National Insurance Company Ltd vs Laxmidhar Mahanta And Others
2021 Latest Caselaw 12392 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK
                                    MACA No.800 of 2017
            National Insurance Company Ltd.          ....         Appellant
                                      Mr. Gautam Mishra, Senior Advocate
                                        -versus-
            Laxmidhar Mahanta and others             ....      Respondents
                          Mr. P.S. Das, Advocate for Respondent Nos.1 & 2

                        CORAM:
                        JUSTICE B. P. ROUTRAY

                                        ORDER

03.12.2021 Order No.

09. 1. Heard Mr. Gautam Mishra, learned Senior Advocate for the Appellant-Insurance Company as well as Mr. P.S. Das, learned counsel for the Respondent Nos.1 & 2, claimants.

2. The present appeal by the insurer is directed against the judgment dated 16.3.2017 of the learned 4th MACT, Keonjhar in MAC Case No.04/169 of 2016-10.

3. The facts of the case are that the claimants are the parents of the deceased-Pradeep Kumar Mahanta, who died in a motor vehicular accident on 9.7.2010 while going in the offending vehicle bearing Registration No.OR-02-BD-2811. Learned Tribunal has directed for payment of compensation to the tune of Rs.1,73,30,000/- along with interest @6% per annum from the date of application i.e.29.9.2010.

4. Mr. Gautam Mishra, learned Senior Advocate for the Appellant advancing his challenge submits that, the Tribunal has committed error in fixing the negligence on the driver of the offending vehicle in absence of specific evidence adduced by the claimants. Secondly, it is contended that while fixing the quantum of compensation, the learned Tribunal has adopted mistaken rate of exchange of US dollar (USD) to INR in a higher proportion and further, has applied the multiplier considering the age of the deceased instead of the age of the parents.

5. Perusal of the impugned judgment reveals that the learned Tribunal has come to the definite finding about negligence on the part of the driver of the offending vehicle for causing the accident by rash and negligent driving.

6. It is submitted by the Appellant that the police papers have no evidentiary value to be relied on by the learned Tribunal in fixing negligence on the part of the driver. In this regard, Mr. Mishra, learned Senior Advocate has relied on the decisions of the Supreme Court in the case of Surender Kumar Arora and another vs. Manoj Bisla and others, reported in (2012) 4 SCC 552, and of this Court in Prafulla Kumar Mishra vs. Indrasen Sharma and another, reported in 2019 SCC OnLine Ori.7, Mataji Bewa and others vs. Hemanta Kumar Jena and another, 1993 SCC OnLine Ori.56 and Banawarilal Agarwalla and another vs. Jeevan Kumar Badu and another, 94 (2002) CLT

588.

7. In the instant case admittedly no evidence has been adduced by the insurer before the learned Tribunal to deny the negligence on the part of the driver of the offending vehicle. From the side of the claimants, the father of the deceased was examined as P.W.1 and in course of his examination, he relied on the police papers in Bhandaripokhari P.S. Case No.114/2010, i.e. the copies of the FIR, charge-sheet, etc. A careful scrutiny of the evidence of P.W.1 reveals that he has deposed about the death of the deceased in the accident due to rash and negligent driving of the driver of the vehicle and in support of his statement, he adduced the copies of the FIR, charge-sheet, etc. Thus it is not the case as submitted by Mr. Mishra that the learned Tribunal has relied on the documents in the police case entirely to establish the negligence on the part of the driver, but the Tribunal has relied on the oral evidence of P.W.1 drawing support from those documents to establish the negligence on the part of the driver. Therefore, the contention put forth on behalf of the Appellant to absolve the negligence on the part of the driver in causing the accident is found unacceptable. It is thus held that, the learned Tribunal has rightly fixed the negligence on the driver for causing the accident.

