M/S.New India Assurance Co. Ltd vs Raghab Baral And Others
2022 Latest Caselaw 7000 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                 MACA No.367 of 2021 And MACA No.186 of 2021


             MACA No.367 of 2021
             M/s.New India Assurance Co. Ltd.     ....        Appellant
                                           Mr.S.Sudhakar Rao, Advocate

                                        -versus-

             Raghab Baral and others              ....     Respondents
                     Mr.B.P.Mohanty, Advocate for Respondent Nos.1 to 5

                                        AND

            MACA No.186 of 2021
            Raghab Baral and others                   ....       Appellants
                                                   Mr.B.P.Mohanty, Advocate

                                        -versus-

            Bidyadhara Patra and another          ....       Respondents
                        Mr.S.Sudhakar Rao, Advocate for Respondent No.2

                        CORAM:
                        JUSTICE B. P. ROUTRAY

                                      ORDER

01.12.2022 Order No.

06. 1. The matter is taken up through Hybrid mode.

2. Heard Mr.Rao, learned counsel for the Insurer and

Mr.Mohanty, learned counsel for the claimants.

3. Both the appeals arise out of the same judgment dated

23rd March, 2021 passed by the learned 2nd Additional District &

Sessions Judge-cum-4th M.A.C.T., Puri, in M.A.C. Case No.231-

219 of 1995-1992, wherein compensation to tune of Rs.2,44,750/-

along with interest @6% per annum has been granted from the

date of filing of the claim application on account of death of the

deceased in the motor vehicular accident dated 17th February,

1992.

4. MACA No.367 of 2021 has been filed by the Insurance

Company. Mr. Rao for the Insurer submits that the policy was not

valid on the date of accident as the premium for the policy was

paid on the next day of the accident. He further questions the

quantum of compensation as erroneous and excessive high.

5. MACA No.186 of 2021 has been filed by the claimants

praying for enhancement of the compensation amount on the

ground that no consortium has been granted to the children. The

widow of the deceased died during pendency of the claim

application and she was deleted.

6. It is seen that three witnesses were examined on behalf

of the claimants and no oral evidence has been adduced from the

side of the Insurer. Along with the police papers, a copy of the

Insurance policy has been adduced under Ext.F by the Insurer.

Perusal of the same, as produced in course of hearing by Mr.Rao,

reveals that the policy commenced from 17th February, 1992 and

was valid till 16th February, 1992. The date of accident is 17th

February, 1992. Mr. Rao has filed I.A.No.822 of 2021 along with

a copy of the premium payment register to substantiate his

contention. Said copy of the register, as sought to be adduced by

way of additional evidence, is a Photostat copy and no evidence

has been adduced to prove the entries made thereof, though the

requirement is that the author should prove the entries thereof by

adducing oral evidence. But here, neither the original register is

produced nor any affidavit of the author is filed. Mr.Rao though

submits that he can produce the original of the said register,

nonetheless, it is true that when the policy itself speaks its' date

of effectiveness from 17th February, 1992 then the same has to be

treated effective from 17th February, 1992 irrespective of the date

of payment of the premium, and in no circumstances it will go

beyond that date. Therefore, the contention raised on behalf of the

Insurer to treat effectiveness of the policy from 18th February

1992, i.e. the next date, has no merit for consideration.

Accordingly, all such contentions raised by Mr.Rao to dispute

validity of the policy on the date of accident is rejected.

7. With regard to quantum of compensation, the claimants

have filed their appeal praying for enhancement of the same. It is

needless to say that the cross appeal filed in MACA No.367 of

2021, i.e. the appeal preferred by the Insurance Company is not

pressed by Mr.Mohanty on behalf of the claimants-Respondents

therein. Accordingly, the said cross-appeal is dismissed as not

pressed.

8. So far as the prayer for enhancement is concerned, it is

seen that all the claimants are the children of the deceased and

therefore, they are certain entitled for grant of consortium as per

settled principles.

9. It is seen that the age of the deceased has been

determined between 51 to 55 years by the Tribunal, which is

disputed by Mr.Rao. According to the postmortem report, he was

60 years. But the Tribunal considering the age of the wife and the

children has taken the age of the deceased between the slab of 51

to 55. This approach of the Tribunal is found erroneous in

absence of any material document. When the age of the deceased

is mentioned as 60 years in the postmortem report it has to be

accepted in absence of any other material. Thus, the finding of the

Tribunal in this regard is modified and the age of the deceased is

determined as 60 years. There being no material dispute with

regard to income, the same is accepted at Rs.1,500/- per month.

Adding future prospectus to the extent of 10% thereto, in terms of

the principles decided in the case of National Insurance

Company Ltd. vrs. Pranay Sethi and others, (2017)16 SCC 680,

the monthly income of the deceased comes to Rs.1,650/-. Taking

the number of dependents as six i.e., five children and wife, 1/4th

is liable to be deducted towards personal expenses. The annual

loss of dependency thus comes to Rs.14,850/-. Applying

multiplier nine, the total loss of dependency comes to

Rs.1,33,650/-.

10. Keeping in view the date of accident, i.e. 17th February,

1992, Rs.10,000/- towards consortium is granted to each children

amounting to Rs.50,000/- in total and Rs.25,000/- towards general

damages. Thus, the total compensation is determined at

Rs.2,08,650/-, payable along with interest @ 6% per annum.

11. In the result, both the appeals are disposed of with a

direction to the Insurer, i.e. M/s. New India Assurance Co. Ltd. to

deposit the modified compensation amount of Rs.2,08,650/-(Two

lakhs eight thousand six hundred fifty) along with interest at the

rate of 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 amongst the claimants (present

Appellants in MACA No.186 of 2021) on such terms and

proportion to be decided by the Tribunal.

12. The statutory deposit made by the Insurer in MACA

No.367 of 2021 with accrued interest thereon be refunded to him

on proper application and on production of proof of deposit of the

award amount before the learned Tribunal.

13. Urgent certified copy of this order be granted on proper application.

( B.P. Routray) Judge

C.R.Biswal