deleted. Hence, IA No.2207 of 2024 stands disposed of.

Heard, Mr. G.P. Dutta, learned counsel for the appellant, but none appears for R2 & 3 despite duly noticed and notice against R4-cum-owner remains unserved, but since R4-cum-owner was set ex-parte in the proceeding before the learned Tribunal, the re-issuance of notice against R4 stands dispensed with in view of the provision under Order XLI Rule 14(4) of the CPC.

After having considered the submission as advanced by Mr. G.P. Dutta, learned counsel for the appellant, there appears no dispute about the death of the deceased in a motor vehicular accident, but the insurer’s main challenge is for the driver not having valid driving licence and the place of accident was not being mentioned in the police papers. It is, however, found that the police paper discloses the death of the deceased in a motor vehicular accident and the submission of charge-sheet against the driver for rash and negligent driving of the offending vehicle itself is indicative of the death of the deceased due to rash and negligent act of the driver, but merely because the place of accident has not been explicitly stated in the police papers as advanced to be a ground to disbelieve the case of the claimants, it cannot ipso facto lead to any conclusion that the deceased had not died due to rash and negligent act of the driver of the offending vehicle. Law is very clear on the point that once the deceased is found to have died due to rash and negligent driving of the driver of the offending vehicle, no further evidence is required to prove the rash and negligent act and even the absence of oral evidence is also not fatal to the case of the claimants. Accordingly, the aforesaid two challenges of the appellant merits no consideration.

In the course of hearing of the appeal, Mr. Dutta, learned counsel for the appellant has advanced another argument that the same Tribunal has dismissed another claim application by granting Nil award in Misc. (A) Case No.208 of 1996 by holding that mere submission of charge-sheet against the driver of the Truck cannot prove the accident and cause thereof, but no evidence has been tendered by the insurer in this regard. Be that as it may, this Court is of the considered view that the submission of charge-sheet itself is sufficient to prove the rash and negligent act of the driver offending vehicle, provided there is no other clinching evidence to disprove that the driver was not rash and negligent, more particularly when the proceeding before the learned Tribunal is summary in nature and strict procedure for proof of facts like in other Civil cases is not required in a claim for compensation on account of death and injuries arising out of vehicular accident inasmuch as the provision for claim of compensation on account of death of a person out of use of motor vehicular accident is a beneficial provision of law and it is to be interpreted in favour of the claimants to advance social and welfare justice and to prevent the claimants from destitution. Besides, the finding of the learned Tribunal by no stretch of imagination is binding on the appellate forum, rather the mistake committed by the learned Tribunal is subject to rectification/correction in the appellate forum. In the aforesaid facts and circumstance, the assertion of the insurer that another claim qua other claimants being not find the favour of the learned Tribunal is not a ground to reject the claim application of the claimants in another case.

On the other hand, the learned Tribunal while computing the compensation has rightly followed the law and there is no real dispute against the computation of compensation. Besides, the claimants have never challenged the quantum of compensation by filing an independent appeal and the present appeal being relate back to the year 2007, this Court does not find any rhyme and reason to differ with the findings arrived at by the learned Tribunal while computing compensation. In addition, the appellant-insurer has filed this appeal with a delay of 298 days, which is of course condoned, but that can also be a ground not to admit the appeal, especially when no precise and accurate reasons have been advanced for condonation of delay of such duration. Besides, such limitation application of the insurer has been considered with only a formal order, and the same was subject to payment of cost of Rs.5,000/- to the learned counsel appearing for the claimants then. In the aforesaid situation, this Court does not find any merit in the challenge of the insurer to the impugned judgment. In addition, the right to recovery as granted to the insurer having not been challenged by anyone, the same remains confirmed.

In the result, the Appeal stands dismissed and the impugned judgment is, hereby, confirmed. Consequently, the insurer is directed to pay the compensation to the claimants in terms of the impugned judgment within eight weeks hence. The statutory deposit together with the accrued interest thereon be refunded back on receipt of proof of deposit of compensation amount before the learned Tribunal.