Orissa High Court
New India Assurance Co. Ltd vs Rajanirani Rout And Others on 13 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.218 of 2020
New India Assurance Co. Ltd.,
represented by its Manager-cum- .... Appellant
Constituted Attorney, T.C. Cell,
Badambadi, Cuttack
Mr. Nirmal Chandra Mohanty, Advocate
-versus-
Rajanirani Rout and Others .... Respondents
Mr. P.K. Mishra, counsel for Respondents 1 to 3
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
13.12.2022
Order No.
09. 1. The matter is taken up through hybrid mode.
2. Heard Mr. N.C. Mohanty, learned counsel for the insurer -
Appellant and Mr. P.K. Mishra, learned counsel for claimant -
Respondents 1 to 3.
3. Present appeal by the insurer is against the impugned judgment
dated 20th August, 2019 of the learned 1st MACT, Dhenkanal passed
in MAC No.211 of 2017, wherein compensation to the tune of
Rs.9,80,000/- along with interest @ 7% per annum from the date of
filing of the claim application, i.e. 18th October, 2017 has been
granted on account of death of deceased Balaram Rout in the motor
vehicular accident dated 29th July, 2017.
4. The challenge of the insurer is of two-fold. Firstly, Mr.
Mohanty contends that the deceased being an insured person within
the meaning of Employee's State Insurance Act (for short ESI Act),
the present claim application under Section 166 of the MV Act is not
maintainable. Secondly, Mr. Mohanty questions the quantum of
compensation by disputing the multiplier factor.
5. Mr. Mishra, learned counsel for the claimant - Respondents
submits in reply that though undisputedly the deceased is an insured
person within the meaning of Section 2(8) of the ESI Act, but the
accident is no way related to his employment either directly or
incidentally. Therefore, the objection with regard to maintainability of
the claim application under MV Act is without merit.
6. This court in the case of The Divisional Manager, M/s.
National Insurance Company Ltd. v. Anushaya @ Anasuya Biswal
and Others (MACA No.75 of 2021, disposed of on 16th September,
2022), while deciding a similar issue, has held that unless the injury or
death is anyway related to the employment within the sweep of the
ESI Act, the claim for compensation under Section 166 of the MV Act
is not barred.
7. So, keeping in view the principles decided in the aforesaid case,
the objection raised by the insurer with regard to maintainability of
the claim application is rejected.
8. Next coming to the question of quantum of compensation, it is
seen that the deceased was aged about 55 years as per his service
records. But the tribunal has erroneously applied multiplier '14'
taking the age of the deceased as 44 years. The age of the deceased as
per his service record remains undisputed by the claimants before this
court. So, the appropriate multiplier would be '11'. Further, the extent
of future prospectus on the income is reduced to 15%, instead of 25%.
9. Mr. Mishra, learned counsel for the claimants here submits that
the tribunal has taken the income of the deceased at a reduced amount
of Rs.6,500/-, instead of Rs.8045/-, against the evidence adduced by
the claimants. However, such submission raised by Mr. Mishra is not
entertained in absence of any appeal filed from the side of the
claimants. This court refrains from entering into such dispute in
absence of any express challenge in that regard from the side of the
claimants.
10. Mr. Mishra further submits that parental consortium which was
not granted in favour of the children of the deceased should be added
while modifying the compensation amount.
11. Upon hearing both parties on the question of quantum of
compensation and considering all such challenges, a reduced
compensation of Rs.9,00,000/- along with 6% interest is proposed to
the parties. This is agreed by Mr. Mishra, learned counsel for the
claimant - Respondents and Mr. Mohanty, learned counsel for the
insurer leaves it to the discretion of the court. Accordingly the
compensation amount is fixed to the said extent.
12. In the result, the appeal is disposed of with a direction to the
Appellant - insurer to deposit a reduced compensation amount of
Rs.9,00,000/- (nine lakhs) before the tribunal along with interest @
6% per annum from the date of filing of the claim application, i.e. 18th
October, 2017, within a period of two months from today; where-after
the same shall be disbursed in favour of the claimant - Respondents
on such terms and proportion to be decided by the learned tribunal.
13 The statutory deposit made by the insurer - Appellant before
this court along with accrued interest be refunded to the Appellant on
proper application and on production of proof of deposit of the
awarded amount before the tribunal.
14. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
