MACA Nos.445 & 298 of 2020

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IN THE HIGH COURT OF ORISSA AT CUTTACK

MACA No.445 of 2020 & MACA No.298 of 2020

(From the judgment dated 22^nd January, 2020 passed by learned 1^st

M.A.C.T., Kendrapara in M.A.C. Case No.133 of 2015)

In MACA No.445 of 2020

Manager, M/s.Royal Sundaram

Alliance Insurance Company

Limited

….

Appellant

-versus-

Langa Majhi and others

….

Respondents

Advocate(s) appeared in this case:-

For Appellant

: Mr. A.A. Khan, Advocate

For Respondents

: Mr. K.C. Nayak, Advocate

For Respondent Nos.1 to 3

In MACA No.298 of 2020

Langu Majhi and others

….

Appellants

-versus-

Bimal Charan Sahoo and another

….

Respondents

Advocate(s) appeared in this case:-

For Appellants

: Mr. K.C. Nayak, Advocate

For Respondents

: Mr. A.A. Khan, Advocate

For Respondent No.2

MACA Nos.445 & 298 of 2020

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CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

7^th February, 2023

B.P. Routray, J.

1.

The notice on Respondent No.4 in MACA No.445 of 2020 is

treated sufficient in view of the Office note.

2.

It is submitted that during pendency of the appeals Claimant

No.1, namely, Langa Majhi, who is Respondent No.1 in MACA

No.445 of 2020 and Appellant No.1 in MACA No.298 of 2020, died

on 10.2.2021 and all other claimants being on record, no substitution is

required to be made in respect of the deceased. Accordingly, his name

is deleted from both the appeals.

3.

Heard Mr. A.A. Khan, learned counsel for the insurer and Mr.

K.C. Nayak, learned counsel for the claimants.

4.

Both the appeals being arise out of the same judgment dated

22.01.2020 of learned 1^st MACT, Kendrapara in M.A.C. Case No.133

of 2015 wherein compensation to the tune of Rs.5,05,000/- has been

granted along with interest @6% per annum to the claimants from the

MACA Nos.445 & 298 of 2020

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date of filing of the claim application, i.e. 24.12.2015, are heard

together and disposed of by this common judgment.

5.

Mr. Khan, learned counsel submits on behalf of the insurer that

the deceased was a gratuitous passenger in respect of goods carrying

vehicle and secondly, the owner himself was driving the vehicle at the

time of accident without any valid driving license. Therefore it is

submitted by Mr. Khan that the insurer is not liable to indemnify the

compensation amount.

6.

MACA No.298 of 2020 has been filed by the claimants praying

for enhancement of the compensation amount on the ground of non-

addition of future prospects to the income of the deceased.

7.

It is seen that as per the claimants, the deceased was watching a

meeting by standing on the road side when the offending vehicle, i.e.

Mini Truck bearing Registration No.OR-21-E-4356 ran over him being

driven in a rash and negligent manner.

8.

But it is the case of the insurance company, based on the FIR

story, that the deceased was travelling in the offending Mini Truck at

the time of accident which was capsized and 20 persons sustained

MACA Nos.445 & 298 of 2020

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injuries due to the accident. The name of the driver was Bimal Charan

Sahoo as per the FIR, who is the admitted owner of the offending

vehicle. Accordingly upon completion of investigation, the Police

submitted charge-sheet against said owner-cum-accused driver for

commission of offences under Sections 279/337/338/304-A, I.P.C.

Thus it is contended by the insurer that the offending vehicle was a

goods carriage vehicle and the deceased was an occupant in the same

as a gratuitous passenger.

9.

Learned Tribunal has turned down such contention of the insurer

by relying on the oral evidence adduced from the side of the claimants.

It is seen from the oral evidence of P.W.1 and 2 that the accident took

place when the deceased was standing by the side of N.H.5-A, i.e.

Paradeep-Duburi Express High Way. Amongst t