Orissa High Court
The Divisional Manager vs Smt. Chandrama Perisika And ... on 21 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.173 of 2016
MACA No.173 of 2016 & 568 of 2016
The Divisional Manager, Oriental
Insurance Company Ltd. (in MACA No.173/2016)
Chandrama Perisika and Others (in MACA No.568/2016)
.... Appellants
Mr. Mohan Ch. Nayak, Advocate (in MACA No.173/2016)
Mr. Ramesh Ch. Pradhan, Advocate (in MACA No.568/2016)
-versus-
Smt. Chandrama Perisika and Others (In MACA No.173/2016)
Jagannath Samantaray and Another (In MACA No.568/2016)
.... Respondents
Mr. Ramesh Ch. Pradhan, counsel for Respondents 1 to 4
(in MACA No.173 of 2016)
Mr. Mohan Ch. Nayak, counsel for Respondent No.2
(in MACA No.568 of 2016)
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
21.12.2022
Order No.
07. 1. The matters are taken up through hybrid mode.
2. Heard Mr. M.C. Nayak, learned counsel for the insurer and Mr.
R.C. Pradhan, learned counsel for claimants.
3. Both the appeals being arise out of same impugned judgment,
are heard together and disposed of by this common order.
4. Both the appeals are directed against the impugned judgment
dated 2nd November, 2015 of learned 7th MACT, Bhubaneswar passed
in MAC Case No.105/3203 of 2014, wherein compensation to the
tune of Rs.8,16,500/- along with interest @ 9% per annum from the
date of filing of the claim application has been granted on account of
death of the deceased Sanyasi Perisika in the motor vehicular accident
dated 23rd September, 2012.
5. In MACA No.173 of 2016 filed by the insurance company the
impugned award has been challenged mainly on the ground that the
accused driver did not have a valid licence on the date of accident to
drive a commercial vehicle and secondly, the income of the deceased
has been fixed at higher side.
6. The claimants have come up in appeal in MACA No.568 of
2016 praying for enhancement of the compensation amount on the
ground that the age of the deceased has been wrongly taken as 57
years instead of 44 years. Further the tribunal did not add any future
prospects to the income of the deceased. I.A. No.1067 of 2022 has
been filed by the claimants to adduce the copy of the school admission
register of the deceased obtained under the RTI Act, as additional
evidence in support of age proof of the deceased. The same being
found authentic as granted by the competent authority under the RTI
Act and no objection raised the same, is accepted on record.
7. Mr. Nayak, learned counsel contends on behalf of the appellant
that the driver though had a licence in respect of a light motor vehicle
but did not have authorization to drive a commercial vehicle. This
submission of Mr. Nayak to invalidate the DL of the accused driver
has no force keeping in view the definition contained under Section
2(21) of the MV Act. The offending vehicle is an Ambassador car
bearing registration number OR 02 AD 9020 and therefore, the
driving licence of the accused driver cannot be termed as invalid.
8. With regard to quantum of compensation, it is seen from the
impugned judgment that in absence of any document adduced from
the side of the claimants the tribunal relied on the entry recorded in
the post mortem examination report to determine the age of the
deceased as 57 years and before arriving at such conclusion the
tribunal rejected the evidence given from the side of the claimants
under Ext.7, i.e. the copy of the school leaving certificate, on the
ground that the same is a Photostat copy. In view of the copy of
school admission register produced before this court, the date of birth
of the deceased is seen to be 3rd April, 1968. The date of accident
being 23rd September, 2012, his age is thus was 44 years on the date
of accident. Accordingly, the future prospect to the extent of 25%
needs to be added to the income of the deceased and the multiplier
would be '14'.
9. It needs to be mentioned here that the deceased is stated to be a
hotelier having hotel business, But the same has been disbelieved by
the tribunal in absence of any documentary evidence. It is true that the
consistent case of the applicants is that the deceased was earning
Rs.10,000/- per month from hotel business. P.W.2 has stated in his
evidence that he was working as a helper in the hotel of the deceased.
But no other details regarding hotel business of the deceased has
either been stated by P.W.1, the son or by P.W.2. Therefore, the
approach of the tribunal to fix his income at Rs.6000/- per month on
guess work is not seen with any infirmity. Here the submission of Mr.
Nayak, learned counsel for the Appellant to treat the deceased as an
unskilled labourer is rejected for the reason that in every case of
failure to give details of income, the deceased cannot be treated as a
labourer. When the specific case of the claimants is that the deceased
was having hotel business, though the fact remains that his income
could not be proved with certainty, and such evidence adduced from
the side of the claimants is not rebutted by the insurer either in their
cross-examination or through independent material, the fixation of
income by guess work is permissible. Thus, keeping in view those
evidences and the place of residence of the deceased, the extent of
income of Rs.6000/- as assessed by the tribunal is confirmed.
10. It is further observed here that the extent of deduction towards
personal expenses up-to 1/3rd of the income by the tribunal on the
ground that claimant No.2, Laxmikant is a major son of the deceased
aged about 20 years on the date of accident, and therefore, he is not a
dependent of the deceased, is found unjustified because the status of
the son as a dependent on the income of father is not automatically
changed upon attaining his majority. Specific evidence need to be
adduced for opining someone as dependant on other or not. Moreover,
the law is well settled that even the major sons and daughters of a
deceased are to be treated as dependents. So, the appropriate
deduction would be 1/4th instead of 1/3rd, since there are four
dependents of the deceased.
11. Accordingly the total loss of dependency is determined as
Rs.9,45,000/-. Adding Rs.40,100/- thereto towards medical expenses
as assessed by the tribunal and further adding Rs.1,60,000/- towards
consortium to each claimant and Rs.30,000/- towards general
damages, the total compensation amount is determined at
Rs.11,55,100/-, payable along with interest @ 6% per annum.
12. In the result both the appeals are disposed of with a direction to
the insurance company, i.e. Oriental Insurance Co. Ltd. to deposit a
total compensation of Rs.11,55,100/- (eleven lakhs fifty five thousand
one hundred) 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 claimants on such terms and proportion to be decided by the
learned tribunal.
13. The statutory deposit made by the insurer before this court in
MACA No.173 of 2016 along with accrued interest be refunded on
proper application and on production of proof of deposit before the
tribunal.
14. The copies of documents filed by Mr. Pradhan in course of
hearing are kept on record.
15. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
