Orissa High Court
The Divisional Manager vs Sabita Mohapatra And Others (In ... on 1 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.366 of 2020
MACA Nos.366 & 512 of 2020
The Divisional Manager, New India
Assurance Company Ltd (in MACA No.366/2020)
Sabita Mohapatra and Others (in MACA No.512/2020)
.... Appellants
Mr. Subrat Satpathy, Advocate (in MACA No.366/2020)
Mr. B.N. Samantaray, Advocate (in MACA No.512/2020)
-versus-
Sabita Mohapatra and Others (In MACA No.366/2020)
Sanjaya Parida and Another (In MACA No.512/2020)
.... Respondents
Mr. B.N. Samantaray, counsel for Respondents 1-4
(in MACA No.366/2020)
Mr. Subrat Satpathy, counsel for Respondent No.2
(in MACA No.512/2020)
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
1.8.2022
Order No.
05. 1. The matters are taken up through hybrid mode.
2. Both the appeals being arise out of the same judgment, are
heard together and disposed of by this common order.
3. Heard Mr. S. Satpathy, learned counsel for the insurer and Mr.
B.N. Samantaray, learned counsels for claimant.
4. MACA No.366 of 2020 is filed by the insurer challenging the
award whereas MACA No.512 of 2020 has been filed by the
claimants praying for enhancement of the compensation amount.
5. Learned 1st MACT, Cuttack in the impugned judgment dated
24th December, 2019 passed in MAC Case No.286 of 2016 has
directed on account of death of deceased Nabakishore Mohapatra in
the motor vehicular accident dated 6th March, 2016 for payment of
compensation in favour of the claimants to the tune of Rs.43,78,084/-
along with interest @ 6% per annum from the date of filing of the
claim application, i.e. 21st April, 2016.
6. Mr. Satpathy, learned counsel for the insurer submits while
advancing his challenge that, the offending vehicle, i.e. Indica Car
bearing registration number OR-05-W-1670 has been implanted in the
accident to manage compensation though the same was not involved.
It is further stated that since the deceased was serving as a Sub-
Inspector of Police in Lalbag Police Station on the date of accident,
police has successfully implanted the offending vehicle in the
accident.
7. Mr. Satpathy further submits that with regard to quantum of
compensation, the tribunal has committed error in granting future
prospects in favour of the claimants because a vigilance case was
pending against the deceased at the time of death. So, his further
continuance in service was at stake and as such the claimants are not
entitled for any future prospects. Mr. Satpathy further submits that
since the son of the deceased has been employed under rehabilitation
assistance scheme due to the death of deceased and the wife is also
getting family pension, no future prospects should be granted on that
ground.
8. On the other hand Mr. Samantaray, learned counsel for the
claimants submits in his reply, without disputing pendency of the
vigilance case against the deceased, that, the said case abated upon
death of the deceased and therefore the dependents cannot be deprived
of the future prospects which they are entitled to on the income of the
deceased. Mr. Samantaray further contends that getting provisional
pension by the wife and employment under rehabilitation assistance
scheme for the son would not disentitle the dependents from getting
future prospects on the income of the deceased.
With regard to allegation of implication of the offending
vehicle in the accident, he denies the same and further submits that in
absence of any proof adduced on the part of the insurer to that effect,
the same should be rejected.
9. Mr. Samantaray further contends that the learned tribunal while
calculating the monthly income of the deceased has erroneously
computed the same at Rs.41,258/-, which was pre-revised pay and the
actual salary after revision of pay is Rs.55,200/-. On this ground Mr.
Samantaray prays for enhancement of the compensation.
10. On the backdrop of such rival contentions of both parties,
coming first to deal with the challenge with regard to alleged
implantation of the offending vehicle in the accident, the same is
based on some contents made in Ext.10. As per Ext.10, the outpatients
slip of Aswini Hospital, it is mentioned therein that the alleged head
injury in the road traffic accident is due to collision of motorbike to
the side fence of the road at Phulnakhara, BBSR. Admittedly, this
entry in Ext.10 is made by a staff of Aswini Hospital, which is a
private hospital. The author of said document, who has made such
entry, has not been examined. It is also not known where from he got
such knowledge. Admittedly no evidence has been adduced from the
side of the insurer to substantiate such contention. Thus, in absence of
any specific evidence regarding the same, such entry made in Ext.10
cannot be accepted as admissible evidence.
