Orissa High Court

In Maca No.848/2019 vs Bhimasen Mahal & Another on 26 August, 2021

                    ORISSA HIGH COURT : C U T T A C K

                              MACA NO.848 OF 2019
                                         With
                              MACA NO.458 OF 2020

          In the matter of Appeals under Section 173 of the M.V. Act, 1988

In MACA No.848/2019
Sabitri Padhy & another                           :   Appellants

                                 -Versus-

Bhimasen Mahal & another                          :   Respondents


For Appellants                   :      Mr.D.C.Dey

For Respondent No.1              :      M/s.A.Tripathy, M.Pagal
                                        & A.K.Behera
For Respondent No.2              :      Mr.S.K.Sarangi


In MACA No.458/2020
Senior Divisional Manager,
M/s.National Insurance Company Ltd.               :   Appellant

                                 -Versus-

Sabitri Padhy & another                           :   Respondents


For Appellant                    :      M/s.S.K.Sarangi, A.K.Nayak,
                                        I.C.Pradhan & S.K.Sarangi

For Respondents                  :      Mr.D.C.Dey


                   CORAM :
                    JUSTICE BISWANATH RATH

                  Date of hearing & Judgment :: 26.08.2021

                                                                    Page 1 of 7
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1.    These are two Appeals; MACA No.848/19 is at the instance of the

Claimants for enhancement of the award involved and MACA No.458/20 is at

the instance of the Insurance Company challenging the quantum of

compensation.


2.    Background

involving the case is that while the deceased was

proceeding towards Purusottampur Market on the left side of the road by riding

his bicycle at that time, the offending vehicle came from the side of

Bhubaneswar towards Purusottampur at a breakneck speed driven in a rash and

negligent manner suddenly dashed against the deceased from his back side

resulting the deceased fell down on the road sustaining severe bleeding injury.

He was immediately shifted to the Government Hospital, Nayagarh where he

succumbed to his injuries. On the premises the deceased was 69 years of age

and was getting pension at Rs.10,333/- per month, as he was working as a Jeep

Driver in the Office of Executive Engineer (Agriculture CAD Division) at

Malkanagiri, the Claimant-Wife and the son of the deceased filing the claim

application claimed appropriate compensation.

3. On their appearance, the Owner filed Written Statement stating that

there was no cause of action for the Claimants to file the claim case and the

vehicle in question was since duly insured by the Insurance Company, for the

Driver in possession of valid and effective driving licence, the Owner claimed

that he was not liable to pay compensation, as it becomes the responsibility of

the Insurance Company for the coverage of the insurance policy.

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4. The Insurance Company on its appearance filed its objection denying

the allegations, inter alia, contending that the Claimants are to prove their case

by filing relevant documents. It further alleged that the offending vehicle was

no way connected with the accident. Insurance Company contended that there

is no contribution on the part of the Owner or the Insurance Company. A

further plea is also taken by the Insurance Company that the Driver of the

alleged offending vehicle was not holding a valid and affective driving licence

at the time of alleged accident. On the above premises, the Insurance Company

claimed that it is not liable to pay compensation, in the worst case it prayed for

fixing liability on the Owner.

5. Based on the pleadings of the Parties, the Tribunal framed the following

Issues :-

"I. Whether the claim application is maintainable ?

II. Whether due to rash and/or negligent driving of the driver of the offending vehicle bearing registration no.OR-25-B- 4277 the accident took place and in that accident the deceased, Jagannath Padhy succumbed to injuries ?

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

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

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

6. Based on the pleadings and the materials disclosed and submission

advanced by the respective parties, the Tribunal ultimately finding the Issues in

favour of the Claimants granted compensation of Rs.4,83,320/- with simple

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interest @ 6% per annum from the date of filing of the claim application, i.e.,

25.4.2016 to be paid within two months. The Tribunal also directed that in the

event of failure of payment within two months, the Claimants will be entitled to

interest @ 12% per annum after completion of two months from the date of

award till the payment is made. The Tribunal in disposal of the Claim

Application also adopted the sharing distribution, as recorded therein.

7. The Claimants in MACA No.848/2019 in an attempt for enhancement of

the award pleaded that even though the Tribunal has granted compensation

looking to the income and age of the deceased, but however there has been no

payment of compensation towards parential consortium to the child involved

for losing his father.

8. Similarly the Insurance Company in MACA No.458/2020 advanced

their submission on three grounds. Firstly, the deceased was already 69 years of

age, which has not been taken into account by the Insurance Company and

contended that there is grant of high compensation. Ground No.2 appears to be

Claimant No.1 was in receipt of Rs.8000/- per month as family pension. It is

thus contended that had the Tribunal taken into account this aspect, there would

have been lesser compensation. Ground No.3 appears to be Claimant No.2 was

since major at the time of accident, he was not entitled to any compensation.

Mr.S.Sarangi, learned counsel for the Insurance Company submitted that

had the Tribunal taken into account the Claimant No.2 attaining majority, the

family contribution aspect on account of the deceased's income would have

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been 50% rather than as assessed by the Tribunal at 2/3rd income of the

deceased.

9. Considering the challenge to the common award involved herein by both

the Parties, this Court first takes up the grounds of challenge by the Insurance

Company. Reading the plea of the Insurance Company in the Tribunal and the

statement made in Sub-Para 3 of the counter affidavit of the Insurance

Company, this Court finds, the grounds raised herein so far as Ground Nos.2 &

3 have not been raised at all. It is in this view of the matter, this Court finds, for

there is no foundation in the objection of the Insurance Company before the

Tribunal, the Tribunal has not been provided with an opportunity to take

decision on such issue, these are surprised grounds in the present Appeal,

which cannot be entertained. So far as Ground No.1 is concerned involving the

age of the deceased being 69 years at the time of accident, from the discussions

on Issue Nos.III, IV & V, this Court here finds, based on the claim and counter

claim on the age of the deceased by both the Parties, the Tribunal entering into

threadbare discussion on the claim of both sides, referring to the decision of the

Hon'ble apex Court in Sarala Verma & Ors. Vrs. Delhi Transport

Corporation & another : 2009(2) TAC 677 (SC) has come to observe that

minimum five multipliers can be applied and accordingly assessed the

compensation taking into account five multipliers. In the circumstance and for

the decision of the Tribunal having support of the decision of the Hon'ble apex

Court, this Court finds, ground no.1 taken here is not sustainable in the eye of

law. Even assuming that the Insurance Company contested the trial on the

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ground on the aspect of Claimant No.2's attaining majority, therefore, he is not

entitled to any compensation, this Court from the decision of the Hon'ble apex

Court in National Insurance Company Ltd. vrs. Birender & Ors. (Civil

Appeal Nos.242 & 243 of 2020 disposed of on 13th January, 2020 discussing

on the same issue, Hon'ble apex Court in paragraph-15 has come to hold as

follows :-

"15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the facts whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."

For the legal position settled through the decision of the Hon'ble apex

Court, the contention raised by Sri Sarangi, learned counsel for the Insurance

Company indicated herein above has no substance. This Court, therefore, finds,

there is no merit in MACA No.458/2020.

10. Now coming to the claim of the Claimants on the score of parential

consortium, reading the entire judgment, this Court finds, there has been no

grant of compensation on this head. Looking to the settled position of law on

this aspect through the decision in Magma General Insurance Company Ltd.

vrs. Nanu Ram alias Chuhru Ram & others : 2018(4)TAC 345 (SC), this

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Court finds, the Claimants are justified on the claim of parential consortium of

Rs.40,000/- to Claimant No.2 at least and their such claim also gets support