Divisional Manager vs Arati Behera And Others
2022 Latest Caselaw 1095 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   MACA No.811 of 2016

            Divisional Manager, New Indian
            Assurance Co. Ltd.                      ....       Appellants
                                           Mr.Adam Ali Khan, Advocate
                                      -versus-
            Arati Behera and others                 ....     Respondents
                       Mr.P.K.Mishra, Advocate for Respondent Nos. 1 to 3
                             Mr.K.C.Nayak, Advocate for Respondent No.4

                        CORAM:
                        JUSTICE B. P. ROUTRAY
                                       ORDER

7.2.2022 Order No.

10. 1. Heard Mr.Khan, learned counsel for the Appellant and Mr.Mishra, learned counsel for Respondent Nos.1 to 3 as well as Mr.Nayak, learned Advocate for Respondent No.4.

2. The present appeal by the Insurer is directed against the judgment/award dated 31st March, 2010 passed by learned 3rd M.A.C.T., Jagatsinghpur in M.A.C.No.40 of 2010 wherein the Tribunal has directed for payment of compensation to the tune of Rs.6,84,000/- along with interest @7% per annum with effect from 1st February, 2010 i.e., the date of filing of the claim application on account of the death of the deceased in the motor vehicular accident dated 16th July, 2008.

3. The case of the claimants is that, the deceased was serving as a Rice Mill Operator and on 16th July, 2008 while he was returning to his house, the offending vehicle bearing Registration No.OR-05-Z-6456 hit him resulting his death.

4. Mr.Khan, learned counsel for the Appellant submits that involvement of the offending vehicle in the accident is doubtful and the same was planted by the claimants. In support of his submission, it is stated that the F.I.R. was lodged after six days i.e., on 22nd July, 2008 and secondly, the police after investigation has submitted the F.F. stating 'no clue'. Mr.Khan thus submits that the learned Tribunal ignoring the investigating report submitted by the police has come to the conclusion that the same is perfunctory and accordingly held the owner of the vehicle liable for the accident saddling the liability of compensation on the insurer. It is further submitted by Mr.Khan that the learned Tribuanl has also committed illegality in taking the monthly income of the deceased at R.4,000/- in absence of any material to prove his avocation as Rice Mill Operator whereas the minimum wages prescribed for a daily labourer in the year 2008 was Rs.70/- per day and in such case, his monthly income should not exceed Rs.2,100/-.

5. In reply, it is submitted by Mr.Mishra, learned counsel for Respondent Nos.1 to 3 that so far as involvement of the alleged vehicle in the accident is concerned, the learned Tribunal has rightly observed about perfunctory investigation by police. The first thing in support of the same is the admission of the owner before the learned Tribunal about the accident, whereas the investigating officer for the reasons best known to him has stated in the report that the owner has denied about the accident. It is further submitted that when the owner has admitted the accident not only before the Tribunal but before this Court also, the finding of the Tribunal cannot be said as illegal to justify the

contention of the Appellant. Secondly, it is submitted by Mr.Mishra that the deceased was though served as Rice Mill Operator as stated by his wife (P.W.1), but truly no documentary evidence was produced to that effect. However, in terms of the decision rendered by the Supreme Court in the case of Laxmi Devi and Others v. Mohammad Tabbar and Another, AIR (2008) SC 1858, the monthly income should not be less than Rs.3,000/- and for the reason of absence of documentary evidence it cannot be held that the deceased was not serving as such. It is also submitted by Mr. Mishra that the learned Tribunal has not granted any amount towards future prospectus as decided by the Constitutional Bench of the Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680.

6. Mr.Nayak, learned counsel for Respondent No.4 (owner) submits that the offending vehicle was in fact involved in the accident resulting death of the deceased.

7. Upon hearing the parties and perusal of the impugned award, it reveals that under Issue Nos.1 & 2, the Tribunal has decided the question regarding involvement of the vehicle in the accident and the death of the deceased as such. The learned Tribunal has come to the conclusion that the investigation made by the police is perfunctory in nature.

8. Perusal of the evidence of P.Ws.2 and 3, who undisputedly are the eyewitnesses, even as per police report, reveals that, P.W.2 has stated in his evidence that while he was standing near Baisa Sahi Chhak saw the offending vehicle

coming from Bhadrak side with speed in a rash and negligent manner and dashed the cyclist, i.e., the deceased from his backside. The evidence of P.W.3 also goes in the same line to suggest the cause of injury to the deceased in the accident involving the offending vehicle as a result of rash and negligent driving on the part of the driver. The evident of those two witnesses coupled with the admission of the owner (O.P.W.1) is sufficient to conclude the involvement of the offending vehicle in the accident. It needs to be mentioned here that admittedly O.P.W.2, the investigator of the Insurer was neither an eyewitness to the accident nor had any direct knowledge on the same. The contention put forth by Mr.Khan that the sustenance of only head injury by the deceased in such type of accident is not possible is without any supportive merit. It needs to be mentioned that the Insurer has not examined any expert to justify this opinion nor has examined the doctor who conducted the post- mortem examination. As such, the finding of the learned trial court that the death of the deceased was due to rash and negligent driving of the offending vehicle in causing the accident is thus confirmed.

9. Coming to the question of quantum of compensation, it is seen from the evidence of the widow (P.W.1) that her husband was serving as the Rice Mill operator in the rice mill of one Binod Lakhani and getting Rs.5,000/- per month as his salary. It is true that no documentary evidence has been produced on behalf of the claimants nor the owner of the rice mill was examined in that respect to prove the income of the deceased. But that does not entirely discard the contention of the claimants with regard to

avocation of the deceased. In terms of the decision of the Supreme Court in the case Laxmi Devi (supra,) the minimum income of the deceased in such situation to be fixed at Rs.3,000/- per month. Therefore, considering the probability of the contention regarding engagement of the deceased as a rice mill operator in to fix his income at Rs.4,000/- per month cannot be said as completely arbitrary. However, one more aspect to be noted here is that, the Tribunal has though not granted any compensation for future prospects in favour of the claimants, but the scope of this court becomes limited in that respect in absence of challenge by the claimants, and cannot be answered in the present appeal.

10. Thus considering all such circumstances and the evidences brought on record, I do not find any merit in the challenge of the Appellant to reduce the compensation in favour of the Appellant-Insurer. The award amount of Rs.6,84,000/- as directed by the Tribunal thus needs no interference. However, the rate of interest is reduced to 6% per annum.

11. With the aforesaid modification of reduction of rate of interest to 6% per annum, the compensation amount as directed by the learned trial court is confirmed and the appeal is disposed of.

12. The Appellant-Insurer is directed to deposit the entire award amount along with interest @6% per annum from the date of filing of the claim application i.e., 1st February, 2010 within a period of two months from today, where-after the same shall be

disbursed to the claimants on the same terms and conditions as directed by the tribunal in the impugned judgment.

13. Copy of depositions of the witnesses as filed by Mr.Khan are kept on record.

14. 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.

( B.P. Routray) Judge

CRBiswal