N.I.A.CO.LTD vs RABINDRANATH NAYAK

Court
Odisha High Court

IN THE HIGH COURT OF ORISSA AT CUTTACK

MACA No.17 of 2005
CNR No. ODHC010023772005


New India Assurance Co. Ltd., ..... Appellants

Bhubaneswar and another

Represented by Adv. –

Mr. Somnath Roy

-versus-

Rabindranath Nayak and another ..... Respondents

Represented by Adv. - M/s.
Anupam Rath, S.Rath
(For Respondent No.2)

M/s. L.Dash, A.K. Dash

(For Respondent No.3)
----------------

CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA

__________________________________________________________

Date of hearing & judgment : 27.08.2026

__________________________________________________________

A.K. Mohapatra, J.
1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard the learned counsel for the Appellants-Insurance
Company as well as learned counsels appearing for the Respondent
No.2 & 3-owner of the vehicles.

3. Despite valid service of notice, none appears for the Respondent

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No.1-Claimant. Perused the appeal memo as well as the impugned
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judgment dated 30 July, 2004.
4. By filing the present appeal under Section 173 of the Motor
Vehicles Act, 1988, the Appellants-Insurance Company have
approached this Court thereby challenging the fixation of liability on
the Appellants-Insurance Company by the learned Third Motor
Accident Claims Tribunal, Puri in M.A.C. No.220/594 of 1993/1987
th
vide judgment dated 30 July, 2004.
5. Learned counsel appearing for the Appellants-Insurance
Company, at the outset, contended that while deciding the abovenoted
M.A.C. Case, the owner has not filed the valid insurance policy in
respect of the offending vehicle. On such ground, learned counsel for
the Appellants-Insurance Company stated before this Court that the
fixation of liability is on the Appellant-Insurance Company by the
learned Tribunal by virtue of the impugned judgment is unsustainable
in law.
6. On perusal of the record, it appears that the Respondent No.1-
Claimant filed a claim application under Section 110-A of the M.V.
Act, 1939 claiming a total compensation of Rs.1,20,000/- from the
Opposite Parties therein.
7. The case of the Respondent No.1-Claimant, in brief, is that on
17.05.1987 at about 4.30 P.M. when the Respondent No.1-Claimant
travelling in the trekker bearing No.OAX-227 from Gop to Nimapara,
the offending trekker bearing No.OSU-8485, coming from opposite
direction, driven in a rash and negligent manner, collided with the
vehicle in which the Respondent No.1-Claimant was travelling. As a

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result of such collision, Respondent No.1-Claimant sustained fracture
injuries. He further stated that the Claimant had undergone treatment
at Capital Hospital, Bhubaneswar as indoor patient for about 20 days
and he has spent for about Rs.30,000/- in the treatment.
8. Learned Tribunal, by virtue of the impugned judgment, has
found that the offending vehicle was at fault. Accordingly, it has
awarded compensation of Rs.15,000/- along with interest @ 9% per
annum from the date of filing of application i.e. 07.09.1987 till the
date of realization and the liability has been saddled with the
Appellant-Insurance Company. Being aggrieved by such judgment of
the Tribunal, the Appellants-Insurance Company has approached this
Court by filing the present appeal.
9. Learned counsel for the Appellants-Insurance Company, at the
outset, stated that the Claimant has not filed any document to establish
the fact that the vehicle was insured with the Appellants-Insurance
Company. He further contended that the learned Tribunal has not
framed any specific question with regard to the validity of the
Insurance Policy and no finding thereon has been returned by the
Tribunal. In such view of the matter, learned counsel for the
Appellants contended that the impugned award is liable to be set aside
on that score alone.
10. Learned counsel for the Respondent No.2-owner of the vehicle,
on the other hand, contended that although the owner has not contest
before the Tribunal, however, the learned Tribunal, while answering
the Issue No.4, has made an observation that in the claim application
the Claimant has stated that both vehicles were insured with the
Opposite Party No.3 & 4 i.e. Appellants-Insurance Company and that

