The Divisional Manager vs Geetanjali Bhutia & Ors
2021 Latest Caselaw 8606 Ori

            ORISSA HIGH COURT : C U T T A C K

                    MACA No.334 of 2020

        An Appeal U/s.173 of the Motor Vehicle Act, 1988


The Divisional Manager,                  : Appellant
M/s. Oriental Insurance Co.Ltd.


                         -Versus-


Geetanjali Bhutia & Ors.                 : Respondents

For Appellant                       : M/s. A.A. Khan,
                                      S.K. Mishra,
                                      S.K. Sahoo

For Respondents 1 to 3              : Mr. T.Ch. Mohanty,
                                      Sr. Adv.
                                      M/s. J. Mohanty,
                                      R. Bhagat

For Respondents 4 & 5               : None



CORAM :
JUSTICE BISWANATH RATH

Date of hearing : 3.08.2021:: Date of Judgment :17.08.2021

1. This appeal is filed at the instance of the Oriental

Insurance Company Ltd. challenging the judgment & award

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passed by the 1st Addl.Dist.Judge-cum-1st M.A.C.T., Cuttack

in MAC No.596 of 2015.

2. Factual background involved in this case is that on

18.12.2013 at about 11 P.M. while the deceased was

returning in the offending vehicle from Bhubaneswar to his

village at Talcher, the driver of the said vehicle driving in

rash and negligent manner suddenly dashed against a

loaded truck from its backside, resulting the deceased

sustained grievous injuries. Immediately after such accident

the deceased was shifted to S.C.B. Medical College &

Hospital, Cuttack in an ambulance for treatment, where he

succumbed to injuries during course of treatment. The

claimants have the specific case that the mishap took place

due to rash and negligent driving of the driver of the

offending vehicle. On the premises that the deceased was

only 28 years age at the time of death and by profession was

a contractor earning minimum Rs.30,000/- per month from

his contractor profession, the claimants claimed for

appropriate compensation making both the Insurance

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Company involving the offending vehicle and the owner of

the vehicle as Opposite Parties therein.

3. The owner i.e. the Opposite Party No.1 therein

contested the proceeding by filing written statement, on the

premises that the claimants have no cause of action against

the Opposite Party No.1, the Opposite Party No.1 with an

alternate plea submitted therein that even assuming that

there is entitlement of compensation, but since the vehicle

was insured under the Opposite Party No.2 therein i.e. the

present appellant, there may be a direction for payment of

compensation by the Insurance Company and the claim

case should be dismissed against the owner. Similarly the

present appellant being the Opposite Party No.2 therein

contested the case by filing independent objection. The

Insurance Company while denying the allegations made by

the claimants contended that it is for the claimants to prove

their case by filing relevant documents. It is also pleaded by

the Insurance Company that there was no involvement of

alleged offending vehicle in the accident. It is thus

contended that there is no claim involving the policy relied

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on therein and thus the claim made by the claimants is not

entertainable against the Insurance Company. The claim

was also contested on the point of liability. Pleadings therein

further disclose that even otherwise the driver of the alleged

offending vehicle was not holding valid and effective driving

license at the time of alleged accident and in alternate the

Insurance Company also challenged the claim of

compensation being at higher side.

4. On completion of pleadings the Tribunal framed the

following issues:

" ISSUES

1. Whether the claim application in the present form is maintainable?

2. Whether due to rash and (or) negligent driving of the driver of the offending vehicle (Mahindra Bolero) bearing registration No.OR-19-K-2164 the accident took place and in that accident the deceased, Ajaya Kumar Bhutia, succumbed to injures?

3. Whether the petitioners are entitled to get the compensation. If so, what would be the extent?

4. Whether both the Opposite Parties or either of them are/is liable to pay the compensation? And

5. To what relief(s), if any, the petitioners are entitled to?

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5. Parties to strengthen their case more particularly, the

claimants examined two witnesses and exhibited Ext.1 to

11. The Opposite Party No.1 therein has neither produced

any witnesses nor relied on any documents. The Opposite

Party No.2, however, entered into cross-examination

involving the claimant's witnesses. Basing on the pleadings

and the submissions of the respective parties, the Tribunal

attending to issue no.2 has come to hold that the deceased

died on a vehicular accident caused due to rash and

negligent driving of the driver of the offending vehicle

bearing No.OR-19-K-2164 a Bolero. Similarly, answering on

the issue nos.1, 3, 4 & 5 the Tribunal taking into account

the pleadings and the material particulars as a whole and

more particularly claim of the claimants since based on

income tax returns for the assessment year 2010-2011 and

2011-12, came to observe that average income of the

deceased after deduction of tax per annum comes to

Rs.2,52,176/- adding thereto 40% towards future prospect,

as the deceased was below 40 years, the Tribunal after

entering into the contribution aspect involving the deceased

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family, came to observe that annual package towards

