ORIENTAL INSURANCE COMPANY Vs. HARAPRIYA NAYAK

JUDGEMENT

(1.) THIS appeal though surfacially involves a a dispute relating to date of death of owner of a vehicle, because of seminally important aspects integrally connected with that issue, the learned counsel for the parties have pressed several points for consideration and have addressed us at length. In this background, it has become necessary to consider all the points raised.

(2.) THE factual backdrop necessary to be referred to for adjudication of the intricating questions which we shall deal infra is as follows ; An accident took place on 6-9-1988, wherein a vehicle bearing registration No. ORP 5510 was involved. The registered owner of the vehicle was Brajabandhu Senapati (hereinafter referred to as the 'owner/ insured')- One Govind Chandra Naik (hereinafter referred to as the "deceased') lost his life in the accident. His widow Harapriya and parents Bhikari Charan Naik and Musi Dei lodged a claim for compensation on 28-11-1988 claiming compensation of Rs. 3 lakhs Under Section 110-A of the Motor Vehicles Act, 1939 (in short, the 'Old Act'). According to them, the deceased was engaged as Manager of M/s. Bhubaneswar Udyog Private Limited and was getting Rs. 2,000/- per month. At about 1 p. m. on the fateful day the accident took place on the Sachivalaya Marg, Bhubaneswar when the deceased was travelling along with a friend in a Bajaj Scooter bearing registration No. ORK 8737. They had stopped on the left side of the road near Keshari Talkies, when the offending truck which was being driven in rash and negligent manner, came from the back-side, i. e., Rabindra Mandap side and ran over the pillion rider and subsequently on the deceased. The scooter was also dragged to a distance of about 20 to 30 yards. The pillion rider died at the spot and the deceased sustained severe injuries on his person. He was removed to Bhubaneswar Government Hospital for treatment, but finding his condition to be precarious his removal to S. C. B, Medical College Hospital, Cuttack was advised, Since the doctors of the said hospital were on strike, the deceased was admitted to Cuttack Nursing Home, where he succumbed to the injuries sustained, on 10-9-1988. As the doctors of S. C. B. Medical College Hospital were on strike, no post mortem could be conducted. But a certificate was issued by the Cuttack Nursing Home regarding the cause of death. The age of the widow was indicated to be 23 years, and that of the father to be 55 years ; but no age was given of the mother. A police case was instituted on 6-9-1989, which was numbered as P. S. No. 243 of Kharabela Police Station. Four witnesses were examined to further the claimants' case, before the Third Motor Accidents Claims Tribunal, Puri (in short, the 'Tribunal')- Entitlement of the claimants was assessed at Rs. 2,27,000/-by the Tribunal. It was held that the liability of the Oriental Insurance Company Limited (hereinafter referred to as the 'insurer' ) was Rs. 1, 50,000/ and the balance liability was that of the owner. An appeal was filed in this Court Under Section 173 of the Motor Vehicles Act, 1988 (in short, the 'Act')- Notice issued to Brajabandhu Senapati was returned with endorsement by postal authorities that Brajabandhu had expired. The notice sent through Court came back with endorsement made by the Process Server on 7-1-1992 to the effect that Brajabandhu had died 8 to 10 years back. When this matter was placed for orders, a motion was made by the insurer that the owner of the vehicle having died during pendency of the case before the Tribunal, and the claimants having not taken any step for substitution of the legal representatives of the deceased, appropriate orders were necessary to be passed. The insurer prayed for time to take steps in this regard, but by order dated 14-5-1992 it was directed that the necessity for substitution and the effect of non-substitution of the legal representatives of the deceased before the Tribunal shall be considered at the time of the appeal. The learned counsel for the claimants was directed to file an affidavit relating to the report of the process server that Brajabandhu had died 8 to 10 years back. When the matter was called on 6-7-1992, application was filed by the claimants for modification of the earlier order requiring the claimants to file affidavit regarding report of the process server. The prayer for modification of the order was not accepted but the effect of non-filing of the affidavit was directed to be considered at the time of hearing. An application was filed by the insurer to accept the death certificate indicating that Brajabandhu had died on 1-10-1982 at S. C. B. Medical College Hospital, Cuttack as additional evidence. An objection was filed by the claimants to the said petition. By order dated 20-1-1993, the question whether additional evidence is to be accepted was directed to be cosidered at the time of hearing of the appeal. Th8 learned Single Judge who disposed of the appeal held that there was no material to show that Brajabandhu had died in 1982 as claimed. He was insured on 6-9-1988, and it was not disputed by the insurer that the policy in question had been issued. The prayer to accept additional evidence was rejected. Reference was made to the counter affidavit filed by the claimants stating that alleged death did not relate to Brajabandhu. the owner, who was alive as the registration certificate still stody in his name. Accordingly, the appeal was dismissed. The cross appeal which was filed by the claimants for enhancement was also rejected.

(3.) THE learned counsel for the claimants on the other hand submitted that even if Brajabandhu was dead as claimed by the insurer. us liability to indemnify the claimants cannot be disputed. Since the insurer itself had issued the policy to a person who is claimed to be dead in 1982 its liability was absolute. Even if the claim that Brajabandhu died in 1982 is factually correct that is a matter between insurer and Brajabandhu, for which the claimants cannot be denied the indemnification by the insurer. The insured having not chosen to contest the appeal at the instance of the insurer questioning the quantum is not maintainable. There is no limitation on stipulating a higher rate of interest in case of non-payment within stipulated time since grant of interest Under Section 110-CC of the old Act is a discretionary matter. Even if the policy was taken after the accident had taken place as claimed (which according to him, is factually not correct) yet the policy operates from the midnight of the previous day and therefore, the policy covers the accident even though it was taken after the date of accident. In law the vehicle is required to be insured and not the person. Since in the instant case the vehicle was insured the death of Brajabandhu was inconsequential.