NATIONAL INSURANCE CO LTD Vs. ANADI CHARAN SAHU

JUDGEMENT

(1.) This appeal is directed against the judgment/award dated 15.1.2002 passed by the learned Additional District Judge-cum-Third M.A.C.T., Jajpur in M.A.C. Case No. 14 of 2000.

(2.) The case of the claimants is that on 27.12.1999 at about 5 p.m. the deceased was going on the left side of the road towards Binjarpur. Near Kapasi Chhak the offending vehicle bearing registration No. OR 05-B 6784 came in a high speed and ran over the deceased from back side, as a result of which the deceased sustained severe injuries on his person. Thereafter, the deceased was shifted to Jajpur Government Hospital for treatment, but ultimately he succumbed to the injuries. It is specifically alleged that accident took place due to rash and negligent driving of offending vehicle. At the time of accident it is claimed that the deceased was working as salesman in a private company at Bhubneswar and was aged about 25 years and was earning Rs. 3,500 per month. Claimants claiming to be dependants of the deceased claimed compensation of Rs. 4,80,000. The owner as well as the insurance company contested the case by filing written statements separately. The Tribunal framed four issues and found that the offending vehicle was being driven in a rash and negligent manner, as a result of which the accident took place and the deceased died due to injuries sustained in course of the said accident. The Tribunal further found that at the time of accident the vehicle was covered with a valid insurance policy. In the absence of any evidence with regard to employment and income of the deceased prior to the accident, the Tribunal calculated notional income at Rs. 15,000 per annum and after deducting 1/3rd compensation, directed payment of compensation of Rs. 1,70,000.

(3.) Learned counsel appearing for the appellant challenged the judgment/award on the ground that the policy had been cancelled from the inception and, therefore, the insurance company was not liable to pay compensation. Learned counsel also challenged the judgment on the ground that the driver of the offending vehicle was in possession of fake driving licence and, therefore, the insurance company should be permitted to recover the award amount from the owner in case it is found liable for payment of compensation. The learned counsel for respondents, on the other hand, submitted that so far as cancellation of policy is concerned, there was neither any specific pleading nor an issue to that effect has been framed. In absence of an issue no evidence was also led and, therefore, such a question cannot be raised before this court in appeal for the first time. So far as validity of the licence is concerned, it was contended by the learned counsel for the claimants-respondents that the seizure list in the G.R. case indicate that the driving licence stood in the name of the driver who was driving the offending vehicle and, therefore, such a question cannot be raised in appeal.