Orissa High Court
Divisional Manager, National ... vs Kalilata Mallik And Ors. on 19 January, 1996
Equivalent citations: 1997ACJ1024A
JUDGMENT P.C. Naik, J.
1. Aggrieved by the award holding it liable to pay the compensation, the insurer has filed this appeal.
2. The claimant No. 1 is the widow and the claimant No. 2 is the mother of the deceased Kailash Mallik who died in a vehicular accident on 11.2.1986. According to the claimants, the deceased was travelling in the offending vehicle as the owner of goods, namely, 5 bags of dry fish and was killed when the truck met with an accident. Alleging that the accident was due to rashness and negligence of the truck driver, the claimants prayed for compensation from the owner and the insurer of the truck. The owner of the truck, however, did not appear and was proceeded ex parte. The insurer entered appearance and denied its liability.
3. Three witnesses were examined on behalf of the claimants and certain documents in support of their claim were also filed. On a finding that the accident was due to rashness and negligence of the truck driver, the Tribunal held that the claimants are entitled to compensation. The compensation was assessed at Rs. 60,000/- and in view of the insurance policy, the amount was directed to be paid by the insurer. Hence, this appeal.
4. Though a number of contentions have been advanced on behalf of the appellant on merits they cannot be considered in view of the specific provision contained in Section 96(2) of the Motor Vehicles Act and the Full Bench decision of this Court in the case of National Insurance Co. Ltd. v. Magikhia Das 1976 ACJ 239 (Orissa). The only question which requires consideration is whether, in view of the finding that the deceased was travelling in a truck as the owner of goods, liability was wrongly fastened on the insurer.
5. In the case of New India Assurance Co. Ltd. v. Kanchan Bewa 1994 ACJ 138 (Orissa), it has been held that the insurer cannot be held liable to indemnify an owner of goods vehicle for the death of persons who were travelling in the goods vehicle hired by them. The fact that the deceased was travelling with 5 bags of dry fish in the truck is not disputed. Indeed PW 1, PW 2 and PW 3 admit this fact. In his cross-examination, PW 2 admitted that the truck in which the deceased was carrying dry fish was, in fact, hired by a resident of Sabana for transporting stones. That the truck was loaded with stones is also admitted by PW 4. Hence, in this backdrop it has to be accepted that the deceased was travelling with his goods in a goods vehicle which was hired by some other person and was not travelling in that vehicle as an employee of the owner of the vehicle. Mr. Jena on behalf of the owner refers to a judgment of Madhya Pradesh High Court reported in 1994 (1) TAC 144 in which a contrary view is expressed. However, a contrary view of the Madhya Pradesh High Court cannot be of any assistance to the owner. Mr. Jena also submitted that in absence of a specific plea, the contention of the insurer that the deceased was travelling in a goods vehicle as a passenger along with his goods, ought not be accepted. But admittedly in this case not only the claimants but also their witnesses state that the deceased was travelling in the goods vehicle with 5 bags of dry fish. Hence, failure to raise this specific plea cannot be fatal to this appeal.
6. It was next contended by Mr. Jena that as the policy was not filed by the insurer, it cannot contend that the risk was not covered by the policy. This plea cannot also be accepted. The original policy remains in the custody of the owner and nothing prevented him from placing it on record in this case. The fact that he has not filed the original policy nor has taken the plea that such a liability was covered, indicates that this particular risk was not covered for had such a risk been covered, he would certainly have filed the policy to escape liability. No doubt a party stands or fails on the basis of the case pleaded by it, but if on the admitted facts that are on record, a party is able to make out or establish its case, it cannot be denied an opportunity to do so.
7. The learned Counsel for claimant-respondent Nos. 1 and 2 contended that the compensation awarded is low and needs to be enhanced. However, in absence of any appeal by the claimants, the quantum fixed by the Tribunal has to be taken as proper. It is also contended that an opportunity to file a cross-objection under Order XLI, Rule 33, Civil Procedure Code should be granted. This contention cannot also be accepted because liability cannot be directly saddled on the insurer. In order to make the insurer liable, liability has first to be saddled on the owner. This is not possible in an insurer's appeal. Therefore, a cross-objection will not be maintainable in a situation of this type where the appeal is by the insurer.
8. For the reasons aforesaid, the appeal is allowed and the award to the extent it makes the insurer liable, is set aside and, it is held that the entire award is to be satisfied by the owner of the vehicle. Under the circumstances, the amount deposited in terms of Section 173 of the Motor Vehicles Act, 1988 together with accrued interest is to be refunded to the insurer-appellant. There shall be no order as to costs.