Orissa High Court
M/S. Future Generalia India Insurance ... vs Jayashree Mallick & Anr on 24 August, 2023
Author: B.P.Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 12-Sep-2023 10:51:05
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.92 of 2022
(From the judgment dated 2nd December, 2021 passed by the 2nd MACT,
Cuttack in Misc.Case No.374 of 2016)
M/S. Future Generalia India Insurance Co.Ltd ...... Appellant
Versus
Jayashree Mallick & Anr. ...... Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr. A.A.Khan, Advocate
For Respondents : Mr. P.K.Mishra, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
24th August, 2023 B.P.Routray, J.
1. Heard Mr.Khan, learned counsel for the Appellant & Mr.Mishra, learned counsel for the Respondents.
2. Present appeal by the Insurer is directed against judgment dated 2nd December, 2021 of 2nd MACT, Cuttack passed in Misc. Case No.374 of 2016, wherein compensation to the tune of Rs.39,70,352/- has been granted along with interest @7% per annum with effect from the date Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2023 10:51:05 of filing of the claim application on account of death of the deceased in the motor-vehicular accident dated 21st May, 2016.
3. The case of the Claimants is that the offending Tata Hywa bearing registration No.OD-21-1701 suddenly stopped in front of the deceased, who was going in his motor-cycle, on the National Highway near Ghasipura resulting the accident. The deceased dashed with the iron plate penetrated from backside of the Hywa resulting his death.
4. Mr.Khan submits that CPM policy (Contractors Plant and Machinery) policy was taken in respect of the offending Tata Hywa and therefore, the liability of the insurer is not extended to cover the risk of third party as a motor-vehicle. In this regard he relies on the copy of policy and the terms thereon under Ext-B to B/4.
5. Mr.Mishra, learned counsel for the Claimants on the other hand submits that total premium of Rs.25,163/- was received by the Insurance Company and as per the policy conditions, it has coverage of third party liability specifically mentioned in the policy itself. Therefore, the Insurer cannot escape from its liability to indemnify the compensation amount.
6. Perusal of Ext.B reveals that, third party liability (without any limit) has been specifically covered as per terms & conditions of the policy and the area of operation is extended all over Odisha. Receipt of Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2023 10:51:05 total premium of Rs.25,163/- from the insured is also admitted on the face of Ext.B. The accident took place on the National Highway when the deceased dashed to the iron plate fixed at the back side of the Hywa.
7. Mr. Khan relies on the decision of this Court dated 23rd August 2022 rendered in MACA No.815 of 2020 to contend that the risk coverage in respect of CPM policy cannot be extended to cover the risk provided under the MV Act in respect of a third party. It needs to be mentioned here that in said case cited by Mr.Khan, the third party premium due was in respect of damages up to the extent of Rs.1,25,000/- and the accident took place in the premises of the work- site. Therefore, said earlier decision of this Court is found distinguishable on the facts of the present case.
8. In the case at hand, it is admitted that the offending Tata Hywa was running on the National Highway beyond its movement in the work-site. It is true that a CPM policy is not the same statutory policy according to the provisions contained in Section 147 of the MV Act. But in view of the peculiar facts of the case at hand that there is specific mention of coverage of third party liability to unlimited extent and the area of operation is all over Odisha, the contention to exclude third party risk coverage cannot be allowed to sustain in favour of the Insurer to deny the liability. This Court in judgment dated 27th February, Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2023 10:51:05 2023 passed in MACA No. 388 of 2019 and batch have clarified in this regard. The same is reproduced here with:-
Undoubtedly, the copy of certificate of the insurance, as produced in course of hearing by Mr. B. Panigrahi, learned counsel for the owner and not disputed by the other parties, speaks that it is an equipment having Chasis No.396522CTZ204988/Mixer Sl. No.31458, Engine No.60C62463471 with Registration No.AP-28- W-9080. No dispute has been raised with regard to period of policy covering the date of accident. At Column No.4, it is mentioned that the risk coverage includes damages to 3rd party injuries or property during movement between different places of sites and vice versa, upto Rs.50,00,000/- per accident or up-to rupees one crore in one year.
8. As per the definition contained at Rule 2 (cab) of the Central Motor Vehicles Rules, 1989, "construction equipment vehicle"
means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, self-propelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fork lift truck, selfloading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off" or "on and off" highway capabilities." From the aforesaid definition, it is clear that a self-loaded concrete mixer or any other construction equipment vehicle or combination thereof comes within the category of construction equipment vehicle. Therefore, the word 'equipment' spelt in the certificate of insurance denotes the equipment as construction equipment vehicle. As per the explanation attached to Rule 2(cab) of the Central Motor Vehicles Rules, 1989, a construction equipment vehicle may be driven on road incidental to the main off-highway function for a short duration only with limited speed. The explanation reads as follows:
"Explanation.--A construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not include other purely off- highway construction equipment vehicle designed and Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2023 10:51:05 adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power."
9. It is next contended by Mr.Khan that since the deceased dashed the offending Hywa at back side, the negligence on the part of the driver of the Hyva is not established. This part of the contention has been discussed by the Tribunal elaborately in the impugned judgment. The learned Tribunal upon discussion has come to the finding that parking condition of the offending Hywa is not believable in view of the evidences adduced on record. Having gone through the evidence of P.W.2, who is the eye witness of the occurrence, nothing is found to disbelieve him. On the other hand, the evidence O.P.W.2 is of lesser credibility, he being the accused driver of the offending Hywa and having interest in the issue. Therefore, the finding of the Tribunal in this regard to attribute negligence on the driver of offending Hywa is confirmed.
10. In view of the discussions made above, the Insurer is held liable to indemnify the compensation amount for the death of the deceased in the accident. No ground is seen in favour of the Insurer to reduce the compensation amount in their favour. However, the rate of interest is reduced to 6%.
Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2023 10:51:05
11. In the result, the appeal is disposed of with a direction to the Insurer-Appellant to deposit entire compensation of Rs.39,70,352/- (Thirty nine lakhs seventy thousand three hundred fifty two) along with interest @ 6% per annum with effect from the date of filing of the claim application within a period of two months from today; where-after the same shall be disbursed in favour of the Claimants on such terms and proportion to be fixed by the Tribunal.
12. The statutory deposit made by the Appellant with accrued interest thereon shall be refunded to him on proper application and on production of proof of deposit of the award amount before the learned Tribunal.
13. Urgent certified copy of this order be granted on proper application.
( B.P. Routray) Judge S.Das Page 6 of 6