Orissa High Court
Mukta Sanda And Another vs Somanath Swain And Others on 16 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.1260 of 2016
Mukta Sanda and Another .... Appellants
Mr. P.K. Nayak, Advocate
-versus-
Somanath Swain and Others .... Respondents
Mr. B.P. Das, counsel for Respondent No.2
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
16.8.2022
Order No.
06. 1. The matter is taken up through hybrid mode.
2. Heard Mr. P.K. Nayak, learned counsel for the Appellants and
Mr. B.P. Das, learned counsel for insurer - Respondent No.2.
3. Present appeal by the claimants is against the impugned
judgment dated 8th August, 2016 of the learned 3rd MACT, Rourkela
passed in MAC Case No.350 of 2015 wherein compensation to the
tune of Rs.9,06,790/- along with interest @ 6% per annum from the
date of filing of the claim application has been granted on account of
death of deceased Ashok Sanda in the motor vehicular accident dated
4th December, 2015.
4. It is submitted by Mr. Nayak, learned counsel for the claimants
that the tribunal while fixing the negligence has observed that the
deceased contributed to the extent of 70% towards the cause of
accident, which is completely erroneous.
5. Mr. Das, learned counsel for the insurer on the other hand
submits that since the deceased by riding the motor cycle dashed
behind the offending Bolero vehicle, the tribunal has rightly
contributed 70% negligence on the deceased.
6. Upon hearing both parties and perusal of the impugned
judgment it reveals that no eye-witness of the accident was examined
from either side. The claimants examined one witness only, who is the
wife of the deceased and not an eye witness. No further evidence
except the copies of F.I.R. and police papers were produced before the
tribunal in support of the cause of accident. The insurer did not
adduce any evidence. But the tribunal fixed 70% negligence on the
deceased only for the reason that the deceased dashed the offending
vehicle from behind.
7. The case of the claimants is to the effect that at the time of
accident as the offending Bolero suddenly stopped on the road before
a hump, the deceased who was riding the motor cycle dashed against
it by losing his balance. The F.I.R. story goes in the same line that the
offending vehicle stopped by applying sudden brake. Here it is
submitted by Mr. Das that the deceased rider of the motor cycle was
not maintaining safe distance from the Bolero and therefore the
accident happened. Such contention of Mr. Das is not found
convincing in absence of any evidence adduced from the side of the
insurer. Admittedly charge-sheet has been submitted against the driver
of the offending Bolero in the police case for criminal prosecution
under Section 279/304-A of I.P.C. This fact is not disputed and the
evidence of the wife of the deceased suggests that the accident was the
result of entire negligence on the part of the driver of the offending
Bolero as it suddenly stopped on the road after overtaking the motor
cycle of the deceased. Thus, considering all such evidence brought on
record, particularly the evidence of the wife of the deceased supported
with the contention of the FIR and the charge-sheet submitted against
the driver of the Bolero, the finding of the tribunal regarding
attribution of composite negligece on the deceased to the extent of
70% is unsustainable. It is reiterated here that in absence of any
material to shift composite negligence on the deceased, the tribunal
has committed gross error in concluding about 70% negligence on the
part of the deceased. As such, the finding of the tribunal to that effect
is set aside.
8. Accordingly it is concluded that the driver of the offending
Bolero vehicle had the entire negligence for the cause of accident.
9. Since the income aspect of the deceased is not disputed, who
was an employee of South-Eastern Railway, this court accepts the
calculation of income made by the tribunal at paragraph 9 of the
impugned judgment and the loss of dependency determined thereof.
The tribunal has calculated the total loss of dependency to the tune of
Rs.26,05,968/-. But while doing so, it has not added future prospects.
So recalculating the same by addition of Rs.3,90,895/- towards future
prospects to the extent of 15%, and further sum of Rs.2,40,000/-
towards consortium to the claimants and Rs.30,000/- towards general
damages, the total compensation is determined at Rs.32,66,863/-.
10. It is submitted at the Bar that Rs.9,06,790/- along with interest
@ 6% per annum in terms of the direction of the tribunal has already
been paid to Claimant No.1 and 3. But no compensation has been paid
to claimant Nos.2, 4, 5 and 6 as in the opinion of the tribunal they are
not the dependents of deceased being married son and daughters. Such
finding of the tribunal that claimant Nos.2, 4, 5 and 6 are not entitled
for any compensation is set aside being found untenable in view of the
law settled on the issue {see: National Insurance Company Limited
vs- Birender and others, (2020) 11 SCC 356}. It is thus held that all
the claimants are entitled for compensation.
11. In the result, the appeal is disposed of with a direction to the
insurer - Respondent No.2 to deposit the balance compensation
amount of Rs.23,60,073/- (twenty-three lakh sixty thousand seventy-
three) before the tribunal along with interest @ 6% per annum from
the date of filing of the claim application within a period of two
months from today; where-after the same shall be disbursed in favour
of all the claimants equally on such terms and proportion to be
decided by the Tribunal.
12. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
