Orissa High Court
M/S.Bajaj Allianz General ... vs Rupalata Sahoo And Others on 8 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.968 of 2017
M/s.Bajaj Allianz General Insurance
Company Limited .... Appellant
Mr.G.P.Dutta, Advocate
-versus-
Rupalata Sahoo and others .... Respondents
Mr.Debasish Patnaik, Advocate for Respondent Nos. 1 to 3
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
8.2.2022
Order No.
7. 1. Heard Mr.Dutta, learned counsel for the Appellant and
Mr.Pattnaik, learned counsel for Respondent Nos.1 to 3.
2. The Insurer in the present appeal has challenged the
judgment/award dated 28th July, 2017 passed by learned 3rd
M.A.C.T., Jagatsinghpur in M.A.C.No.06 of 2012, wherein the
Tribunal has directed for payment of compensation to the tune of
Rs.14,90,000/- along with interest @7% per annum with effect
from the date of filing of the claim application i.e., 18th January,
2012 on account of the death of the deceased in the motor
vehicular accident dated 24th June, 2011.
3. The case of the claimants is that, the deceased, who
was a businessman having his shop namely 'Jaya Guru shop' at
Jholasahi, Cuttack while returning on the date of accident in his
motorcycle, the offending truck dashed him from behind causing
the injuries resulting his death.
4. Mr.Dutta, learned counsel for the Appellant submits
that in the F.I.R. as well as the inquest report, though no
registration No. of the vehicle was mentioned by the so-called
eyewitness i.e., P.W.2, but subsequently the present vehicle was
planted to make a valid claim for compensation. It is also
submitted that the learned Tribunal has wrongly assessed the
monthly income of the deceased at Rs.12,000/- in absence of any
documentary proof. A further submission is made to the effect
that since the shop of the deceased continued to operate even after
death of the deceased, there cannot be total loss of income on
account of death of the deceased to his dependants.
5. Conversely, Mr.Pattnaik, learned counsel for the
claimants supports the impugned judgment.
6. Upon hearing both parties, it reveals from the
impugned judgment that under Issue Nos.2 & 3, the learned
Tribunal has dealt with the involvement of the offending vehicle
in the accident. It is seen that P.W.2 was the eyewitness and all
the police papers including copy of the F.I.R., chargsheet etc.
have been relied upon by the claimants to prove involvement of
the offending vehicle in the accident resulting death of the
deceased. P.W.2 has described himself as the eyewitness to the
accident and categorically said involvement of the offending
vehicle in the accident. For the reason of some discrepancy in the
statement of P.W.2 regarding non-mention of the registration
number of the offending vehicle at the first instance, his entire
evidence cannot be discarded as untrustworthy. The learned
Tribunal has discussed in detail the evidence of said P.W.2 vis-à-
vis the police papers filed on behalf of the claimants to conclude
the involvement of the vehicle in question in the accident. Thus,
no irregularity or illegality is seen to disturb said finding of the
learned Tribunal.
7. Next coming to the quantum of compensation, it is seen
that the claimants in support of the same has adduced oral
evidence of the widow i.e. P.W.1 and filed Saral Forms for the
assessment year 2004-05 & 2005-06 and the I.T. return for the
financial year 2011-12. Apart from that, registration certificate of
the dealership of the shop by the Sales Tax Authority has also
been filed under Ext.10. Admittedly all such documents do not
disclose the exact income and expenditure of the shop. In other
words those documents do not disclose any specific income of the
deceased. In such situation the learned Tribunal has taken the
income of the deceased at Rs.12,000/- per month.
8. It is true that the ownership of the shop namely Jaya
Guru Shop is not disputed by the Insurer-Appellant. As per
evidence of P.W.1-the widow, the deceased was earning
Rs.15,000/- per month after paying the salary of the staff of the
shop. The accounts of profit, loss or expenditure was not
produced by the claimants. In such view of the matter, it is really
difficult to get the exact income of the deceased. As it appears,
the Tribunal has dealt some guess work to determine the income
of the deceased at Rs.12,000/- per month. It is also noticed from
the cross-examination of P.W.1 that she has admitted to have not
filed the original pan card, TIN or SRIN card issued by the Sale
Tax Authority. The documents also do not reveal anything if the
shop was in fact closed after the death of the deceased or still
continued in operation. In such situation, considering the fact that
the deceased was running the shop as its' owner, which was a
readymade garment shop, without getting into further details of
the income, the amount of compensation is reduced to
Rs.12,75,000/- (Twelve lakhs seventy five thousand). This is
agreed by the learned counsel for the claimants - Respondents
and learned counsel for insurer - appellant leaves to the
discretion of the court.
9. Accordingly, the Appellant-Insurer is directed to
deposit the compensation amount of Rs.12,75,000/- along with
interest @ 6% per annum from the date of filing of the claim
application i.e., 18th January, 2012 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.
10. Copy of depositions of the witnesses as filed by
Mr.Dutta are kept on record.
11. With the aforesaid modification in the amount, the
appeal is disposed of.
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. Urgent certified copy of the order be granted on proper
application.
( B.P. Routray)
Judge
CRBiswal
