Orissa High Court
Sureswari Tandia And Others vs Ganesh Tandia And Another on 24 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.1055 of 2015
Sureswari Tandia and others .... Appellants
Mr. K.C. Nayak, Advocate
-versus-
Ganesh Tandia and another .... Respondents
Mr. A.A. Khan, Advocate for Respondent No.2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
24.08.2022
Order No.
07. 1. Heard Mr. K.C. Nayak, learned counsel for the Appellants-
claimants as well as Mr. A.A. Khan, learned counsel for
Respondent No.2-Insurance Company.
2. Present appeal by the claimants is directed against judgment
dated 23.06.2015 of learned 4th M.A.C.T., Cuttack in MAC Case
No.22 of 2012/153 of 2015 wherein compensation to the tune of
Rs.1,97,000/- has been granted along with interest @6% per
annum to the claimants from the date of filing of the claim
application on account of death of the deceased in the motor
vehicular accident dated 09.01.2012.
3. It is contended on behalf of the Appellants that the learned
Tribunal has erroneously fixed contributory negligence to the
extent of 50% on the deceased against the evidence adduced by
P.W.2 and has committed further error in computation of the
compensation amount by deducting 1/3rd instead of 1/4th of the
income towards personal expenses. Further, the Tribunal has
failed to add future prospects to the extent of 40%.
4. Upon hearing Mr. A.A. Khan, learned counsel for the
Respondent No.2-Insurance Company and perusal of the
impugned judgment, it reveals that the Tribunal while discussing
under Issue No.1 has though opined against the evidence adduced
by P.W.2 - another eye-witness to the accident, still has failed to
give any concrete finding with regard to negligence on the part of
the driver of the motorcycle. It is seen that as per the evidence of
P.W.2, the deceased was the pillion rider, who fell down due to
the negligence of the driver. Against the same, the FIR, charge-
sheet and other police papers reveals that upon investigation by
the Police, it was found that the deceased himself was driving the
motorcycle. The owner by coming to the witness box examined
himself as OPW-1 and as per him, he gave the motorcycle to one
Sisir Kumar Bhoi. Upon a detailed discussion, the learned
Tribunal has though doubted the story advanced by the claimants
about the fact that the deceased was riding as a pillion in the
motorcycle at the time of accident, but has failed to give any
conclusive finding with regard to negligence on the part of any
other alleged driver of the motorcycle other than the deceased.
However, the learned Tribunal at the end has concluded that the
owner is vicariously liable to pay the compensation amount to the
extent of 50%, indemnifiable by the insurer.
5. Mr. K.C. Nayak contends for the claimants-Appellants that in
such scenario the opinion of the Tribunal for 50% negligence on
the part of the owner is not sustainable because either it would
have fixed the entire negligence or completely discard out the
same from the owner. But such direction of the Tribunal in
respect of contributory negligence to the extent of 50% on the
part of the owner is not sustainable.
6. I am not convinced with such reasoning advanced by Mr.
Nayak. A thorough perusal of the impugned judgment reveals that
the learned Tribunal has though in the opinion that the deceased
was the driver of the motorcycle at the time of accident, but
avoided to give any such conclusive finding on the same. Rather
it chose to contribute 50% negligence only on the deceased for
the cause of the accident. This approach of the Tribunal is though
not appreciated but in absence of any challenge from the side of
the insurer, this Court refrains from giving any further opinion on
the same. Nevertheless in the circumstances, no reason is found to
interfere with the award at the behest of the claimants in their
favour.
7. Accordingly, the other contention with regard to quantum of
compensation is not required to be discussed with because this
Court is not satisfied with the extent of negligence divided
between the owner and the deceased.
8. Resultantly, the appeal is dismissed.
( B.P. Routray)
Judge
B.K. Barik
