ORIENTAL INSURANCE COMPANY LIMITED Vs. BANAMALI LENKA

JUDGEMENT

(1.) In all these three appeals, the Oriental Insurance Company Ltd. is the appellant against the award of compensation passed by the Motor Accident Claims Tribunal, Mayurbhanj in Claim Misc. Case Nos. 45, 49 and 51 of 1985. All the appeals are taken up together and heard analogously since they arise out of a common judgment and common questions of law are involved.

(2.) The short facts of the claimants' case was that the Van bearing registration No. ORS 5279 shuttled between the weekly markets and goods along with its passengers are carried in the vehicle. On 13-9-1985 when the claimants in Misc. Case Nos. 49 and 51 of 1985 and the deceased Prasanna Kumar Behera for whose death claim application No. 45 of 1985 has been filed, were travelling in the said van along with their merchandise, near Dantiamuhan crossing, due to rash and negligent driving of the driver, the vehicle went off the road and dashed against the road side tree causing injury to Bharat Sahu, claimant in Misc. Case No. 49 of 1985, and Banarasi Lanke, claimant in Misc. Case No. 51 of 1985 and Prasanna Kumar Behera died at the spot. It is claimed that deceased Prasanna had been carrying on business in purchase and sale of tobacco from which, he used to have a monthly income of Rs. 1,200/-. He was aged 38 years at the time of accident and the legal representatives have laid a claim of Rs. 1,25,000/- in Claim Misc. Case No. 45 of 1985. The claimant in Misc. Case No. 49 of 1985, Bharat Sahu is aged 60 years at the time of accident who was carrying on business of coconuts and earning an income of Rs. 500/- per month. He sustained a fracture of the wrist and as such had undergone treatment and his hand was plastured for which he is unable to pursue his usual avocation and even he was not in a position to perform his normal work for about three months. Accordingly, his claim is to the tune of Rs. 15,000/-. Banamali, the claimant in Misc. Case No. 51 of 1985 claims that he was carrying on business and was earning an income of Rs. 1,100/- per month and there being a fracture on the right hand bone, he had to undergo treatment for the injuries he sustained in course of the accident and he was to be hospitalised at Baripada hospital from 13-9-1985 till 18-9-1985 and since he did not get desired result, he had to be shifted and treated at a Nursing Home at Cuttack from 18-9-1985 to 2-10-1985. Thus, his claim is Rs. 6,000/- towards treatment of the injury and a total claim of Rs. 36,000/- was made on all counts.

(3.) The owner of the vehicle in question Ranjit Patra (opp. party No.1) filed a written statement denying the negligence on the part of the driver of the Van and according to him, the accident was an inevitable one. Opposite party No. 3, the Insurance Company, the present appellant, in its written statement denied the accident and the claim and its liability in each of the claim petitions. In paragraph 9 of the written statement, a plea was taken that in spite of thorough search, the Insurance Policy in respect of the alleged vehicle bearing No. 5279 (Van) involved in the accident could not be traced out in absence of full and correct particulars with regard to insurance policy or certificate of insurance. It rather called upon the claimants to produce the insurance policy. Interestingly, at paragraph-16 of the written statement it appears that the Insurance Company called upon the owner (opp. party No. 1) to produce the driving licence of the driver, the route permit, fitness certificate, R. C. Book, failing which, to draw presumption that there is a statutory violation of the condition as contemplated under S. 96 (2) of the Motor Vehicles Act.