Decided on December 22,1988

Tathagata Satapathy Appellant


R.C.PATNAIK, J. - (1.) IN the afternoon at 3 -7 -1977, Tathagata, Satyabadi and Upendra Mohapatra proceeded from Baripada to Bangiriposi in a jeep bearing registration number DHA 1246. The vehicle was being driven by Tathagata. On the way, it collided with a truck bearing registration number ORM 1606 coming from the opposite direction. Satyabadi and Upendra died. The father of Upendra lodged a claim for Rs. 3,60,000/ - as compensation - -Misc. Case No. 1 M of 1978. The parents, widow and minor children of Satyabadi jointly laid a claim for Rs. 1,10,000/ - as compensation - Misc. Case No. 10M of 1978. In both the cases, the accident was alleged to have occurred due to rash and negligent driving of the drivers of both the vehicles. The jeep belonged to Tathagata and was insured with the New India Assurance Company Limited and the truck belonged to the Orisaa State Electricity Board.
(2.) THE respective owner of the vehicles Laid the blame on the other, On the evidence tendered by the parties, the tribunal held that the collision took place due to the rashness and negligent of the driver of the jeep. In each of the cases, compensation was assessed at Rs. 30,000/ - and was directed to be paid by Tathagata, the owner of the jeep on a holding that Upendra and Satyabadi were gratuitous passengers and the insurance company under the terms and conditions of the policy had not undertaken to indemnify the owner in case of death or bodily injury to gratuitous passengers Being aggrieved by the decisions of the tribunal, the owner has filed Misc. Appeal No. 340 of 1981 and Misc. Appeal No. 383 of 1982. Father of Upendra has filed Misc. Appeal No. 75 of 1982 for enhancement of the quantum of compensation and for holding the owners of both the vehicles liable etc. No doubt, Upendra was young at the time of his death. But in such case it is not the age of the person who met his death in an accident is material but the age of the claimant for that would determine the extent of dependency. The tribunal which had the occasion to assess the age of Raghunath adjudged his age at 65 years at the time of the accident. Holding that he would have lived until he reached the age of 75years, the dependency was assessed for a period of 10 years on the evidence adduced, the tribunal assessed the compensation at Rs. 30,000/ -. In my opinion, the amount determined by the tribunal does not appear to be low. On the evidence also the finding of the tribunal that the accident took place due to the rashness and negligence of the driver of the jeep in driving the vehicle cannot be upset. The only witness, PW 1, examined to justify as to the manner and the circumstances in which the accident took place was found prevaricating. Rightly, therefore, the tribunal did not place much reliance on her evidence. The driver of the truck came forward to testify as O.P.W. 1. His evidence was considered trustworthy by the tribunal. Adverse inference was drawn for non -examination of Tathagata who was driving the jeep. I am, therefore, of the view that the finding of the tribunal that Tathagata was driving the vehicle in rash and negligent manner cannot be found fault with. Accordingly, the appeal filed by Raghunath Mohapatra has no merit and is dismissed.
(3.) IN the other two appeals by the owner of the jeep, the question that arises for consideration is if having regard to the terms and conditions of the policy, the insurer was liable for the death of passengers in an accident which came about due to rashness and negligence of the driver of the vehicle. The liability of the insurer to third parties is contained in Section (ii) of the policy. Clause (i) thereof reads as under: 1. The Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of (a) Death of or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward but except so far as is necessary to meet the requirement of Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.;

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