Divisional Manager vs Mst.Tusarkanti Bari And Another
2022 Latest Caselaw 7431 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  MACA No.603 of 2016

            Divisional Manager,
            The New India Assurance Co. Ltd.         ....         Appellant
                                                   Mr.A.A.Khan, Advocate


                                        -versus-


            Mst.Tusarkanti Bari and another       ....       Respondents
                                 Mr.K.K.Jena on behalf of Mr.P.K.Nayak,
                                          Advocate for Respondent No.1

                        CORAM:
                        JUSTICE B. P. ROUTRAY

                                      ORDER

15.12.2022 Order No.

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

2. Heard Mr.Khan, learned counsel for the Appellant-

Insurer and Mr.Jena on behalf of Mr.Nayak, learned counsel for

claimant-Respondent No.1.

3. Present appeal by the Appellant is against the judgment

dated 10th February, 2016 of the Addl. District Judge-Cum-3rd

MACT, Jharsuguda, in M.A.C.Case No.8 of 2013, wherein

compensation to the tune of Rs.17,01,079/- has been granted

along with interest @7.5% per annum with effect from the date of

filing of the claim application on account of death of the

deceased, namely, Gadadhar Barik in the motor vehicular

accident on 17th February, 2007.

4. Mr. Khan submits for the Appellant that the vehicular

accident took place on 17th February, 2007 and the deceased died

on 29th August 2009. He further submits that according to the

claimant, the deceased died due to fall in a stone quarry when he

had been there to attend call of nature and therefore, there is a no

nexus between his death and the accident. But the Tribunal by

connecting the both unreasonably has directed for payment of

compensation with the conclusion that the deceased died due to

motor vehicular accident.

5. Mr. Jena, submits for the claimant that the deceased

after the accident was under continuous medication and due to the

effect of injury sustained in the accident he remained drowsy all

the time, which resulted his fall while attending the call of nature.

Therefore, it is not correct to say that the deceased did not die due

to injuries in the accident.

6. It is seen that on 17th February, 2007 the deceased

sustained injuries in the motor vehicular accident involving the

offending vehicle i.e., the Truck bearing registration No. OR-23-

A-1086. In the said accident he sustained one aberration and one

laceration over the occipital area of the scalp as per the injury

report prepared under Ext.3. Subsequently due to such injury

sustained by him on the head he was under continuous treatment

and as per the evidence of P.W.1 - the claimant, the deceased was

under continuous treatment due to the effect of injuries on his

head sustained in the accident. His head was reeling

continuously.

7. It is further seen that, Brajarajnagar P.S. Case No. 40

dated 17th February, 2007 was registered concerning the accident,

wherein police submitted that charge-sheet against the driver of

the offending vehicle for commission of offence under Sections

279/337/338 of the IPC and concerning his subsequent death,

Brajarajnagar U.D. P.S. Case No. 29th August, 2009 was

registered, wherein police submitted the report upon completion

of inquiry that the deceased died due to fall from height and

hitting to the hard and pointed surface. It is now required to

examine the nexus between his death due to fall subsequently on

29th August, 2009 and effect of injury sustained in the accident

dated 17th February, 2007. As per the report under Ext.3, it is

mentioned that the patient remained drowsy and did not respond

to any command. Admittedly, except P.W.1, the widow

(claimant) of the deceased, no other witnesses has been examined

to support the claim. The claimant though did not bother to

examine any treating doctor, but under Exts.16 & 17, several bills

and treatment papers of the deceased in Kalinga Hospital have

been filed.

8. Here Mr. Khan submits that the deceased was an

employee of Mahanadi Coalfields Limited and after his accident

on 17th February 2007, he used to attend his office regularly. In

this regard, Misc. Case No. 1302 of 2016 has been filed praying

to adduce the information supplied by Mahanadi Coalfields

Limited about availing of 51 days leave by the deceased during

February 2007 to August 2009, as additional evidence. The same

is taken on record accepting the prayer.

9. Perusal of Ext.3 and other medical papers under Ext.16

series reveals that the deceased was under continuous treatment

for the injury sustained by him in the accident dated 17th

February, 2007. It is not disputed that the deceased was also

attending his normal work during such period. The effect of

injury resulting head reeling often is clearly established from

Ext.3 and Ext.16. It is also true that knowing his condition, the

deceased had been to an outer open place, that too the premises of

stone quarry which is a risky and vulnerable place, to defecate. It

is not that, the deceased could not have avoided such risky place,

particularly keeping in view his health condition. So it can safely

be opined that, for the cause of fall of the deceased in the stone

quarry resulting his death, not only the effect of injury sustained

in the accident but also the deceased himself is responsible. In

other words, the deceased contributed for the cause of his own

death. Such contribution, in the opinion of this court, is to the

extent of 50%. Therefore the conclusion arrived at by the

Tribunal to attribute entire cause to the injuries sustained in the

motor vehicular accident is found unjustified.

10. However, present insurer does not dispute his liability

to indemnify the owner in terms of the policy. Accordingly the

amount of compensation is required to be quantified. Taking note

of the expenses incurred by the deceased for his medical

treatment, a sum of Rs.94,509/- as assessed by the Tribunal, is

liable to be granted in favour of the claimant. So far as the loss of

dependency is concerned, 50% of the amount as calculated by the

Tribunal is liable to be granted in favour of the claimant. The

Tribunal has computed a total loss of dependency to the tune of

Rs.14,61,570/- and 50% of the same comes to Rs.7,30,785/-.

Further adding Rs.35,000/- towards consortium and general

damages, the total compensation amount is determined at

Rs.8,60,294/-, payable along with interest @6% per annum.

11. The appeal is thus disposed of with a direction to the

Insurer-Appellant to deposit the compensation of Rs.8,60,294/-

(Eight lakhs sixty thousand two hundred ninety four) 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 the

claimant on such terms and proportion to be fixed by the

Tribunal.

12. The statutory deposit made by the Appellant 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. Copies of exhibits filed by Mr.Khan in course of

hearing are kept on record.

14. Urgent certified copy of this order be granted on proper

application.

( B.P. Routray) Judge C.R.Biswal