BRANCH MANAGER, ORIENTAL INSURANCE Vs. SAKUNTALA CHHOTRAY

JUDGEMENT

(1.) ALL these three Letters Patent Appeals arise out of a common judgment dated 15.3.2000 passed by a learned Single Judge of this Court in M.A. No. 821 of 1997 and M.A. No. 646 of 1998.

(2.) RESPONDENT Nos. 1 to 3 in A.H.O. Nos. 64 and 65 of 2000 and the Appellants in A.H.O. No. 121 of 2001 had filed M.A.C.T. Misc. Case No. 431/72 of 1993/91 before the Fourth Motor Accident Claims Tribunal, Puri claiming compensation to a tune of Rs. 6,27,000.00 alleging that deceased Bikram Chhotray and his wife along with the two children while proceeding on a motor cycle on 4.9.1999 parked the motor cycle on the left side of the road and proceeded a little ahead to answer call of nature. At that moment the offending bus dashed against the deceased couple causing their death at the spot. A single Claim Case was filed on account of death of two persons. Out of the claimants, claimant No.1 was the mother of deceased Bikram Chhotray and claimant Nos.2 and 3 were the minor daughter and son respectively. The owner of the offending bus though received notice did not contest the claim case. The Insurance Company filed its written statement baldly denying the claim. The Tribunal arrived at the conclusion that the accident had occurred due to negligent driving of the driver of the bus and taking into consideration various factors, awarded a compensation of Rs. 3,00,000.00. The claimants thereafter preferred Misc. Appeal No. 646 of 1998 before this Court claiming higher compensation; whereas the Insurance Company challenged the award before this Court by filing Misc. Appeal No. 821 of 1997. Both the said Misc. Appeals were heard together and were disposed of by the learned Single Judge by a common judgment. The learned Single Judge took into consideration the fact that deceased Biram Chhotrays monthly income was Rs. 3,000.00 and his monthly contribution to the family could not be less than Rs. 2,000.00, if not more. Therefore, applying multiplier '15 as the deceased was only thirty three years old and also taking the view that the mother and minor children of the deceased were also entitled to compensation towards loss of estate and funeral expenses, the learned Single Judge thought it just and proper to award a compensation of Rs. 4,00,00.00 in a conservative estimate. The learned Single Judge relying upon the provisions of Section 170 of the Motor Vehicles Act, held that as the Insurance Company had not taken the permission of the Court below it was not entitled to raise any factual contention. The submission of the Insurance Company that as the driver of the offending vehicle did not possess any driving licence, the Insurance Company was not liable to pay the compensation was considered by the learned Single Judge and it was held that in absence of any issue to that effect, it was not possible to delve into the same. The learned Single Judge directed that the entire compensation amount with interest thereon should be deposited by the Insurance Company in Court and the Tribunal was to re -determine the question regarding inter se liability of the Insurance Company vis -a -vis the owner of the bus by giving opportunity of hearing to the said parties. With the aforesaid direction both the Mis. Appeals were dismissed.

(3.) THE grievance of the Insurance Company is that the learned Single Judge committed an error in not arriving at the conclusion that the insurance Company was not liable to pay the compensation as the driver of the offending vehicle did not possess any driving alicence and thus there was a breach of the policy conditions. It was also submitted that he quantum of compensation awarded is high and excessive and the Tribunal as well as the learned Single Judge have not taken into consideration the negligence of the deceased.