Orissa High Court
The Divisional Manager vs Minakhi Sahoo And Others (In Maca ... on 8 April, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.165 of 2021
MACA Nos.165 of 2021 & 793 of 2020
The Divisional Manager,
M/s. National Insurance Co. Ltd. (In MACA No.165/2021)
Minakhi Sahoo and Others (In MACA No.793/2020)
.... Appellants
Mr. P. K. Mohanty, Advocate (in MACA No.165/2021)
Mr. P.K. Mishra, Advocate (in MACA No.793/2020)
-versus-
Minakhi Sahoo and Others (In MACA No.165/2021)
Jagabandhu Sahoo and Another (In MACA No.793/2020)
.... Respondents
Mr. P.K. Mishra, counsel for Respondents 1-3
(in MACA No.165/2021)
Mr. P.K. Mohanty, counsel for Respondent No.2
(in MACA No.793/2020)
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
8.4.2022
Order No.
I.A. No.1423 of 2020 arising out of MACA No.793 of 2020
05. 1. The Appellants being claimants are exempted from payment of
court fees for the time being.
2. The I.A. is disposed of.
MACA Nos.165 of 2021 and 793 of 2020
06. 3. Heard Mr. P.K. Mohanty, learned counsel for the insurer and
Mr. P.K. Mishra, learned counsel for the claimants.
4. Both the appeals are against the same impugned judgment dated
11th December, 2020 of learned 1st MACT, Cuttack passed in MAC
No.1045 of 2016 wherein compensation to the tune of Rs.9,20,000/-
along with interest @ 6% per annum from the date of filing of the
claim application, i.e. 28th December, 2016 has been granted on
account of death of the deceased in the motor vehicular accident dated
2nd December, 2016.
5. Mr. Mohanty submits on behalf of the insurer that the driver of
the offending vehicle, i.e. motor cycle bearing registration number OD
34 B 0390 being one of the claimants as the son of the deceased, is not
entitled for any compensation. It is also contended that the monthly
income of the deceased as counted by the learned Tribunal is
erroneous and the income of the deceased cannot exceed Rs.5000/-
per month. It is also submitted by Mr. Mohanty that the age of the
deceased is 46 years on the date of accident as per his Adhar Card and
as such multiplier '13' should be applied instead of '14'.
6. Conversely it is submitted by Mr. Mishra, learned counsel for
the claimants that the monthly income of the deceased should be fixed
at Rs.6,216/- taking the minimum prescribed rate of wages at
Rs.207.20 per day for unskilled labourer on the date of accident, i.e.
2nd December, 2016.
7. Admittedly, claimant No.2- Susanta Kumar Sahoo (present
Respondent No.2 in MACA No.165 of 2021 and Appellant No.2 in
MACA No.793 of 2020) has been charge-sheeted as the accused to
face the criminal prosecution for negligence in causing the accident.
Therefore, he being the accused for the offence under Section
279/304-A of the I.P.C. concerning the accident is not entitled for
compensation for the death of the deceased.
8. Coming to the challenges on the quantum of compensation as
advanced by both parties, it is seen that the age of the deceased as per
Aadhaar Card is not proved on record. Since no specific date of birth
of the deceased or any document with regard to date of birth of the
deceased including the Aadhaar Card has been proved on record, the
contention of the insurer that the deceased should be treated at 46
years of age cannot be accepted and the finding of the learned tribunal
to treat his age at 45 years based on the PM report cannot be faulted
with. Therefore, the question of any inappropriate application of
multiplier does not arise and the application of multiplier '14' as taken
by the Tribunal is confirmed.
9. So far as the income of the deceased is concerned, it is the case
of the claimants that the deceased was earning Rs.3000/- per month
doing transport business. But admittedly, no documentary proof could
be adduced in that support and therefore, the Tribunal has fixed his
income taking him as a daily labourer in absence of any proof
regarding income or profession. Undisputedly, the prevalent rate of
wages prescribed on the date of accident was Rs.207.20 per day as per
SRO No.323/2016 dated 28th June, 2017. Therefore the finding of the
Tribunal to determine the income of the deceased at Rs.5,500/- per
month on notional basis is liable to be interfered with. By taking the
income of the deceased at Rs.6216/- per month @ Rs.207.20p. per
day, the amount of compensation is enhanced to Rs.9,80,000/-
keeping in view that claimant No.2 is not entitled for any amount
including Rs.40,000/- towards parental consortium granted by the
Tribunal.
10. In result, the appeal is disposed of with a direction to the insurer
- Appellant in MACA No.165 of 2021 and Respondent No.2 in
MACA No.793 of 2020 to deposit a total compensation of
Rs.9,80,000/- (nine lakh eighty thousand) before the tribunal along
with interest @ 6% per annum from the date of filing of the claim
application, i.e. 28th December, 2016 within a period of two months
from today; where-after the same shall be disbursed in favour of the
claimant Nos.1 and 3, namely Minakhi Sahoo and Subrat Kumar
Sahoo on such terms and proportion to be decided by the learned
Tribunal including reapportionment.
11. The statutory deposit made by the insurer - Appellant in
MACA No.165 of 2021 before this court along with accrued interest
be refunded on proper application and on production of proof of
deposit of the awarded amount before the tribunal.
12. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
