Orissa High Court
National Insurance Company Ltd vs Bhanumati Pagada And Others on 22 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.585 of 2020
National Insurance Company Ltd. .... Appellant
Mr. Subrat Satpathy, Advocate
-versus-
Bhanumati Pagada and Others .... Respondents
Mr. Amiya Kumar Mohanty, counsel for Respondents 1-4
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
22.02.2022
Order No.
07. 1. Heard Mr. Subrat Satpathy, learned counsel for the insurer -
Appellant and Mr. A.K. Mohanty, learned counsel for the claimant -
Respondents.
2. Present appeal by the insurer is against the impugned judgment
dated 26th November, 2019 of the learned 7th MACT, Bhubaneswar in
MAC No.95 of 2016 wherein compensation to the tune of
Rs.13,93,000/- along with interest @ 7% per annum from the date of
filing of the claim application has been granted on account of death of
the deceased in the motor vehicular accident dated 6th February, 2012.
3. The claimant - Respondents have also filed cross-objection
praying for enhancement of the compensation amount.
4. Mr. Satpathy contends on behalf of the insurer that the learned
Tribunal has committed error in accepting negligence on the part of
the rider of the motor cycle only, though in the police case final form
has been submitted as 'no clue and one unknown vehicle was
involved in the accident'.
5. In reply Mr. Mohanty, learned counsel for the claimants
submits that keeping in view the evidence of eye the witness viz.
P.W.3, the negligence on the part of the rider of the motor cycle was
established and as such no illegality is there in the approach of the
learned Tribunal.
6. Having heard both parties and upon perusal of the impugned
judgment it reveals that the case of the claimants are to the effect that
the deceased while going as a pillion rider in the motor cycle bearing
registration number OR 04 N 8474, one unknown truck coming from
their back dashed the motor cycle. As per the evidence of P.W.3, who
claimed to be an eye witness of the accident, the accident occurred
due to the negligence of the driver of the motor cycle. In the cross
examination of the said witness, except some denial suggestions
nothing material could be brought to demolish his evidence in chief.
The learned Tribunal having discussed the same at paragraphs 6 and 7
of the impugned judgment, has fixed the negligence on the part of the
driver of the motorcycle. No fault is seen in the approach of the
learned tribunal and as such, his finding with regard to negligence on
the part of the driver of the motor cycle is confirmed.
7. Next coming to the question of quantum of compensation, it is
submitted by Mr. Satpathy that the date of birth of the deceased being
14th March, 1971 mentioned in the I.D. card under Ext.7, the
multiplier should be '14' in terms of principles laid down in the case
of Sarla Verma v. DTC, reported in (2009) 6 SCC 121. But the
learned tribunal has mistakenly applied multiplier '15' and further
took 40% towards future prospects which should be 25%.
8. Upon examination of the said contention it reveals that Ext.7 is
the Identity card which was issued by the Ministry of Textile to reveal
the deceased as a handloom weaver. This document has been relied by
the claimants and brought on record from their side. Therefore the
date of birth as mentioned in the said exhibit appears to be more
authentic than any other document like the post mortem report. But
the tribunal without any discussion on the same, based on the
recording in the PM report, took the age of the deceased as 39 years
and applied the multiplier '15' taking him within the age group of 36
to 40 years. This approach of the Tribunal is seen as illegal for the
reason that Ext.7 is the document which has been relied on by the
claimants and the contents thereof has also been relied on by the
claimants. Therefore the date of birth of the deceased as stated in
Ext.7 has to be accepted instead of the recording made in the PM
report. Taken so, if the date of birth of the deceased is 14 th March,
1971, then his age on the date of accident would be more than 40
years, i.e. between the age group of 41-45 years. So the right
multiplier would be '14' in terms of the principle decided in Sarla
Verma case (supra).
9. On the same principle when the deceased is taken to be more
than 40 years, the extent of future prospects to be considered for the
purpose of compensation should be 25% as per the principles
enumerated in the case of National Insurance Company Ltd. v.
Pranay Sethi and Others (2017) 16 SCC 680.
10. Rival contentions have further been raised with regard to
monthly income of the deceased. As per the insurer - Appellant it
should have been taken as prescribed for skilled labourers, whereas
the contention of the claimants in the cross-objection is to the effect
that as per evidence of the employer, i.e. P.W.2 his monthly income
should be Rs.9,625/-.
11. First to see the evidence of P.W.2, he has orally deposed that
the monthly salary of the deceased was Rs.9,625/-. But he could not
be able to produce any document in proof of the same. Neither he was
able to produce the register of employment or any register relating to
payment of wages to the employees before the tribunal. The only
document produced by P.W.2 is the salary certificate under Ext.8. The
said salary certificate under Ext.A is undoutedly a private document
and is not sufficiently proved on record to establish its credibility. In
such circumstance, the learned tribunal has rightly discarded the same.
12. Now coming to decide the exact income of the deceased,
admittedly no conclusive evidence has been brought on record by
either party. Thus, the approach of the learned Tribunal in fixing it at
Rs.7000/- is seen to be balanced one keeping in view the avocation
and skill of the deceased. Thus while rejecting the contentions of the
insurer and the claimants either to reduce or to enhance the same,
monthly income ofRs.7000/- as fixed by the Tribunal is confirmed.
13. Accordingly the computation of compensation is drawn as
follows:-
Sl. Head Calculation
No.
i) Annual income of the deceased Rs.7000/- X 12 =
84,000/-
ii) 25% of the annual income comes to Rs.21,000/-
iii) Total annual income after adding Rs.84,000/- +
future prospects of 25% 21,000/- =
Rs.1,05,000/-
iv) Deducting 1/4th towards personal Rs.78,750/-
expenses, the annual loss of
dependency comes to
v) Applying multiplier '14' thereto Rs.78,750/- X 14 =
Rs.11,02,500/-
vi) Adding loss of estate, funeral Rs.11,02,500/- +
expenses and loss of consortium the 70,000/- =
amount comes to Rs.11,72,500/-
14. It is seen that the learned tribunal has forgotten to add filial
consortium for the mother Respondent No.4 and parental consortium
to the minor children, viz., Respondent Nos.2 and 3. So, on that count
Rs.40,000/- for Respondent No.4 and another Rs.40,000/- to
Respondent Nos.2 and 3 jointly are liable to be added. Thus the total
compensation comes to Rs.11,72,500/- + Rs.80,000/- = Rs.12,52,500/-
which is rounded up to Rs.12,60,000/-. The rate of interest is reduced
to 6% from 7%.
15. Accordingly the Appellant - insurer is directed to deposit the
compensation amount of Rs.12,60,000/- (twelve lakh sixty thousand)
before the learned 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 - Respondents on such terms and proportion to be
decided by the learned Tribunal.
16. The statutory deposit made by the appellant before this court
along with accrued interest be refunded to the Appellant - insurer on
proper application and on production of proof of deposit of the
awarded amount before the tribunal.
17. The appeal is disposed of.
18. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
