DIVISIONAL MANAGER Vs. SARBESWAR BARAL

JUDGEMENT

(1.) THE appellant -insurance company has filed this appeal assailing the judgment dated 30 -3 -2012 passed by the learned 5th M.A.C.T. Khurda in M.A.C.T. Misc. Case No. 2 of 2008 awarding compensation of Rs. 3,84,500/ - with simple interest @ 6% pendent lite and future from the date of filing of the claim petition, i.e., 21 -2 -2008 till the date of actual payment. The epitome of the facts, in short, is that respondent Nos. 1 to 5 as claimants filed an application under Section 166 of the Motor Vehicles Act in the Court below claiming for compensation of Rs. 4,50,000/ - on account of death of Tuna @ Ananta Baral in a vehicular accident. It is stated that on 26 -12 -2007 at about 5.30 a.m. while the deceased was proceeding towards Niarakarpur Railway Station from Padampur by walking on the left side morrum flank of the road at Railway gate which consents to Jagannath Road, the offending tractor bearing registration No. O.R. 25 -A -1079 and O.R. -25 -A -1080 (Tractor and Trolley) came from Rameswar side facing towards Lendu side, i.e., from behind the deceased in a rash and negligent manner at a high speed and dashed against the deceased, as a result, the deceased sustained severe injuries all over his body. Immediately after the accident, the local people took the deceased to District Head Quarters Hospital, Khurda and thereafter he was shifted to S.C.B. Medical College and Hospital, Cuttack and was admitted as an indoor patient to Neuro Surgery Department of S.C.B. Medical Cuttack where he succumbed to injuries on 28 -12 -2007. Thereafter, Mangalabag Police Station registered a case bearing U.D. Case No. 1281 dated 28 -12 -2007 and the post -mortem examination was conducted on 29 -12 -2007. The informant Bijay Kumar Paikray, who was working as a Police Constable at Nirakarpur Out Post lodged the F.I.R. that while he was performing his duty, the offending vehicle came from Rameswar side in a most high speed and near Nirakarpur Railway gate dashed against the deceased, therefore the deceased sustained bodily injuries, which ultimately led to his death. Accordingly, Jankia Police after investigation has submitted charge -sheet in G.R. Case No. 1344 of 2007 under Sections 279/338/304 -A. I.P.C. against the driver of the offending vehicle. It is stated that the deceased Tuna @ Ananta Baral was about 20 years of age being a bachelor and working as a mason and getting Rs. 3600/ - per month out of which he was contributing Rs. 2000/ - per month for the maintenance of his father and sister. It is further stated that the deceased was the only son of respondent No. 1 and was maintaining the family. Accordingly, they claimed compensation of Rs. 4,50,000/ - alongwith interest.

(2.) PURSUANT to the notice, respondent No. 6, the owner of the vehicle, who was opposite party No. 1 in the Court below, entered appearance and filed written statement, but did not choose to contest the claim proceeding when the same was taken up for hearing. Therefore, he was set ex parte. The present appellant -insurance company, being opposite party No. 2 appeared and filed written statement and contested the claim of the claimants -respondents. It is specifically stated in the written statement that at the material time of accident the deceased was travelling as an unauthorized passenger in the offending vehicle by sitting near the driver seat and on the way he suddenly fell down at the railway gate and was run over by the wheel of the tractor. It was further pleaded that the tractor and trolley was insured under a "Farmer's Package Policy" and except the driver no other persons were covered under the policy of insurance issued by it and as per the sitting capacity 'one' has been mentioned in the R.C. Book of the alleged offending tractor trailer and except the driver no other person was permitted to sit in the said vehicle. It is further stated that though the offending vehicle was insured under the 'farmer's package policy' exclusively to be used for agricultural purpose but at the material time of accident, the same was transporting metals in gross violation of the policy condition. Therefore, the claimants are not entitled to any compensation for death of the deceased.

(3.) ON consideration of the materials available on record, the learned Tribunal has come to a definite finding that on 26 -12 -2007 at about 5.30 p.m. the accident took place due to rash and negligent driving of the driver of the offending vehicle and in such accident Tuna @ Ananta Baral had died and accordingly compensation has been determined at Rs. 3,84,500/ - which shall carry simple interest @ 6% pendent lite and future from the date of filing of petition, i.e., 21 -2 -2008 till the date of actual payment. However, the learned Tribunal granted liberty to the insurance company to recover the amount from the owner of the offending vehicle, if it is recoverable in accordance with law. Assailing the said judgment, appellant -insurance company has preferred this appeal.