The Manager, M/s New India Assurance Co. Ltd., Khordha vs Mamata Rath & Ors.

G. Satapathy, J.

This is an appeal U/S.173(1) of the Motor Vehicles Act, 1988 (in short, “the Act”) by the Manager M/s. New India Assurance Co. Ltd, Khordha (in short, “the insurer”) assailing the impugned judgment dated 31.01.2025 passed by learned 5^th Motor Accident Claims Tribunal, Khordha (in short, “the Tribunal”) in MAC Case No.09 of 2022 directing the insurer to pay a sum of Rs.37,21,538/- along with simple interest @ 6% per annum w.e.f 14.03.2022 till its actual realization to the claimants-cum-Respondent Nos. 1 & 2.

The facts in background are that in an accident which took place on 23.11.2021, one Sarbeswar Rath (hereinafter referred to as “the deceased”) while proceeding towards Jatni from Khordha on his Motor Cycle was allegedly hit by one Mini Truck bearing Regd. No. OD-02-E-7480 (hereinafter referred to as “the offending vehicle”) near Carmel English Medium School, Badatota resulting in his death and an FIR being filed on the accident came to be registered in Jatni PS Case No. 629 of 2021 which resulted in submission of charge sheet against the driver for offence U/Ss. 279/304(A) of IPC for rash and negligent driving the offending vehicle. On this accident, on claim being preferred by the dependant of the deceased, the learned tribunal granted compensation indicated supra to such dependants as claimants. Being aggrieved with the quantum of compensation and not granting recovery right thereof from the owner of the offending vehicle by the impugned judgment, the insurer has preferred this appeal.

In the course of hearing, Mr. Subrat Satpathy, learned counsel for the Appellant by drawing attention of the Court to the finding recorded by the learned tribunal at paragraph 18 submits that although the claimants-respondents have not filed the route permit of the offending vehicle, but the learned tribunal has erroneously considered that the claimants have filed route permit and after recording so, the learned tribunal proceeded to observe that there is no violation of policy conditions by the insured, since the offending vehicle was validly registered and insured with the appellant covering the date of accident with its driver having valid driving license. Further, Mr. Satpathy submits that the insurer has in fact filed an additional written statement together with information obtained under RTI Act to suggest that the offending vehicle was not having valid routes permit at the relevant time of accident and thereby, the owner of the offending vehicle having willfully breached the policy conditions, the insurer is not liable to indemnify him and at best, the insurer would liable to pay the compensation with recovery right thereof from the insured, but the learned tribunal has not at all granted any right to recovery of compensation and thereby, the tribunal has not appreciated the evidence in proper prospective. Further, Mr. Satpathy seriously assails the quantum of compensation for not taking into account the relevant factors while computing compensation for the claimants. Accordingly, Mr. Satpathy prays to modify the impugned judgment by reducing the compensation with right to recovery thereof from R-3.

After having considered the rival submission upon perusal of record, the two questions arise for consideration in this appeal are the right of recovery and the quantum of compensation. Adverting to the 1^st question of right to recovery, it is emphasized that the insurer has not at all adduced any evidence to support its claim for right to recovery, however, the insurer has claimed to have pleaded in its additional written statement that the offending vehicle in question was not having any route permit and to that effect, the insurer claims support from an information obtained under RTI Act, but the same document has never seen the light of the day as neither the said information obtained under RTI is exhibited in evidence nor has any application been filed by the insurer to exhibit such information. Additionally, no oral evidence has been adduced by the insurer to support such claim. No doubt, the seizure list under Ext. 3 to 5 do not indicate about seizure of route permit, but merely because the seizure lists do not contain the seizure of route permit, it would not ipso facto establish the plea of the insurer that the offending vehicle was not having any valid route permit for plying on the road. Law on this point is very clear that unless the fact is pleaded and established by way of evidence, the same cannot be acted upon by the Court and it is, therefore, a clear case of insurer not having any evidence to support its claim. On the contrary, the learned tribunal in paragraph 18 of the impugned judgment has considered the challenge of the insurer for right to recovery by observing inter-alia as under:-

In view of the aforesaid facts and on consideration of the materials placed on record together with the re-appreciation evidence on record and in absence of any evidence contrary to the finding of the learned tribunal for the insured not having violated the policy conditions, this Court does concur the finding of the learned tribunal and accordingly, holds that the insurer has not proved the violation of terms and conditions of policy by the insured-cum-R3.

On coming back to the next challenge of the insurer-appellant as to the quantum of compensation, it is considered apposite to reiterate that the learned counsel for the claimants has agreed for reduction of small amount. In the situation and on negotiation as well as discussion with the learned counsel for the parties with regard to quantifying the compensation, this Court proposes a sum of Rs. 32 Lakhs along with 6 % interest w.e.f the date of filing of the claim towards full and final settlement of the case, and seeks response of the learned counsel for the parties, to which Mr. Debasish Patnaik, learned counsel appearing for the R1 & R2 by filing a memo agrees and accepts the proposal, whereas Mr. Subrat Satapathy, learned counsel for the insurer leaves it to the discretion of this Court.

In the aforesaid facts and situation and taking into account the law laid down by Apex court in Taslim Parvin & Another vrs. (Smt.) Usha Devi & Another; 2018(2) TAC 22 (SC), since the claimants-respondent Nos. 1 & 2 agrees to the proposal of the Court through their counsel and the counsel for the appellant-insurer without disputing to such proposal leaves it to the discretion of the Court, it is considered that interest of justice would be best served, if the compensation amount is reduced to Rs. 32,00,000/-together with interest @ 6% per annum w.e.f. the date of filing of the claim application i.e. 14.03.2022 till its realization which shall be paid by the insurer to the claimants-(R-1 & 2).

In the result, the appeal is accordingly disposed of with modification of compensation amount to Rs. 32,00,000/- together with interest @ 6% per annum w.e.f. the date of filing of the claim application i.e. 14.03.2022 till its realization and this Court accordingly directs the insurance company to pay the modified compensation within eight weeks hence. In case of deposit of the modified compensation, the same shall be disbursed to the claimant-respondents proportionately in terms of the award and the statutory deposit together with the accrued interest thereon be refunded back on receipt of proof of deposit of modified compensation by the Appellant before the learned Tribunal.