Orissa High Court
Oriental Insurance Co. Ltd., Through ... vs Raghunath Srichandan And Ors. on 27 April, 2005
Equivalent citations: III(2006)ACC622, 101(2006)CLT409, 2005 A I H C 2861, (2006) 101 CUT LT 409, (2006) 3 ACC 622, (2006) 2 TAC 244, (2006) 4 CIVLJ 215
Author: M.M. Das
Bench: M.M. Das
JUDGMENT M.M. Das, J.
1. This appeal has been preferred by the Oriental Insurance Co. Ltd. against the judgment and Award dated 15.12.2001 passed in M.A.C.T. Case No. 777 of 1991 (167 of 1998) by the Fourth M.A.C.T., Puri.
2. Bereft of all unnecessary details, the facts reveal that on 15.7.1991 at about 8.30 A.M. when the deceased was travelling in a Matador bearing registration number OSF 7577 from Khurda to Jankia, the offending Truck bearing registration number AP-16 T-1717 coming from the opposite direction, while trying to overtake another Truck came to the right side of the road and dashed against the said Matador in which the deceased was a passenger. As a consequence of the accident, seven persons died including the deceased. It appears from the record that after the accident, the local people salvaged the deceased from inside the Matador which was severely damaged and as the deceased was then alive, he was then taken to the Hospital at Khurda and thereafter referred to the S.C.B. Medical College and Hospital Cuttack on the same day. He, thereafter , succumbed to the injuries and autopsy was conducted on 16.7.1991. A police case was registered bearing Jankia P.S. Case No. 102 of 1991 from which it appears that Final Report was filed stating that the accident took place due to the negligence on the part of the driver of the Matador who died in the accident. The parents of the deceased filed a case claiming compensation of Rs. 2,50,000/-. The appellant-insurer filed a written statement admitting that at the relevant time, the offending Truck was insured with the appellant. However, it was stated in the written statement that from the police papers it would reveal that the driver of the Matador was responsible for the accident.
3. After repeated notice to the owner of the truck, he appeared before the Tribunal below and filed a written statement on 9.9.1998. In the said written statement, he admitted the fact of accident but pleaded that since the driver of the offending truck was having a valid driving licence and the vehicle was validly insured with the appellants, the liability, if any, will be payable by the appellant-insurer.
4. Mr. Roy, Learned Counsel for the appellant vehemently argued that the impugned award should be interfered with on the ground that the Tribunal below has not given any finding with regard to the negligence on the part of the driver of the Matador and further, the amount of compensation awarded and the rate of interest as directed to be paid is exorbitantly high. He relied upon a decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay v. Sri Laxman lyer and Anr. 2003 (11-12) SBR 554 in support of the contention that it was incumbent upon the Tribunal to find out the extent of the contributory negligence on the part of the driver of the Matador and apportionment of the compensation between both the owners of the truck and matador. He further contended that the claimants having not impleaded the owner and insurer of the matador as parties to the case, the claim application was liable to be dismissed for non-joinder of necessary party. His further contention is that the compensation awarded being exorbitantly high, the quantum of compensation should be interfered with, even at the instance of the insurer.
5. Mr. P.C. Patnaik, Learned Counsel appearing for the claimants, on the contrary, relying upon several decisions, contended that there being no specific pleading with regard to contributory negligence either on behalf of the appellant-insurer or the owner inasmuch as neither the appellant-insurer nor the owner of the truck having adduced any evidence before the Tribunal, it is not open for the appellant to take a plea for the first time in this appeal with regard to contributory negligence. He further submitted that even though the final report submitted by the police discloses that negligence of the driver of the Matador was the cause for the accident and the final report was submitted since the said driver died in the accident, it is well settled in law that in a case for compensation under the M.V. Act, the FIR, charge-sheet or other police papers are not substantive evidence and are not to be accepted in view of the oral evidence adduced by the claimants which is contrary to what has been stated in the police papers . For the above proposition, reliance was placed upon various decisions of this Court such as, 83 (1997) CLT 506, Anita Jena and Ors. v. Sarat Chandra Pattnaik and Anr. 2004(1) TAG 670 (Orissa), Oriental Insurance Co. Ltd., Berhampurv v. Bhaija Pradhan and Ors. and 1994 (I) TAG 475, National Insurance Co. Ltd. v. Asha Lata Rout and Ors.
6. In reply to the contentions of the Learned Counsel for the appellant that since there is a prima facie material that the accident occurred due to contributory negligence of the driver of the truck as well as the Matador unless the owner and insurer of the matador are impleaded as parties, the application for compensation will not be maintainable, Mr. Pattnaik submitted that such objection of non-impletion of necessary party can only be taken at the first instance and such an objection having not been raised by the appellant-insurer before the Tribunal below cannot be raised for the first time, in this appeal. He further contended that even if the owner and insurer of the matador are not impleaded as parties, it is open for the claimants to claim compensation against any one of the joint tort fisher. It is well settled that objection to non-impletion of necessary party can only be taken at the first instance and as admittedly no such question was raised by the insurer before the Tribunal, it is not open for the insurer to take such an objection for the first time in appeal. In the case of the Divisional Manager Oriental Insurance Co. Ltd., Cuttack Divisional Officer V Jasoda Mahanta and Ors. AIR 1996 Orissa 120, this Court has held thus :
The next contention raised on behalf of the appellant is that when admittedly two vehicles were involved in the accident the insurer of one of the vehicles cannot be made liable to pay the entire compensation because the other tort feasor is also equally liable. The said question has been set at rest by this Court in its decision in New India Assurance Company Ltd. v. Ashok Kumar Acharya 1994 (I) Current Judicial Reports 293. Pointing out the difference between "contributory negligence" and "composite negligence" in paragraph 5 of the said judgment it has been held :
Where negligent acts of two or more-independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set by the general rules as to remoteness of damage to sue all or any one of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between these persons though in any case he cannot recover in the whole more than his whole damage.
Accordingly, the said contention of Mr. Sinha cannot be accepted.
The Supreme Court in the case of Municipal Corporation of Greater Bombay, (supra) held :
But in a case where there has been no contributory negligence on the part of the victim the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts. 15th Edn. P. 361).
7. Applying the above principle, since there is absolutely no allegation of contributory negligence on the part of the victim, the question of apportionment of compensation does not arise in the present case. From the impugned judgment, it appears that on' analysis of the evidence on record, the Tribunal has come to the conclusion that the accident took place solely due to rash and negligent driving of the driver of the offending truck which was insured by the appellant-insurer. I, therefore, repelling the contention raised by the Learned Counsel for the appellant, hold that there is no ground to interfere with the finding of the Tribunal that the appellant-insurer is liable to pay the compensation to the claimants.
8. Coming to the question of quantum of compensation and the rete of interest awarded, in the facts and circumstances of the case, I do not find that the said amount can be held to be exorbitantly high. For this reason , the amount of compensation and the rate of interest awarded by the Tribunal calls for no interference.
9. In the result, the appeal is dismissed, but in the circumstances, without costs.
10. The appellant is directed to deposit the entire amount of compensation with interest before the Tribunal within a period of six weeks from today. On such deposit being made, the said amount shall be disbursed in favour of the claimants in terms of the award.