Orissa High Court
Jharana Das And Others vs Sujit Kumar Das And Another on 26 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.269 of 2019
Jharana Das and others .... Appellants
Mr. K. Panigrahi, Advocate
-versus-
Sujit Kumar Das and another .... Respondents
Mr. A.A. Khan, Advocate for Respondent No.2
In MACA No.280 of 2019
The Manager, Legal, HDFC ERGO .... Appellant
General Insurance Company Limited
Mr. A.A. Khan, Advocate
-versus-
Jharana Das and others .... Respondents
Mr. K. Panigrahi, Advocate for Respondent Nos.1 to 4
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
22.11.2021
Order No.
MACA Nos.269 & 280 of 2019
07. 1. Heard Mr. K. Panigrahi, learned counsel for the claimants and
Mr. A.A. Khan, learned counsel for the Insurance Company.
2. Both the appeals being arise out of the same award dated
4.2.2019 of the learned 5th MACT, Khurda are heard together and
disposed of by this common order.
3. MACA No.269 of 2019 has been preferred by the claimants
praying for enhancement of the amount of compensation and
MACA No.280 of 2019 has been filed by the Insurance Company
challenging the liability fixed on them on the ground that the
deceased being the father of the owner of the offending vehicle
and the pillion rider at the time of accident cannot be treated as a
3rd party covered under the risk. The Insurance Company has
further questioned the quantum of compensation.
4. Perusal of the impugned judgment of the learned Tribunal
reveals that the claimants have been awarded compensation of
Rs.22,02,031/- along with 6% interest from 30.6.2017, i.e. the
date of filing of the claim application and while determining said
amount as just compensation, learned Tribunal has counted
monthly income (salary) of the deceased at Rs.20,718/- as per
Ext.9. The other heads of count like loss of estate, future
prospects etc are not questioned by any of the parties.
5. It is submitted by learned counsel for the claimants that the
monthly income ought to have been fixed at Rs.21,690/- as per
Ext.11. In support of the same it is submitted that Ext.11 is the
actual salary what the deceased was receiving on the date of
accident. But the learned Tribunal erroneously discarded it and
relied on Ext.9 which reveals lesser income of the deceased.
6. Mr. A.A. Khan, learned counsel for the Insurance Company
first challenges the entitlement of the claimants to receive the
compensation on the ground that the deceased is not covered as a
3rd party. In support of his contention, he relies on the decision of
the Supreme Court in New India Assurance Company Ltd. vs.
Sadanand Mukhi & others, 2009 AIR SCW 1372. In the said
case, the deceased being the son of the owner was driving the
motorcycle alone at the time of accident. But in the instant case, it
is the undisputed fact that deceased was a pillion rider at the time
of accident and the owner of the motorcycle was driving. Thus
the facts in the cited decision were different from the facts of the
present case. Since the deceased was the pillion rider and the
owner himself was driving the vehicle at the time of accident, by
the mere reason that the deceased happened to be father of the
owner, cannot be treated as 1st party on behalf of the owner to
remain out of the purview of 3rd party risk coverage. Thus the
contention of the Appellant that the deceased is not entitled to be
covered under 3rd party risk in respect of the offending
motorcycle at the time of accident is rejected. Besides that, it is
also the admitted case of the parties that the insurance policy was
a comprehensive/package policy having validity on the date of
accident.
7. Next coming to the question of quantum, it reveals from the
impugned judgment that the learned Tribunal has discarded the
evidence of the official witness and relied on the evidence of the
wife of the deceased to determine the compensation. Ext.9 is the
salary certificate produced by the wife. The deceased was serving
as a cook-helper in Barkul OTDC Limited, where P.W.3 was the
Manager. P.W.3 is the authority concerned who issued both Ext.
9 and 11, the salary certificates. The certificate under Ext.11 as
produced by P.W.3 is dated 3.11.2018 and the certificate under
Ext.9 is dated 3.8.2018. Both Exts. 9 & 11 contains signature of
P.W.3. As per the statement of the P.W.3, he being the Manager
has prepared Ext.11. In the cross-examination no question was
put to said P.W.3 disputing his knowledge about the salary
received by the deceased.
8. The difference between Ext. 9 and Ext. 11 is that, the later
speaks of higher salary of the deceased as per 6th Pay
Commission. The question is, which is more reliable between
Ext. 9 and Ext. 11?
9. In this regard, it reveals that P.W.1 in the capacity of wife of
the deceased has stated about the salary of the deceased by
producing Ext.9. So she has no official knowledge about Ext.9.
On the other hand P.W.3 being the author of both documents,
produces Ext.11. His competency to author Ext.11 is not
questioned and he relies on Ext.11 over Ext.9 as the actual salary
of the deceased on the date of accident. This being the position
and the official capacity of P.W.3 being not disputed, his
evidence is found weightier than the evidence of P.W.1 who does
not have any official knowledge on Ext.9. Thus in comparison of
Exts.9 & 11, the amount mentioned in Ext.11 appears more
authentic with the support of P.W.3. So it would be more prudent
to accept Ext.11 as the actual salary received by the deceased on
the date of his death in comparison to Ext.9.
10. Ext.11 reveals monthly gross salary at Rs.21815/- and
professional tax of Rs.125 for the month of April, 2017.
Therefore the income of the deceased is appearing at Rs.21815.00
- Rs.125.00 = Rs.21690. The other parts of the computation made
by the learned Tribunal being not disputed, the calculation is
made as follows:
Sl. Heads Calculation
No.
(i) Actual monthly income of the Rs.21690/-
deceased after deduction of
professional tax.
(ii) Actual annual income of the Rs.21690/- x 12
deceased. =Rs.2,60,280
(iii) Total amount after addition of Rs.2,60,280 +
15% of (ii) above as future Rs.39,042
prospects. =Rs.2,99,322
(iv) 1/3rd of (iii) as personal and Rs.2,99,322 x 1/3 =
living expenses of the deceased Rs.99,774
per annum.
(v) Annual contribution to the Rs.2,99,322 -
family after 1/3rd deduction Rs.99,774 =
towards personal and living Rs.1,99,548
expenses of the deceased.
(vi) Compensation after application Rs.1,99,548 x 11 =
of multiplier 11. Rs.21,95,028
(vii) Addition of Rs.15,000/- towards Rs.21,95,028 +
loss of estate. Rs.15,000 =
Rs.22,10,028
(viii) Addition of Rs.15,000/- towards Rs.22,10,028 +
funeral expenses of the deceased. Rs.15,000 =
Rs.22,25,028
(ix) Addition of Rs.40,000/- towards Rs.22,25,028 +
loss of consortium. Rs.40,000 =
Rs.22,65,028
(x) Addition of Rs.30,000/- towards Rs.22,65,028 +
loss of love and affection Rs.30,000 =
Rs.22,95,028
(xi) Addition of Rs.5372/- towards Rs.22,95,028 +
cost of medicines purchased Rs.5,372
during treatment. =Rs.23,00,400
(xii) Total compensation amount Rs.23,00,400/-
11. The Insurance Company is directed to deposit the entire
modified amount along with interest @ 6% p.a. from 30.6.2017
before the learned Tribunal within a period of eight weeks from
today and the same shall be disbursed to the claimants on the
same proportion and terms as directed by the learned Tribunal.
12. 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.
13. Both the appeals are disposed of.
14. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