8. Next coming to the quantum of compensation as directed by the learned Tribunal, the first challenge of the Appellant to consider the age of the parents for determining the multiplier, it is relevant to record the law propounded in the case of Divisional Manager, Reliance General Insurance Co. Ltd. vs. Manjushree Mohapatra and another, 2019 (2) TAC 587 (Ori.), where this Court relying on the decisions of the Supreme Court in the case of

National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680, have held at Paragraph 24 that, when a bachelor dies, his age shall be taken into account while applying multiplier. Of course the same has been challenged by the Insurance Company before the Hon'ble Supreme Court in SLP Nos.11757-11758/2019, which is pending adjudication. But the Constitution Bench of the Supreme Court in the case of Pranay Sethi (supra) have held at Para 59.7 that, the age of the deceased should be the basis for applying the multiplier. So no infirmity is seen in the approach of the learned Tribunal to determine the multiplier taking into account the age of the deceased.

9. It is further contended by Mr. Mishra that the learned Tribunal has committed error while applying the conversion rate of USD to INR at the rate of Rs.50/- per USD. As per the document downloaded from the site of the RBI by Mr. Mishra, the exchange rate is Rs.44.92 on the date of filing of the application, i.e. 29.9.2010.

10. Mr. Das, learned counsel for the claimants at this stage submits that as per Ext.25 produced before the learned Tribunal, the exchange rate of USD is at INR 45.96 as on 30th June, 2010. In other words, the exchange rate as relied on by Mr. Mishra from the document collected through internet from the site of the RBI prevailing on 29.9.2010 is not disputed by the Appellant.

11. Now the question comes as to whether the exchange rate prevailing on the date of filing of the application will be taken

into consideration, or on the date of accident? In this regard, Mr. Mishra relies on the decision of the Supreme Court in the case of Jiju Kuruvila and others vs. Kunjujamma Mohan and others, reported in (2013) 9 SCC 166 to contend that it should be the date of filing of the application and not earlier to it. In the cited case, the Supreme Court has observed at Paragraph 16 as follows:

"16. In the present case, admittedly the claimants filed a petition in April 1990 (affidavit sworn on 24-3-1990) and claimed compensation in INR i.e. Rs.57,25,000. Such compensation was not claimed in US dollars. For the said reason and in view of the decision of this Court in Forasol v. ONGC, 1984 Supp SCC 263 as followed in Remusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, we hold that the date of filing of the claim petition (April 1990) is the proper date for fixing the rate of exchange at which foreign currency amount has to be converted into currency of the country (INR). The Tribunal and the High Court have rightly relied on Ext.A-7, to fix the rate of exchange as Rs.17.30 (as was prevailing in April 1990)."

12. Considering the principles so decided by the Supreme Court, the rate of exchange prevailing on the date of filing of the application is found applicable. Accordingly without disturbing the other finding of the Tribunal in assessing the monthly income of the deceased, but applying the exchange rate at Rs.44.92, the monthly income of the deceased is taken at Rs.89,840/-. Consequently, the table of computation, based on the principles enumerated in the case of Pranay Sethi (supra), is determined as follows:

 Sl. No.                      Head                         Calculation
  (i)       Income per month                              Rs.89,840/-
  (ii)      50% of (i) to be added towards future         Rs.44,920/-
            prospect
  (iii)     50% of (i) + (ii) to be deducted towards      Rs.67,380/-
            personal and living expenses of the
            deceased
  (iv)      Applying multiplier of 17                  Rs.67,380 x 12 x 17
                                                        =Rs.1,37,45,520/-
  (v)       Loss of love and affection +               Rs.70,000 enhanced
            Loss of estate + Funeral expenses                by 10%
                                                          =Rs.77,000/-

                                Total compensation      Rs.1,38,22,520/-

13. Resultantly, the amount of compensation is reduced to Rs.1,38,22,520/- (rupees one crore thirty-eight lakhs twenty-two thousand five hundred twenty only). The Insurance Company is directed to deposit the modified amount of Rs.1,38,22,520/- along with interest @6% from the date of filing of the claim application before the learned Tribunal within a period of eight weeks from today; where-after the same shall be disbursed to the claimants on the same proportion and terms as directed by the learned Tribunal.

14. On deposit of the award amount before the learned Tribunal and filing of a receipt evidencing the deposit with a refund application before this Court, the statutory deposit made before this Court with accrued interest thereon shall be refunded to the Appellant-Insurance Company.

15. The MACA is disposed of.

16. An urgent certified copy of this order be granted on proper application.

( B.P. Routray) Judge

B.K. Barik