ORIENTAL INSURANCE CO LTD Vs. SAKTI KUMAR MOHANTY

JUDGEMENT

(1.) This is an appeal under Section 110 -D of Motor Vehicles Act, 1939, filed by the appellant, insurance company, against the award passed by the 4th Motor Accidents Claims Tribunal, Puri.

(2.) THE applicant was injured in an accident which took place on 26.2.1982 on the road leading from Rasulgarh to Vani Vihar. As a result of the accident, the right leg of the applicant was fractured and did not join and ultimately he became unable to resume his normal life. He claimed compensation of Rs. 1,00,000/ - from the owner of the vehicle as the driver of the truck which caused the accident was negligent according to the claimant. The appellant being the insurer of the truck was impleaded as a party. The Claims Tribunal allowed compensation of Rs. 80,000/ - with interest at the rate of 12 per cent from the date of filing of the claim petition, i.e., 21.8.1982. The Tribunal further directed that if the amount is not paid within 3 months from the date of the award, interest shall be chargeable at the rate of 15 per cent per annum from 20.5.1988. Since the maximum liability of the insurer as per the policy was Rs. 50,000/ -, the present appellant was made liable to pay Rs. 50,000/ - to the claimant and the balance amount was directed to be paid by the owner of the vehicle. The insurance company has preferred this appeal alleging that the award is not in accordance with law and the insurance company has no liability at all to pay any part of the compensation.

(3.) MR . Mohanty, the learned counsel for the appellant, has strenuously urged mainly two points for consideration. According to him, on the admitted facts and circumstances as disclosed in the evidence the accident cannot be said to have been caused due to the negligence of the driver of the truck alone. According to him, the applicant who was moving on a motor cycle behind the truck has also contributed for the accident. In that view of the matter his submission is that the Tribunal should have awarded compensation in proportion to the negligence of the driver of the vehicle. His next contention is that the doctor who examined the gravity of the injuries sustained by the applicant was not a specialist in orthopaedics for which reason his evidence should not have been relied upon by the Tribunal. According to him, the X -ray photograph would indicate that the fracture sustained by the claimant was not so serious and if the bones did not unite, it must be due to the negligence on the part of the doctor who treated the applicant and not due to any lapse on the part of the owner or the insurance company. I would, therefore, proceed to examine the merits of the aforesaid contentions.