M/S.Iffco Tokio General ... vs Lipi Sahu And Others
2021 Latest Caselaw 12596 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   MACA No.930 of 2019
            M/s.Iffco Tokio General Insurance Co.       ....           Appellant
            Ltd.
                                                       Mr. J.R. Deo, Advocate
                                          -versus-
            Lipi Sahu and others                     ....      Respondents
               Mr. B.N. Rath, Advocate for claimants-Respondent Nos.1 to 5

                        CORAM:
                        JUSTICE B. P. ROUTRAY
                                       ORDER

07.12.2021 Order No.

04. 1. Heard Mr. J.R. Deo, learned counsel for the Appellant-

Insurance Company as well as Mr. B.N. Rath, learned counsel for the claimants-Respondent Nos.1 to 5.

2. The present appeal is directed against the judgment dated 14.11.2019 of the learned 4th MACT, Angul in MAC No.99 of 2017. In the impugned judgment, an amount of Rs.13,55,200/- has been awarded as compensation to the claimants-Respondent Nos.1 to 5 along with interest @ 6% per annum from the date of filing of the claim application on account of death of the deceased in a motor vehicular accident.

3. It is contended on behalf of the Appellant that the offending vehicle, i.e. motorcycle bearing Registration No.OD-19-E-5627 has been planted in the accident though not involved. It is submitted that, the deceased was a pillion rider in another

motorcycle which was driven by one Mithun Behera and at the time of accident, the deceased was under influence of Khajur Tadi (date palm juice) and he jumped from the motorcycle at the turning point resulting collusion of the bike and sustained injury resulting to death. It is also submitted that the FIR was lodged after five days of the accident which itself fortifies the stand of the insurer that the deceased did not die due to the negligence on the part of the driver of the offending vehicle.

4. Upon perusal of the impugned judgment, it is seen that the learned Tribunal has discussed the above aspect elaborately to reject such contention raised on behalf of the insurer. P.W.2 has been examined on behalf of the claimants, who stated himself to be the eye-witness of the accident. Undoubtedly in his evidence, he has narrated about the accident to suggest the negligence on the part of the driver of the offending vehicle. On the other hand, the Appellant in order to substantiate his contention relies on the evidence of O.P.W.1, the surveyor appointed by the Appellant, who admittedly was not a witness to the accident but states that the offending vehicle was not involved in the accident. No other independent witnesses were examined on behalf of the insurer to rebut the evidence of the direct eye-witness, i.e. P.W.2. Thus the rebuttal evidence adduced on behalf of the insurer to deny the case of the claimant is not found sufficient.

5. With regard to delay in lodging the FIR, it would be relevant to say here that this reason alone cannot take away effect of the evidence adduced by the direct witness who has flawlessly accounted for the occurrence. The other supporting reason is the

finding given in the police papers which suggests negligence on the part of the driver of the offending vehicle. It is important to mention here that in the police report, the negligence on the part of the driver of offending motorcycle has been fixed and the said charge-sheet has been accepted by the concerned criminal court. Thus in view of the oral testimony of P.W.1, the direct eye- witness, which is supported by the findings in the police papers, all such contentions raised by the insurer based on the evidence of the surveyor, who is admittedly not a witness to the occurrence, are rejected. As such, no fault is found in the approach of learned Tribunal in fixing negligence on the part of the driver of the offending vehicle.

6. Next coming to the quantum of compensation, the learned Tribunal has taken monthly income of the deceased at Rs.6000/- by guess work in absence of definite evidence and relying on the principles enunciated in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 has determined the amount of compensation. The age of the deceased as well as all number of dependants is not disputed in the present appeal. Since assessment income of the deceased has been counted based on the rate of wages prevalent on the relevant date and the well-settled principles propounded in the case of Pranay Sethi (supra) has been followed in determining the just compensation, no infirmity is seen to warrant interference with the impugned judgment.

7. The further challenge raised on behalf the insurer is that, since the source of income has not been proved on record, therefore

grant of future prospects by the learned Tribunal is not proper and the same should be taken out of the fray. This contention is rejected being without merit.

8. Accordingly, the appeal is dismissed.

9. The Insurance Company is directed to pay the entire award amount along with interest as directed by the learned Tribunal within a period of ten weeks from today and the same shall be disbursed to the claimants-Respondents Nos.1 to 5 on the same proportion and terms according to the direction of the learned Tribunal.

10. 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.

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

( B.P. Routray) Judge

B.K. Barik