11. Mr. Satpathy further contends that the F.I.R. was lodged two
days after the accident and as the deceased was a police officer, all
such manipulations have been made showing involvement of the
offending vehicle in the accident. These are without any substance. It
is for the reason that those are all presumptions only and nothing has
been mentioned to that effect either in the F.I.R. or in the police
investigation report and admittedly, charge-sheet has been submitted
against the accused driver to face the criminal prosecution. Therefore,
all such contentions raised to disbelieve involvement of the offending
vehicle in the accident are rejected.
12. Next coming to the question of grant of future prospects Mr.
Satpathy harps on the pending vigilance case against the deceased to
deprive the dependents from getting any addition of future prospects
to the income. The information obtained under the RTI Act under
Ext.F reveals that a vigilance case was pending against the deceased.
Mr. Samantaray, learned counsel for the claimants does not dispute
pending vigilance case against the deceased on the date of accident.
The submission made on behalf of the claimants that the vigilance
case has been abated upon death of the deceased, is not proved on
record. No such document or material is produced to reveal that the
vigilance case has been abated. Nevertheless, the admitted fact
remains that a vigilance case was pending against the deceased on the
date of accident and on the date of his death. The principles on future
prospects as discussed by Hon'ble Supreme Court in the case of Sarla
Verma v. DTC, (2009) 6 SCC 121 and National Insurance Company
Ltd. v. Pranay Sethi and Others (2017) 16 SCC 680, is regarding
increase of income in the career, where there is a permanent job,
keeping in view the principles of certainty, stability and consistency.
Admittedly, if a vigilance case was continuing against the deceased
there is every chance of conviction against him which may have
resulted termination of his service also. Such probability of
termination in view of pendency of the vigilance case against the
deceased would definitely operate as a hurdle against him not only for
his future career progress but also his future continuance in service.
So the probability of certainty and stability in future service career of
the deceased is diminishied. In such situation, addition of future
prospects to the income of the deceased is not felt appropriate.
Therefore, it is held that the claimants are not entitled for any addition
of future prospects to the income of the deceased.
13. Next coming to the dispute with regard to income of the
deceased, it reveals from Ext.8 that the pay of the deceased has been
revised under ORSP Rules, 2017 fixing at Rs.55,200/- per month with
effect from 1st January, 2016 and the next date of increment was 1st
October, 2016. Therefore, the date of accident being on 6th march,
2016, it is established that the deceased was getting Rs.55,200/- per
month on the date of his death. However, learned tribunal took the
monthly income of the deceased at Rs.41,258/-, which was in the pre-
revised scale, by saying that on the date of death the pay of the
deceased was not revised and he was getting Rs.41,258/- only. But it
is clear from Ext.8 that he got Rs.55,200/- retrospectively upon
revision of his pay on a later date, i.e. in January, 2018. Therefore, it
is appropriate to take his salary at Rs.55,200/- per month for the
purpose of determining his income.
14. As earlier stated, the deceased is not entitled for any future
prospects and therefore his annual income comes to Rs.6,62,400/- (i.e.
Rs.55,200/- X 12). Deducting Rs.2500/- towards professional tax and
Rs.14,980/- towards income tax (as per the prevailing slab for the AY
2015-16), it comes to Rs.6,44,920/-. After deducting 1/4th towards
personal expenses, the annual loss of dependency comes to
Rs.4,83,690/-. Taking the age of the deceased in the age group of 51-
55 years, which is not disputed by both parties, multiplier '11' is
found applicable. Thus the total loss of dependency comes to
Rs.53,20,590/-. Adding consortium of Rs.40,000/- to each of the
claimants (for claimant No.1 spousal consortium and for other
claimants parental consortium) and Rs.30,000/- towards general
damages, the total compensation amount comes to Rs.55,10,590/-.
15. In the result the insurer, i.e. New India Assurance Co. Ltd.
(Appellant in MACA No.366 of 2020 and Respondent No.2 in MACA
No.512 of 2020) is directed to deposit total compensation of
Rs.55,10,590/-(fifty-five lakhs ten thousand five hundred ninety)
before the tribunal along with interest @ 6% per annum from the date
of filing of the claim application, i.e. 21st April, 2016 within a period
of two months from today; where-after the same shall be disbursed in
favour of the claimants on such terms and proportion to be fixed by
the learned Tribunal.
16. However, this court has not disturbed the right of recovery as
granted by the Tribunal in the impugned judgment.
17. The statutory deposit made by the insurer - Appellant in MACA
No.366 of 2020 before this court along with accrued interest be
refunded to the insurer on proper application and on production of
proof of deposit of the awarded amount before the tribunal.
18. Both the appeals are disposed of.
19. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
