Orissa High Court
D.M. vs Hiramani Hembram And Others on 9 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.353 of 2020
D.M., Oriental Insurance Co.Ltd. .... Appellant
Mr.Subrat Satpathy, Advocate
-versus-
Hiramani Hembram and others .... Respondents
Mr.J.Mohanty, Advocate for Respondent Nos.1, 3 to 6
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
09.11.2021
Order No.
6. 1. Heard Mr. Satpathy, learned counsel for the Appellant and
Mr.Mohanty, learned counsel for Respondent Nos.1, 3 & 6.
2. At the outset, it is submitted by Mr.Mohanty that Respondent
No.2, Gouri Hembram died during pendency of the appeal and
her name may be deleted from the appeal as all her L.Rs are on
record viz.,1,3,4,5 & 6.
3. In view of the above, the name of Respondent No.2 be
deleted.
4. This appeal is directed against the judgment/award dated 1st
October, 2019 of the learned 1st Addl. District Judge-cum-1st
MACT, Cuttack in MAC Case No.623 of 2014 wherein an
amount of Rs.36,71,559/- along with interest @ 6% per annum
has been granted.
5. Mr.Satpathy, learned counsel for the Appellant submits that
the deceased was not wearing the headgear at the time of accident
and therefore he contributed negligence. As such the amount of
compensation should be reduced proportionately.
6. On the other hand, Mr.Mohanty, learned counsel for the
claimants-Respondents submits that the insure has not taken any
specific plea in his reply to this effect before the learned tribunal
and in absence of any dispute with regard to age, profession and
income of the deceased, the amount of compensation is not liable
to be reduced only on account of any contributory negligence.
7. It is seen from the impugned judgment that P.W.2 has been
examined as an eyewitness. He has stated that while the deceased
was riding the motorcycle at the relevant time, the offending
motorcycle dashed against its' backside coming in a high speed.
No suggestion has been given to this witness whether the
deceased was wearing a helmet at the time of accident. However,
it is contended on behalf of the Appellant that the police seizure
list does not reflect seizure of any helmet. Therefore it is apparent
that the deceased was riding the motorcycle without wearing the
helmet in violation of the statutory provision. Admittedly, the
insurer has not pleaded contributory negligence on the part of the
deceased for not wearing helmet. But it is a fact that the police
papers do not disclose seizure of any helmet worn by the
deceased and the FIR was lodged after six days of the accident.
Thus keeping in view the circumstances apparent on record, as
the death is due to head injury, negligence on the part of the
deceased cannot be ruled out completely. But at the same time it
is to kept in mind that the insurer has not specifically pleaded to
that effect before the tribunal. This does not mean that the
negligence on the part of Hero Honda Super Splendour
Motorcycle is not established.
8. So keeping in view all such aspects as well as the evidence of
the eyewitness (P.W.2), the compensation amount is reduced to
Rs.34,00,000/- (thirty four lakhs) to meet the ends of justice and
to arrive at just compensation. The Appellant is directed to
deposit the aforesaid sum of Rs.34,00,000/- (thirty four lakhs)
before the learned Tribunal within a period of eight weeks along
with simple interest @ 6% per annum from the date of filing of
claim application i.e., 8.9.2014, which shall be disbursed amongst
the claimants in terms of the order of the learned Tribunal on the
same proportion including the conditions for fixed deposit. The
penal interest directed against the Appellant is waived.
9. The statutory deposit made by the Appellant be refunded to
him on proper application on production of proof of deposit of
the awarded amount before the learned Tribunal.
10. The appeal is disposed of accordingly.
( B.P. Routray)
Judge
C.R.Biswal