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the Appellants-Insurance Company has not led any evidence except a
simple denial that the vehicle was not insured with them.
Accordingly, the Tribunal has come to a conclusion that the Claimant
has discharged his onus and that the Insurance Company has failed to
adduce any rebuttal evidence with regard to the absence of any
insurance policy or validity thereof. Accordingly, the learned
Tribunal has not committed any illegality in saddling the liability with
the Insurance Company.
11. On a careful analysis of the rival contentions of the learned
counsels appearing for the respective parties, further taking note of the
grounds taken in the appeal memo as well as on close scrutiny of the
impugned award, this Court found that the Appellants-Insurance
Company have approached this Court challenging the impugned
award on the ground that the liability has been erroneously fixed with
the Appellants-Insurance Company. The aforesaid issue is the sole
issue to be determined in the present appeal.
12. On perusal of the trial court record which has been called for
and on a close scrutiny of the impugned award, this Court found that
the learned Tribunal while answering Issue No.4 has categorically
stated that the Appellants-Insurance Company has failed to adduce
any evidence with regard to the existence and validity of the policy.
On the contrary, the Claimant has discharged his onus by stating in
the claim petition that both the vehicles were insured with the
Appellants-Insurance Company. Since the owner has not contested the
claim application, the entire onus shifts to the Appellants-Insurance
Company to establish the fact that the offending vehicle was not
insured with the Insurance Company. This Court further observes that

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the Claimant, being a passenger of the vehicle, could not have
produced the Insurance Policy of the offending vehicles. As such, no
fault can be found with the Claimant. Moreover, the learned Tribunal,
after considering the aforesaid fact, has come to a conclusion that in
the absence of any rebuttal evidence, the stand of the Claimant in the
claim application is to be accepted and, accordingly, fixed the liability
to the Appellant-Insurance Company.
13. On a careful analysis of the impugned judgment, this Court
found that the learned Tribunal has not committed any illegality while
arriving at the aforesaid conclusion, inasmuch as the Appellants-
Insurance Company has failed to contest the case or produce any
rebuttal evidence. Moreso, the owner of the vehicle, who was set ex
parte, has also not disputed the claimants’ case.
14. Learned counsel for the Appellants-Insurance Company, at this
juncture, contended that lack of insurance policy, being a question of
law, can be raised at the belated stage. In the facts and circumstances
of the case, this Court is of the view that such a question is a mixed
question of fact and law and that the Appellants-Insurance Company
has measurably failed to raise such ground before the Tribunal and
failed to lead any evidence in support of such contention. Therefore,
they are estopped from raising such ground in the present appeal.
15. On a careful analysis of the submissions made by the learned
counsels appearing for both sides, further taking note of the impugned
award and keeping in view the fact that the accident is of the year
1987 and that the matter is pending before this Court since 2005, this
Court is of the view that the impugned award does not call for any
interference and the same is required to be disposed of without

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interfering with the award in the larger interest of justice.
16. Accordingly, the appeal is dismissed.
17. However, while disposing of the present appeal, this Court
modifies the interest awarded by the Tribunal to the extent that the
Appellants-Insurance Company shall now deposit the awarded
amount, if not yet deposited, along with interest @ 6% per annum
from the date of filing of claim application till the date of realization
of such amount. Let the aforesaid amount be deposited before the
Tribunal within eight weeks, if the same has not deposited in the
meantime. Thereafter, the Tribunal shall take necessary steps to
disburse the awarded amount in favour of the Claimant as
expeditiously as possible in accordance with law.
18. It is further directed that on production of a copy of the
acknowledgment evidencing deposit of the awarded amount along
with interest before the registry of this Court, the registry of this Court
shall release the statutory deposit along with accrued interest in favour
of the Insurance Company on an application being filed by the learned
counsel for the Insurance Company before the registry of this Court.

( A.K. Mohapatra )
Judge


Orissa High Court, Cuttack.
th
The 27 August, 2026/Debasis Aech, Secretary

Signature Not Verified

Digitally Signed
Signed by: DEBASIS AECH
Designation: SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 31-Aug-2026 12:51:03

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