HIGH COURT OF ORISSA: CUTTACK MACA No.439 of 2006 From a judgment dated 20th August, 2005 passed by the 2nd M.A.C.T. (SD), Berhampur in M.A.C. Case No.233/98 (904/97). -------- Divisional Manager, The Oriental Insurance Company Ltd., Berhampur, Ganjam …Appellant. -Versus- Jhumuri Parida & another …Respondents. For Appellant : M/s. G.P.Dutta, K.C.Nayak & M.K.Swain For Respondents : M/s. G.P.Mohanty, H.P.Mohanty & B.K.Mohanty (For R-1) ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 09.12.2011 B.N.MAHAPATRA, J. This MACT Appeal has been filed at the instance of the Insurance Company challenging the judgment dated 20.08.2006 passed by the learned 2nd Motor Accident Claims Tribunal (SD), Berhampur in M.A.C. No.233/98(904/97). 2. The facts and circumstances giving rise to this appeal is that on 22.08.1997 at about 6.30 P.M., the petitioner-respondent No.1 while going on the road connecting Aska-Khallikote, the offending Trekker bearing No.OR-07-A-3697 came in high speed and dashed against the petitioner as a result of which, she was thrown down and sustained fracture on her right leg and multiple injuries on her person. Thereafter, the petitioner was removed to MKCG Medical College & Hospital, Berhampur for her treatment. She was treated there as an indoor patient for about two months. Her grievance is that she has become permanently disabled and lost her future prospectus due to the accident. She has also spent a sum of Rs.30,000/- towards her treatment. Her further case was that the driver of the offending vehicle possessed a valid driving licence and the said vehicle was insured with opposite party No.2-Oriental Insurance Company Limited at the time of accident. Therefore, the Insurance Company is liable to pay compensation to her. With the above averments, she filed the claim petition claiming compensation of Rs.5,00,000/-. 3. The owner of the vehicle did not contest the case before the Tribunal and was set ex-parte. Opposite party-Insurance Company filed its written statement challenging the case of the petitioner and denied all the averments made in the claim petition. 4. Before the Tribunal, the petitioner examined three witnesses including Dr.D.K.Mohapatra and has filed nine documents which are marked as Exts.1 to 9. The opposite party-Insurance Company did not examine any witness, but filed three documents which are marked as Exts. A to C. 2 5. On the basis of the pleadings of the parties, the Tribunal framed four issues. After taking into consideration both oral and documentary evidence, the Tribunal came to the conclusion that the petitioner sustained injury in vehicular accident and the accident took place due to rash and negligent driving of the driver of the offending vehicle. The Tribunal has determined the amount of compensation at Rs.80,000/- and further held that respondent No.2-Oriental Insurance Company is liable to pay compensation to the petitioner. The learned Tribunal allowed the petition in part and proceeded ex-parte against opposite party No.1 imposing cost of Rs.2,000/- and directed opposite party No.2-Insurance Company to pay a sum of Rs.80,000/- to the petitioner along with interest at the rate of 8% per annum from the date of filing of the claim petition, i.e., 25.11.1997 till the date of realization. The Tribunal further directed that out of the above amount of compensation, a sum of Rs.65,000/- shall be kept in fixed deposit in the name of the petitioner in any Nationalized Bank with certain conditions. 6. Mr. G.P.Dutta, learned counsel appearing for the appellant- Insurance Company submitted that the amount of compensation allowed by the Tribunal is high and excessive. The learned Tribunal has committed wrong in holding that the Insurance Company is liable to pay compensation to the petitioner. The interest @ 8% per annum as awarded by the Tribunal appears to be at higher side. He further argued that the driver of the offending vehicle was authorized to drive light motor vehicle; therefore there 3 is a breach of condition of the contract and right of recovery of the amount of compensation from the owner of the offending vehicle should be given to the Insurance Company. 7. Mr.G.P.Mohanty, learned counsel appearing on behalf of the respondent No.1 submitted that the injured in the instant case is a girl and due to deformity of her right foot, there will be adverse effect on her future prospectus especially during the time of marriage. Therefore, the amount of compensation awarded by the learned Tribunal is at lower side. The rate of interest as awarded by the Tribunal is reasonable. Mr.Mohanty further submits that the accident took place on 22.08.1997 and the matter is lingering since then. Therefore, he requests to dispose of the appeal in the spirit of Lok Adalat to which Mr.G.P. Dutta, learned counsel for the Insurance Company has no serious objection. 8. After hearing learned counsel for both the parties, going through the impugned judgment and taking into account the nature of injuries sustained by the petitioner, this Court feels that Rs.60,000/- shall be the just compensation in the facts and circumstances of the case. 9. The prayer of Mr. Dutta to give right of recovery of the amount of compensation from the owner of the offending vehicle to the Insurance Company is not acceptable in view of the categorical finding of the learned Tribunal in this regard. The relevant portion of the finding of the Tribunal is given below:- 4 “12. Now coming to the liability to pay the compensation, Mr.Y. Rabindranath, learned counsel for the R.2 drawn my attention to the copy of D.L. marked Ext.B and submitted that the driver was authorized to drive L.M.V. i.e. class-IV vehicle, but was not authorized to drive any transport vehicle. It is found from copy of D.L. Ext.B as well as the registration certificate Ext.C that the driver was having valid D.L. covering the date of accident to drive class-IV vehicle that is L.M.V. There is no mention any where in Ext.B that the driver was not authorized to drive a trekker. Necessarily a trekker is a light motor vehicle and used as a transport vehicle. It has also been decided by our own High Court in the case of Oriental Insurance Co. Ltd. Vs. Rajani Parida and another reported in 98(2004) C.L.T., 175 that: “Absence of an endorsement in the licence to drive a transport vehicle in the instant case, does not amount to breach of any of the policy conditions and the appellant on that ground is not absolved from its liability to pay the awarded amount” It is needless to say that the offending vehicle was insured with R.2 covering the date of accident as is evident from Ext.A. Therefore, I have no hesitation to arrive at the conclusion that the argument advanced by the learned counsel for the R.2 is not tenable in the eye of law. Accordingly, it is concluded that the R.2-Oriental Insurance Co. Ltd. is liable to pay compensation to the petitioner. These two issues are accordingly answered in favour of the petitioner.” 10. In view of the above, the appellant-Insurance Company is liable to pay the amount of compensation of Rs.60,000/- along with 8% interest per annum. Hence, the Insurance Company is directed to deposit the said amount of compensation of Rs.60,000/- (rupees sixty thousand) along with interest at the rate of 8% per annum from the date of filing of the claim petition, i.e., 25.11.1997 till realization before the Tribunal within ten 5 weeks from today. On deposit of such amount, the learned Tribunal shall disburse the amount to the petitioner in the manner it has directed in its judgment. 11. On production of the receipt showing deposit of the award amount along with interest as indicated above, the Registrar (Judicial) shall return the statutory deposit along with interest accrued thereon to the Insurance Company. 12. The appeal is allowed in part with the above observations and direction. ……………………… B.N.Mahapatra,J Orissa High Court, Cuttack Dated 9th December, 2011/ss/ssd/skj 6