compensation comes to Rs.2,64,785/-. Taking into

consideration the age of the deceased the Tribunal applied

17 multipliers and further taking into consideration the

compensation granted towards loss of estate, loss of

consortium and funeral expenses, the Tribunal granted a

further sum of Rs.70,000/- towards conventional heads

namely loss of estate, loss of consortium and funeral

expenses. The entitlement of compensation of

Rs.45,01,345/-, therefore, comes to Rs.45,71,345/-.

Further also while granting 6% interest on the

compensation amount from the date of claim, the Tribunal

also directed, failure of making payment within particular

time, interest will be added 12% per annum. The Tribunal

also fixed some modalities for release of the compensation.

6. Assailing the judgment impugned herein, Mr. Khan,

learned counsel for the Appellant taking this Court to the

grounds taken in the memorandum of appeal contested the

judgment on several counts.

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7. Mr. Khan, learned counsel for the Appellant submitted

that for the claim of the claimants that the accident took

place due to the sudden break used by the front running

goods loaded trucks, liability of making payment of the

compensation involving such accident should not have been

fixed on the Insurance Company. Mr. Khan, learned counsel

for the Appellant also claimed that even though the

claimants claim that the deceased was a contractor and had

filed income tax return of the assessment year 2010-11 and

2011-12, however, there was no filing of tax return to

connect the accident, which took place on 18.12.2013.

Mr. Khan, learned counsel for the Appellant thus challenged

the judgment on the premises that there has been wrong

consideration of the materials available on record.

Mr. Khan, learned counsel for the Appellant, therefore,

contended that for no filing of the income tax return of the

assessment year 2012-13, there was absolutely no materials

available disclosing the income of the deceased at the time

of accident and there was even no production of bank

details of the particular period. For some disclosures

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through the document at Ext.9 and unregistered

documents, the Insurance Company contested the award on

the premises that the document vide Ext.9 is manufactured

to shoot the claim of the claimants. Mr. Khan, learned

counsel for the Appellant also contested the award on the

premises that the Tribunal should have considered 1/3rd

deduction of the assessed income of the deceased under the

heading of the personal expenditure. Therefore it went

wrong in applying 1/4th deduction. For the involvement of a

joint family business Mr. Khan, learned counsel for the

Appellant also contended that none of the claimants would

have been entitled to anything on the head of family

expenditure for their share involving partnership business

and therefore, deduction on this head in the minimum

should have been 1/3rd.

8. Taking this Court to the decision of the Hon'ble apex

Court in the case of National Insurance Company

Limited versus Pranay Sethi and others as reported in

2017(4) T.A.C.673(S.C.). Mr. Khan, learned counsel for the

Appellant also challenged the award of 40% on the head of

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future prospect and in the process Mr. Khan, learned

counsel for the Appellant requested this Court for

interfering in the award and suitably modifying the

compensation.

9. Mr. Mohanty, learned Senior Advocate appearing on

behalf of the Respondents 1 to 3, on the other hand,

referring to the pleadings already taken in the trial process

and the evidence available on record both oral and material,

while contesting the plea of the Insurance Company

submitted that in fact the Insurance Company did not have

any evidence oral or material to establish their case, as they

have neither examined anybody nor produced any

document to disprove the claim of the claimants. On the

score of the Tribunal relying on the assessment of income

tax of the assessment year 2010-11 & 2011-12,

Mr. Mohanty, learned Senior Advocate for the Respondents

1 to 3 contended that there was at least some piece of

materials to establish the income of the deceased and for

the material establishment through the documents prior to

the accident, there is no illegality in assessing the

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compensation on the basis of assessment orders being

produced. Taking this Court to the decision of the Hon'ble

Apex Court in the case of National Insurance Company

Limited versus Pranay Sethi and others as reported in

2017(4) T.A.C.673(S.C.). Mr. Mohanty, learned Senior

Advocate appearing on behalf of the Respondent Nos.1 to 3

claimed that the award gets support through the said

judgment requiring no interference therein.

On the plea of the Insurance company on the basis of non-

filing of return for the assessment year 2012-13

Mr. Mohanty, learned Senior Advocate contended that since

the accident took place on 18.12.2013, return, if any, for

the assessment year 2012-13 could not be filed, as the same

was to be filed only after March-2014 and therefore, there

was no scope of filing return of the deceased for the

assessment year 2012-13 considering the death of the

deceased taken place on 18.12.2013. Mr. Mohanty, learned

Senior Advocate seriously objected to the claim of the

Appellant on the score of deduction and on the other hand

referring to the cross appeal by the claimants Mr. Mohanty,

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learned Senior Advocate appearing on behalf of the

Respondents 1 to 3 taking this Court to the plea taken

therein and the decisions taken support therein, while

requesting this Court to dismiss the appeal at the instance

of the Insurance company prayed this Court for

enhancement of the compensation.

10. Considering the rival contentions of the parties, this

Court finds, the trial court basing on the pleadings of the

parties framed the issues as indicated hereinabove in

paragraph no.3. Looking to the observation made by trial

court, this Court observes, even though the Insurance

Company pleaded so many things, but unfortunately there

is no examination of single witnesses, nor bringing any

material particulars to disprove the claim of the claimants

on any of the aspect. This Court again vetting through the

cross examination process finds, there is absolutely no

attempt at the instance of the Insurance Company to

dislodge the material support introduced by the claimants

in the trial proceeding. This Court, therefore, observes, in

the above situation the only material available for

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consideration is, the pleadings of the respective parties and

the evidence oral and material taken support by the

claimants. Now coming to the challenge of the Insurance

Company on the basis of orders being passed on the tax

assessment of the year 2010-11 & 2011-12, this Court

finds, for the accident taking place on 18.12.2013, these

were the two returns available for consideration and have

been rightly relied on, besides this there cannot be any

dispute also in taking into account the income of a

businessman / contractor some time prior to the accident

taken place. This Court, therefore, does not find any scope

for interfering on the issue of income aspect involving the

deceased. Similarly on the score of responsibility of the

liability aspect involving the vehicle vis-à-vis the Insurance

Company, this Court finds, the claimants here claimed that

the accident caused due to the rash and negligent driving of

the driver of the offending vehicle resulting death of the

deceased, here even though the Insurance Company took a

stand that the offending vehicle got into accident for the use

of sudden break of the front goods loaded vehicle, there is in

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fact no attempt by the Insurance Company to establish their

such claim. Therefore, there remains no foundation on the

claim of the Insurance Company that the front vehicle

becomes a reason of the accident involved herein. Now

coming to the question of deduction towards self

expenditure, for the involvement of the contribution to the

family, this Court finds, there is material disclosures to

establish that the deceased was one amongst the members

of the partnership business, which undisputedly includes

other family members. It is apparent that there is

involvement of other family members in the partnership

business and this Court, therefore, finds force in the

submission of Mr. Khan, learned counsel for the Appellant

that instead of adopting deduction of 1/4th from the income

of the deceased under the heading of personal leaving

expenditure, it should have been 1/3rd deduction of the

same. This Court, therefore, finds, there is requirement of

reconsideration of the income aspect vis-à-vis contribution

to the family by applying deduction of 1/3rd from the

contributing the expenditure of Rs.3,53,046/- even after

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taking 40% as future prospect. The submission so far grant

of a sum of Rs.70,000/- on conventional head namely loss

of estate, loss of consortium and funeral expenditure is

concerned, this Court finds, grant of a sum of Rs.70,000/-

on the above head is strictly in terms of the decision of the

Hon'ble apex Court in the case of National Insurance

Company Limited versus Pranay Sethi and others as

reported in 2017(4) T.A.C.673(S.C.). It is, in this view of the

matter, this Court partly allowing the present appeal, remits

the matter to the 1st Addl. District Judge-cum-1st MACT,

Cuttack to revisit the calculation aspect taking into account

the deduction of 1/3rd from Rs.3,53,046/- and applying 17

multiplier. It is also open to the Tribunal to revisit on the

interest aspect as well as the modality of releasing of the

compensation amount and the entire exercise is directed to

be completed within a period of one & half months from the

date of communication of an authenticated copy of this

judgment.

11. The Appeal succeeds to the extent indicated

hereinabove. In view of the above, this Court finds, the

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cross-appeal needs no further order and is disposed of,

accordingly.

...............................

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 17th day of August, 2021// Ayaskanta Jena, Senior Stenographer